Cheryl Perdue Freeman v. Charles Dewayne Freeman

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REL: 11/10/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2100023 C h e r y l Perdue Freeman v. C h a r l e s Dewayne Freeman Appeal from Montgomery C i r c u i t (DR-00-1238.01) MOORE, Court Judge. Cheryl judgment Perdue Freeman o f t h e Montgomery ("the f o r m e r w i f e " ) Circuit m o d i f i c a t i o n and contempt proceeding Court appeals i n a from a postdivorce i n v o l v i n g h e r and Charles 2100023 Dewayne F r e e m a n reverse ("the former husband"). Circuit History p a r t i e s were d i v o r c e d by a judgment o f t h e Montgomery C o u r t on F e b r u a r y 2 6 , parties, primary pursuant physical support. The residence, but which 2001. That judgment adopted to former she be which of the the wife was ordered wife parties' was to was children awarded and and o r d e r e d t o pay also pay awarded the the former the child marital husband i n t h e m a r i t a l r e s i d e n c e , t h e amount determined by a and agreement") between former awarded v i s i t a t i o n of the e q u i t y was to custody f o r m e r h u s b a n d was portion and 1 i n c o r p o r a t e d a s e t t l e m e n t agreement ("the the affirm i n part i n part. Procedural The We procedure set out in a of the agreement. On to February show cause contempt for 28, why her divorce judgment. ordered t o pay the 2008, the He Only appeal i s former former violation also wife of husband should certain requested that h i s a t t o r n e y f e e s and former w i f e f i l e d 1 the an a n s w e r a n d the p r o c e d u r a l h i s t o r y included. 2 filed be in provisions of the the wife former On May 9, a counterpetition relevant motion held costs. not a to the be 2008, t o show issues on 2100023 cause for why the his violation judgment. the She former visitation answered former husband of certain with the be provisions represent wife's former w i f e , the to the was child-support trial in contempt of the divorce among o t h e r The court appointed of the appointed on and Upon an his husband motion a guardian children. based things, former counterpetition. interests also held obligation parties' children. former the coordinator not a l s o p e t i t i o n e d to modify, husband's the should ad A of litem parenting agreement of the parties. Following ore tenus proceedings, a j u d g m e n t on A p r i l modified the modified former the prospectively wife in ordered his declined each from her to to party hold to pay entered things, husband's $1,500 t o for pay visitation husband's the the the former equity a portion the in husband of 3 divorce husband's former wife the with the owed t h e the children, obligation $1,700 a month, h e l d former of trial child-support violating amount t h e portion court i n w h i c h i t , among o t h e r 2010, former contempt determined the as 22, the the former judgment attorney former marital and fees, husband residence, i n contempt, and fees guardian for the ordered ad 2100023 litem and the former wife denied by Ala. R. parenting filed operation C i v . P. October a 4, The coordinator. postjudgment of law on May motion; August former wife On filed 23, 2 24 , that 2010. 3 2010, the motion was Rule 59.1, her n o t i c e of appeal on 2010. Discussion I. On appeal, the former court erred i n modifying notes that visitation trial the p a r t i e s issue court's because, submit to she an ("the judgment says, Visitation wife first argues the trial the former husband's v i s i t a t i o n . reached a settlement visitation d i d not screen" comport and agreement with comply that any on the the agreement the former with She that a g r e e m e n t " ) and i t d i d not r e q u i r e that "alcohol that husband treatment T h e 3 0 t h d a y a f t e r A p r i l 2 2 , 2 0 1 0 , was May 2 2 , 2010, w h i c h f e l l on a S a t u r d a y . Thus, p u r s u a n t t o R u l e 6 ( a ) , A l a . R. C i v . P., the time f o r f i l i n g a postjudgment motion was e x t e n d e d u n t i l M o n d a y , May 2 4 , 2 0 1 0 . 2 T h e 9 0 t h d a y a f t e r May 2 4 , 2 0 1 0 , was A u g u s t 2 2 , 2010, w h i c h f e l l on a S u n d a y . T h u s , p u r s u a n t t o R u l e 6 ( a ) , A l a . R. Civ. P., t h e f o r m e r w i f e ' s p o s t j u d g m e n t m o t i o n was deemed d e n i e d b y o p e r a t i o n o f l a w on M o n d a y , A u g u s t 2 3 , 2 0 1 0 . See F i r s t A l a b a m a S t a t e B a n k v . McGowan, 758 So. 2 d 1116 ( A l a . Civ. A p p . 2 0 0 0 ) , a n d R i c h b u r g v . C r o m w e l l , 428 So. 2 d 621 (Ala. 1983). 3 4 2100023 recommendations parenting resulting coordinator overnight visitation that trial "[a] court from that considered with screen allowing the children. may a d o p t before We him to the have initially or r e j e c t such parts note of the [ p a r t i e s ' ] a g r e e m e n t a s i t deems p r o p e r from the s i t u a t i o n of the p a r t i e s as shown b y t h e e v i d e n c e . " Junkin So. 2 d 7 9 7 , 799 ( A l a . C i v . A p p . 1 9 9 4 ) . In the present with case, before the parenting coordinator the t r i a l , the p a r t i e s had reached visitation. The following the parties, 647 along and t h e c h i l d r e n ' s guardian l i t e m , b o t h o f whom h a d b e e n a p p o i n t e d that v. J u n k i n , by t h e c o u r t , a settlement exchange took ad announced as t o t h e i s s u e o f place before the trial: "THE COURT: A l l r i g h t . H e r e ' s w h a t i t see i f t h i s w o r k s . The [ f o r m e r husband] w i l l submit t o alcohol screen, follow recommendations i n or coordinator. [ C O U N S E L FOR THE FORMER H U S B A N D ] : T h a t ' s great. "[PARENTING to put COORDINATOR]: a n g e r management i n t h e r e , ma'am. T h a t ' s c o r r e c t . And i t needs t o o ,by a l c o h o l yes, "THE COURT: O k a y . A l l r i g h t . O t h e r w i s e , v i s i t s o n l y . Does t h a t c l e a r t h a t u p ? daytime 5 2100023 " [ C O U N S E L FOR THE Thank y o u . Y o u r Honor. "THE COURT: Well, FORMER we n e e d HUSBAND]: t o be clear. " [ C O U N S E L FOR THE FORMER H U S B A N D ] : We'd l i k e t o a v o i d m o t i o n s t o c l a r i f y . "[COUNSEL FOR THE FORMER W I F E ] : The regard trial court's judgment t o t h e former husband's stated I t does. Absolutely. I'm clear." the following visitation: " P r i o r to t r i a l , the p a r t i e s advised the Court t h a t t h e y h a d r e a c h e d an a g r e e m e n t r e g a r d i n g t h e visitation i s s u e f o r t h e two m i n o r c h i l d r e n Said agreement i s fully set forth below. The parties' agreement provides that the Parenting C o o r d i n a t o r s h a l l remain i n p l a c e i n t h e case and that he s h a l l provide direction s o a s t o make recommendations r e g a r d i n g t h e terms and c o n d i t i o n s of t h e Former Husband's visitation. "B. Overnight visitation i s suspended by agreement u n t i l c e r t a i n terms and c o n d i t i o n s a r e o r can be w o r k e d o u t b e t w e e n t h e p a r t i e s . Specifically, in o r d e r f o r t h e Former Husband's visitation to increase from a l t e r n a t i n g Saturdays t o overnight, the Former Husband has a g r e e d t o i m m e d i a t e l y enroll in a n d s u c c e s s f u l l y c o m p l e t e an a n g e r management c o u r s e . A f t e r t h e c o m p l e t i o n o f t h e a n g e r management course t h e Former Husband shall file proof of c o m p l e t i o n w i t h both c o u n s e l and t h e Court. 6 with 2100023 "E. The Former Husband s h a l l s u b m i t t o an a l c o h o l o r s u b s t a n c e abuse s c r e e n and any r e q u i r e d or recommended t r e a t m e n t t h e r e a f t e r i f t h e r e s u l t o f said screening i s positive." Although the judgment does provide that the husband m u s t s u b m i t t o an a l c o h o l o r s u b s t a n c e - a b u s e and required any requirement whether the visitation testimony use, is or recommended t r e a t m e n t , not former with former wife's a l c o h o l use there was and no judgment, enter a decided the Accordingly, to that there that considering overnight was limited the former husband's alcohol interrupted questioning regarding the need f o r evidence that issue. i t i s clear Thus, we the with cannot that former subject Further, that comporting on trial the conclude adduced we reverse at the the does not r e q u i r e the former husband 7 court parties' that trial. judgment by husband's that because the from the language to r e j e c t the p a r t i e s ' v i s i t a t i o n evidence note allowed Although court attorney be screening i t s e f f e c t on t h e c h i l d r e n , p o i n t i n g o u t judgment agreement. condition should regarding the t r i a l p a r t i e s had s e t t l e d the a children. at the t r i a l point as husband the a t one the included we former the to visitation trial court agreement based See to the intended of Junkin, extent on supra. that i t t o s u b m i t t o an a l c o h o l o r 2100023 substance-abuse screening or recommended t r e a t m e n t and c h i l d r e n , and judgment that agreement on we allowed remand accurately the issue required as a c o n d i t i o n t o c o n s i d e r i n g w h e t h e r t h e f o r m e r h u s b a n d s h o u l d be the t o p a r t i c i p a t e i n any of this overnight cause reflects visitation the for the with of entry parties' a settlement visitation. B The former wife including a l s o argues t h a t the because, she parties' visitation regarding the that the court, Kiel, reverse 1992) that f o r m e r w i f e ' s use thus, 3d the t r i a l t h a t the see So. says, agreement former wife and, 51 court a p r o v i s i o n r e q u i r i n g both p a r t i e s to consuming a l c o h o l i c beverages w h i l e custody trial we 1058, the c h i l d r e n are evidence there was of a l c o h o l . to cannot consider argue this no We note, issue to i t on ( A l a . C i v . App. a l s o A n d r e w s v . M e r r i t t O i l Co., cannot consider 8 their and 2010) 612 So. the 2d arguments 409, trial Kiel ("We to the t r i a l the however, appeal. c o u r t ' s j u d g m e n t on t h e b a s i s o f an Court in from from [an a p p e l l a n t ] d i d n o t p r e s e n t ("This abstain in provision deviated failed 1067 erred v. cannot argument court."); 410 (Ala. raised for the 2100023 first t i m e on a p p e a l ; r a t h e r , evidence and arguments c o n s i d e r e d by II. The its our r e v i e w i s r e s t r i c t e d by not trial court."). allowing that the t r i a l her to issue court exceeded subpoenas tecum t o t h e f o r m e r h u s b a n d ' s b u s i n e s s a s s o c i a t e s and She by also that allowing her husband's former the argues accountant not Subchapter former that, the "S" husband because former In the to is a a subpoena liability income error clients. i t s discretion duces tecum corporation The former at issue, was We the Rule former 45, A l a . R. husband's p e r month. per The month. income," see former w i f e t e s t i f i e d Thus, Rule the 32(C), parties' Ala. 9 R. that he t h a t she e a r n s "combined Jud. former App. CS-41 see Rule $13,951 $1,402.23 adjusted Admin., P. "Child- earns indicated asserts of the 32(E), Admin., the conclude, form, Jud. the evidence regarding discoverable. See of which S u p p o r t - O b l i g a t i o n Income S t a t e m e n t / A f f i d a v i t " A l a . R. to wife r e g a r d i n g the d i s c o v e r y harmless. case, duces requesting information regarding s u p p o r t was i n c o m e was present issue c o u r t exceeded shareholder. husband's any trial limited child however, t h a t husband's the the Discovery former w i f e next argues discretion the to exceeds gross the 2100023 uppermost Rule 32, limit A l a . R. s u p p o r t was and See, e.g., App. the 1995). child-support Jud. Admin, required the a b i l i t y expenses of and, 4 t o be b a s e d v. The Dyas, former 683 So. wife the a b i l i t y children to pay were r e g a r d i n g the immaterial. judgment on Thus, this we 971, The and issue. former See III. Rule 973-74 ability reverse 45, child needs. (Ala. Civ. the children's clearly the needs of established, the any A l a . R. trial App. of former further f i n a n c e s would the in children f o r those Because husband's to Child of former husband the also decline forth amount that f o r those needs. h u s b a n d t o m e e t t h o s e n e e d s was information 2d testified established set on t h e n e e d s o f t h e are $4,556.55 p e r month. the thus, the of the former husband t o pay Dyas has schedule be court's P. Support A The former w i f e argues discretion by increasing that the the t r i a l former c o u r t exceeded i t s husband's child-support T h e p r e f a c e t o R u l e 32 s t a t e s t h a t t h e a m e n d e d r u l e a p p l i e s t o " a l l new a c t i o n s f i l e d o r p r o c e e d i n g s i n s t i t u t e d on or after January 1, 2009. Any actions or proceedings i n s t i t u t e d b e f o r e J a n u a r y 1, 2 0 0 9 , s h a l l be g o v e r n e d b y R u l e 32 as i t r e a d b e f o r e J a n u a r y 1, 2 0 0 9 . " The p r e s e n t p r o c e e d i n g was i n s t i t u t e d b e f o r e J a n u a r y 1, 2 0 0 9 ; t h u s , R u l e 32 a s i t r e a d b e f o r e J a n u a r y 1, 2 0 0 9 , i s a p p l i c a b l e i n t h i s c a s e . 4 10 2100023 obligation parties' limit b y o n l y $200 p e r m o n t h . As noted previously, the combined a d j u s t e d g r o s s income exceeds the uppermost of the c h i l d - s u p p o r t schedule set forth i n Rule 32. "When t h e c o m b i n e d a d j u s t e d g r o s s i n c o m e e x c e e d s the uppermost l i m i t of the c h i l d support schedule, t h e amount o f c h i l d s u p p o r t a w a r d e d must r a t i o n a l l y r e l a t e t o t h e r e a s o n a b l e and n e c e s s a r y needs o f t h e c h i l d , t a k i n g i n t o account the l i f e s t y l e to which t h e c h i l d was a c c u s t o m e d a n d t h e s t a n d a r d o f l i v i n g the c h i l d enjoyed before the d i v o r c e , and must r e a s o n a b l y r e l a t e t o the o b l i g o r ' s a b i l i t y t o pay f o r t h o s e n e e d s . ... To a v o i d a f i n d i n g o f an a b u s e o f d i s c r e t i o n on a p p e a l , a t r i a l c o u r t ' s j u d g m e n t o f c h i l d s u p p o r t must s a t i s f y b o t h p r o n g s . 2 " We distinguish divorce proceedings from m o d i f i c a t i o n p r o c e e d i n g s b e c a u s e we h a v e h e l d t h a t e x o r b i t a n t spending i n i t s e l f i s not s u f f i c i e n t to prove a substantial and c o n t i n u i n g change in c i r c u m s t a n c e s i n o r d e r to modify a p r i o r judgment of s u p p o r t . M a k a r v . M a k a r , 643 S o . 2 d 1378 ( A l a . C i v . A p p . 1 9 9 4 ) . I f an o b l i g o r p a r t i c i p a t e s i n a n d a g r e e s to a certain lifestyle for a child during a m a r r i a g e , t h e n t h a t o b l i g o r s h o u l d be e x p e c t e d t o c o n t r i b u t e t o t h e r e a s o n a b l e and n e c e s s a r y needs o f the c h i l d f o r the c o n t i n u a t i o n of that lifestyle after divorce." 2 Dyas, 683 In entered So. the 2d a t 973-74. present case, between proceedings, the the former Alabama; the former at the parties in w i f e was h u s b a n d was 11 time the employed unemployed the agreement original with divorce the State at that was time. of The 2100023 former wife December was o f f from 2 0 0 3 ; she t e s t i f i e d a year at that started also laid time. her that worked p a r t - t i m e has never jobs. a p o s i t i o n as a m e d i a a i d e earning $16,824 laid o f f from the former $13,951 year, per children's needs The have divorce. expenses a r e $4,556.55 able her She the State f o r Carr highest form wife increased testified testimony. noted has wife School she was previously, that he testified earns that the since the the c h i l d r e n ' s actual and i n t r o d u c e d documentation testified She to a f f o r d those expenses since tremendously that and Junior High income As wife the former indicated former p e r month o f f , the former 2009, in $52,900 become p r o f i t a b l e the State. CS-41 month. parties' supporting her her job with husband's laid In August secured per with t h a t she had been e a r n i n g A f t e r s h e was a business job she with help that had been from her p a r e n t s , who h a d r e c e n t l y d i e d , b u t t h a t s h e h a d a l s o i n c u r r e d some credit- card to hire a debt. person She a l s o to clean testified her someone c u t h e r g r a s s . 5 house The that she had been a b l e occasionally and that former husband t e s t i f i e d She t e s t i f i e d t h a t the former p a r t i e s ' l a w n mower i n t h e d i v o r c e . 5 12 husband was she that awarded has he the 2100023 had given the periodically, former wife but not every extra time money he was f o r the asked. In support of her argument, the former w i f e v. McGowin, 991 opinion). court So. 2 d 735 I n McGowin, had exceeded obligation ( A l a . C i v . App. the main o p i n i o n So. 2d at 2008) held l e s s than the undisputed 743. We conclude that needs needs. the present and, needs parties were of the while the previously, this court participates i n and agrees t o a c e r t a i n l i f e s t y l e during a marriage, contribute for then 683 S o . 2 d a t 9 7 3 - 7 4 In App. Holman 1983), exceeded that to the reasonable the continuation v. this held obligor an married. that case be were As " [ i ] f an should is original children established has trial reasonable divorce the the child-support f r o m M c G o w i n b e c a u s e M c G o w i n was thus, (plurality that distinguishable action McGowin t o meet t h o s e o f t h e c h i l d r e n when t h e h u s b a n d was a b l e 991 cites i t sd i s c r e t i o n i n s e t t i n g a t h a t was children noted obligor for a child expected to and n e c e s s a r y needs o f t h e c h i l d of that lifestyle after divorce." Dyas, n.2. Holman, court 435 held So. that 2d 98, 101-02 (Ala. Civ. a trial court had not i t sdiscretion in increasing child support by only 13 2100023 $175 per month even t h o u g h the o b l i g e e had expenses i n c u r r e d i n m a i n t a i n i n g from $7 , 8 4 5 . 7 5 obligor's that in income had same p e r i o d . conclude that increasing trial only the $200 v. court, this court is not coupled case, with the to wife did c h i l d r e n had she as of the increased children. to what divorce. and The a 862, during we cannot discretion that she not testimony (Ala. Civ. the She $4,556.55 to spent to this itself change In to the what in child present specific s i n c e the d i v o r c e , nor stated expenses that included were their $4,556.55 per i n expenses 14 as App. needs of the pay." children's simply had substantial testify increased in child-support wife's 864 increased ability the expenses. 2d prove needs of the time and former husband i n h i s b r i e f parent's former testify its former increased So. case, monthly the i n s t e a d , i t i s the the present exceeded despite the 1981" stated that " [ e ] x o r b i t a n t spending i n sufficient circumstances; i n the M o r g a n , 628 1 9 9 3 ) , a c a s e c i t e d by in "her increased f r o m $33,900 t o $52,980 husband's children's In C a s s i c k $1 9, 6 2 1 . 4 5 court former that the h o u s e h o l d [ h a d ] increased the by to Similarly, the obligation regarding 1975 testified did at the needs had month $800 p e r on the month 2100023 for extracurricularactivities pointed the out on children's expenses and family vacation to the forms action from care the $542 $332.67 the increased f r o m $164 decreased B a s e d on the foregoing, expenses had indicated and of that, former wife The the proceedings we $850 t o conclude as on the as trial part court of could able thus, was able 864 (noting income that to pay for indicated. "the record the See, does and 15 child- court necessary former wife merely the result former also t h a t he children's wife. concluded had the given former expenses and, c h i l d r e n ' s needs e.g., not this trial the have t o c o n t r i b u t e more t o t h e stated the a d d i t i o n a l money f r o m t i m e t o t i m e , been CS- from t h a t her the former husband t e s t i f i e d had a nothing. that much of health-insurance c h i l d r e n ' s reasonable wife her and in for former wife's $ 4 , 5 5 6 . 5 5 a m o u n t was spending supra. although the from $125 children's portion The As included cards, t o $322.94 b u t increased t h a t the exorbitant Cassick, the not Christmas f o r the expenses. former wife c h i l d r e n ' s monthly had have found t h a t for divorce expenses could the Cayman I s l a n d s . original indicate that premium had miscellaneous cross-examination, deer p r o c e s s i n g , 41 and than Cassick, indicate ... 628 So. that 2d the 2100023 wife i s u n a b l e t o meet h e r Accordingly, as to the we issue share of [ t h e d e c l i n e to reverse of the amount o f the children's] costs"). trial child court's support. judgment 6 B. The its former wife discretion a l s o argues t h a t the by failing to modify the child-support obligation retroactively. modify c h i l d support retroactively the sound d i s c r e t i o n So. 2d 372, whether is an 379 award dependent Willis, 45 present case, continued wife or her court on So. at (Ala. of 347, the least App. 2005). its Civ. the T h u s , we discretion the Nave, is appropriate case." App. Willis 2010). out, request the of declining to v. In the trial was the former cannot conclude t h a t the in 942 determination support f a c t s of at Nave v. "The former husband p o i n t s attorney. exceeded to Civ. times husband's i s a d e c i s i o n committed court." (Ala. exceeded to trial 349 three former "The the specific court determination retroactive child the 3d as of trial modify trial the The former wife also argues that the trial court i m p r o p e r l y c o n s i d e r e d the f a c t t h a t her c h i l d from a p r e v i o u s m a r r i a g e had a t t a i n e d the age of 19 years even though, p u r s u a n t t o the a g r e e m e n t , the f o r m e r h u s b a n d had not been r e q u i r e d to support t h a t c h i l d . We n o t e , h o w e v e r , t h a t t h e former w i f e f a i l e d to argue t h i s i s s u e to the t r i a l court, a n d , t h u s , we c a n n o t c o n s i d e r i t on a p p e a l . K i e l , supra; and Andrews, supra. 6 16 2100023 former husband's c h i l d - s u p p o r t o b l i g a t i o n r e t r o a c t i v e l y . Volovecky 2004) v. ( i n which continuance that Hoffman, the declining 903 this to court modify 2d court by o b l i g e e ' s trial So. the not 850 considered attorney had 844 , (Ala. exceeded father's C i v . App. request as a f a c t o r i n for a determining i t s discretion child-support See in obligation retroactively). IV. The its Contempt Former Wife former wife next argues that the t r i a l d i s c r e t i o n by f i n d i n g h e r i n contempt. parties' former incorporated "12. marital into residence, the divorce REAL court With regard t h e agreement judgment provided: PROPERTY: "a. ... The P a r t i e s a g r e e t h a t t h e [former] wife shall be the sole and a b s o l u t e o w n e r o f t h e m a r i t a l home, s u b j e c t to t h e e x i s t i n g f i r s t m o r t g a g e . "b. The [former] wife shall be r e s p o n s i b l e f o r any mortgage i n d e b t e d n e s s on the property, i n c l u d i n g r e p a i r s and maintenance, and s h a l l h o l d t h e [ f o r m e r ] husband harmless therefrom. " c . The [ f o r m e r ] h u s b a n d s h a l l e x e c u t e a l l documents n e c e s s a r y t o convey a l lh i s right, title, and i n t e r e s t i n the real property to the [former] wife. 17 exceeded to the that was 2100023 " d . U p o n t h e e x p i r a t i o n o f t h r e e (3) years from the date of the f i n a l decree of divorce [i.e., i n February 2004], the p a r t i e s s h a l l o b t a i n and e q u a l l y d i v i d e t h e cost of a professional real estate appraisal of the m a r i t a l residence, i n order t o determine the f a i r market value a t that time. The [ f o r m e r ] w i f e s h a l l then execute a note t o the [ f o r m e r ] husband, payable no l a t e r than the e i g h t h (8th) anniversary of the f i n a l decree of divorce, or until the [former] wife remarries, w h i c h e v e r f i r s t o c c u r s , i n t h e amount o f half of the equity in the marital residence " e . The [ f o r m e r ] w i f e s h a l l g i v e t h e [ f o r m e r ] h u s b a n d a s e c o n d m o r t g a g e on t h e p r o p e r t y to secure the note d e s c r i b e d i n the immediately p r e c e d i n g paragraph. " f . The [ f o r m e r ] w i f e w i l l cooperate i n any and a l l e f f o r t s t o have t h e [ f o r m e r ] h u s b a n d ' s name r e m o v e d f r o m t h e e x i s t i n g n o t e a n d f i r s t m o r t g a g e w i t h i n one y e a r from t h e date o f t h e f i n a l decree, and w i l l sign any document intended f o r that purpose, provided that the [former] wife s h a l l n o t be o b l i g a t e d t o i n c u r any c o s t i n so doing. The [ f o r m e r ] wife agrees to investigate the p o s s i b i l i t y of refinancing t h e m a r i t a l r e s i d e n c e i n t o h e r name, a n d t o make a p p l i c a t i o n f o r refinancing i fi t should be feasible and economically a d v a n t a g e o u s f o r h e r t o do s o . " At several the t r i a l , letters regarding the former husband he h a d h a d h i s a t t o r n e y the foregoing provisions. 18 introduced send copies the former Specifically, of wife the f i r s t 2100023 letter, the w h i c h was d a t e d D e c e m b e r 6, 2 0 0 4 , s e v e r a l m o n t h s F e b r u a r y 2004 t r i g g e r i n g date f o r the p a r t i e s t o have a p p r a i s a l conducted, requested that the former wife appraiser the 12.d. to conduct of the agreement. former wife had not appraisal contemplated The worked the f o r m e r w i f e had t e l e p h o n e d the a t t o r n e y ' s that she the f i r s t s h e was had not therefore letter she was not attorney and When a s k e d i f she could call, asked the p a r a l e g a l that she had attorney paragraph that testified office that after had stated that t h a t she had n o t p a i d , and that The former not dispute the former that she wife, telephoned had attorney that she were had husband, the paralegal some m e d i c a l b i l l s he stated A 7 an there she that f o r the in the former wife responsible. testified had that former p r e m i u m s due husband's she and submitted to the hand, that husband's unemployed, t h a t medical-insurance other former letters. who received f o r the to those the suggest former husband t e s t i f i e d responded after to returned wife's return could her the her on the former call. testimony telephone not. A l t h o u g h t h e f o r m e r h u s b a n d t e s t i f i e d t h a t he h a d h a d h i s a t t o r n e y s e n d t h e l e t t e r s , he a d m i t t e d t h a t he h a d n e v e r a s k e d t h e f o r m e r w i f e i f he c o u l d s e n d an a p p r a i s e r t o t h e m a r i t a l residence. 7 19 2100023 The former wife also testified f o r m e r h u s b a n d t h a t , s i n c e s h e was for the a p p r a i s a l , she appraisal former fee. wife The had would former asked him that had told the u n e m p l o y e d , i f he w o u l d reimburse husband, to she him however, pay the for half of the that denied appraisal pay the fee. The f o r m e r w i f e a l s o t e s t i f i e d t h a t the f o r m e r husband had refused to her discuss the a p p r a i s a l and disregard his attorney's not comply would The not her cooperate former residence with wife trial court he She later i n determining and that that refused the i n 2006 she had told t e s t i f i e d t h a t she o b l i g a t i o n s because h u s b a n d b u t t h a t he h a d The letters. testified appraised that had the former amount o f h i s she had contacted the the could husband equity. marital former to d i s c u s s the i s s u e w i t h found: "9. That t h e F o r m e r W i f e i s h e r e b y f o u n d i n w i l l f u l contempt of Court f o r her w i l l f u l f a i l u r e or r e f u s a l t o c o m p l y w i t h [ t h e a g r e e m e n t ] . The F o r m e r Wife agreed to p r o v i d e the Former Husband a second m o r t g a g e on t h e ... m a r i t a l r e s i d e n c e a n d s e c u r e t h e note The Former Husband executed a Quitclaim/Warranty Deed i n f a v o r o f t h e F o r m e r W i f e w h i c h d i v e s t e d him o f a l l r i g h t , t i t l e and i n t e r e s t i n the m a r i t a l r e s i d e n c e but s u b j e c t to payment of h i s e q u i t a b l e i n t e r e s t . The t e r m s a n d c o n d i t i o n s a r e f u l l y s e t o u t i n t h e p a r t i e s ' a g r e e m e n t . The F o r m e r W i f e a g r e e d t o s e c u r e a s e c o n d m o r t g a g e on t h e home i n f a v o r of the Former Husband w i t h i n t h r e e y e a r s of the F i n a l Decree o f D i v o r c e and f u l l y pay t h e Former 20 to her. 2100023 Husband h i s f u l l e q u i t a b l e i n t e r e s t not l a t e r than e i g h t y e a r s p o s t - d i v o r c e . T h a t t i m e h a s come a n d gone and i s t h e b a s i s of the Former Husband's contempt p e t i t i o n pending before t h i s Court. I t i s undisputed that the Former Wife refinanced the m a r i t a l home, i n c r e a s e d t h e a m o u n t o f t h e m o r t g a g e by more t h a n $42,000, a d d e d a s e c o n d m o r t g a g e t o t h e home b u t f a i l e d t o p a y t h e F o r m e r H u s b a n d a n y e q u i t y as a g r e e d . " The former not willfully the equity wife fail first t o pay the former because, she says, time f o r h e r t o make Ala. R. C i v . P. failure lawful by writ, hearing payment. contempt' o f any p e r s o n i s still added)). The argues husband the t r i a l subpoena, process, i t s nature (emphasis that ("'Civil or refusal specifically record she d i d his portion court See R u l e extended of the 7 0A(a)(2)(D), means w i l l f u l , continuing t o comply a order, capable that of rule, being reveals with court's o r command complied that, at that with." a motion on J a n u a r y 7, 2 0 0 9 , t h e f o l l o w i n g e x c h a n g e t o o k place: "[ATTORNEY FOR THE FORMER H U S B A N D ] : Y o u r H o n o r , t h e r e ' s o n e o u t s t a n d i n g i s s u e I'm c o n c e r n e d a b o u t . The f i n a l hearing i s s e t f o r March 1 2 t h , but the o r d e r t h a t we're here on, t h e m a r i t a l e q u i t y t h e e q u i t y i n t h e m a r i t a l r e s i d e n c e i s due b y F e b r u a r y . So d o e s t h e [ f o r m e r ] w i f e p a y , a n d i f s h e d o e s , how much? "THE COURT: No. U n l e s s y o u a n d [ t h e a t t o r n e y f o r t h e f o r m e r w i f e ] c a n a g r e e on s o m e t h i n g w i t h r e g a r d t o t h a t i s s u e , I t h i n k we h a v e t o h e a r i t on M a r c h 1 2 t h . And q u i t e f r a n k l y , i f you want t o h e a r t h a t 21 2100023 i s s u e o n l y on M a r c h 1 2 t h , t h e n we c a n do t h a t . B u t I t h i n k u n t i l I h e a r i t , u n l e s s y o u a g r e e , I'm g o i n g to e x t e n d t h e time and w i l l not hold [the former w i f e ] i n c o n t e m p t o f C o u r t b e c a u s e s h e d i d n ' t do i t b y t h e 2 6 t h o f F e b r u a r y when t h e r e a r e t h i n g s t h a t have been f i l e d . We'll take a look at the t o t a l i t y of those circumstances." Based that on t h a t the t r i a l failing exchange, court The former wife discretion borrowing mortgage the to the extent funds i n t h e agreement Thus, extent that the t r i a l i t held borrowing additional mortgage on t h e m a r i t a l exceeded failure note, wife to the extent i n contempt f o r i t exceeded i t s d i s c r e t i o n i n doing so. that when she former wife to give court exceeded agree. the There p r o h i b i t i n g the former exceeded when wife she first was wife from i t s discretion i n contempt refinanced no to f o rher the first home. further i t s discretion refinanced We the former funds court i th e l d her i n contempt f o r on t h e m a r i t a l r e s i d e n c e . so. The the former that, also argues that the t r i a l additional provision doing conclude t o pay the former husband h i s p o r t i o n of the e q u i t y i n the m a r i t a l r e s i d e n c e , its held we by the former argues finding husband that the trial h e r i n contempt a second f o r her mortgage. h o w e v e r , t h a t much o f t h e e v i d e n c e was d i s p u t e d 22 court We on t h a t 2100023 issue. judge and "In ore of facts i t should worthy (Ala. had the tenus proceedings, of accept of a favor. The trial court husband had made an albeit not. not The wife's until trial testimony contacted Thus, the trial the exceeded contempt w i t h The finding could court failed have to former could regard have marital residence was t a k i n g out the to the she a second mortgage. 23 out says, We former wife husband's the former agreement, an had former appraisal in discuss the the that issue. former provision regarding that a l s o argues t h a t the because, 434 former wife obtained the that trial the former the p r o v i s i o n of taking 431, the the finding for 2d that with conclude in considers former concluded cannot i t So. sole witnesses, d i s b e l i e v e d the husband We i n contempt the had comply w i t h that 627 that to to in also she the believed and i s the t h a t the comply have i t s discretion former wife her could the second mortgage. court Clemons, mortgage that, after she willfully which December 2004, 2006, wife testimony undisputed effort court court of v. I t was second trial credibility that Clemons 1993). executed the only belief." C i v . App. not and the agreement. trial a court second she note, wife in erred by mortgage on d i d not know she however, t h a t the 2100023 trial that c o u r t c o u l d have d i s b e l i e v e d t h e f o r m e r w i f e ' s she d i d not Clemons, the 627 former agreement Thus, we contempt So. 2d giving no 666 the error as t o t h i s i t former See, proper where 1986) the comply with second mortgage. a court's e.g., ( A l a . C i v . App. Hudson finding v. Hudson, (holding that former wife the her i n 494 contempt "attempted [ t h e d i v o r c e judgment] and c l o u d t h e t i t l e Former to [to by t r a n s f e r r i n g h e r i n t e r e s t by deed Husband's The f o r m e r w i f e discretion former husband i n the t r i a l issue. to sister"). V. its mortgage. impossible made certain marital property] her out a second wife d i r e c t l y thwart to taking By t a k i n g o u t a s e c o n d m o r t g a g e , find was s h e was So. 2d a t 434. by 664, finding know testimony husband provided Equity i n the M a r i t a l Residence also argues that the t r i a l i n determining i s owed by t h e amount the court of e q u i t y former wife. The exceeded that the agreement t h a t t h e f o r m e r h u s b a n d ' s e q u i t y " s h a l l be d e t e r m i n e d by t a k i n g t h e f a i r market value and s u b t r a c t i n g t h e r e f r o m then c u r r e n t f i r s t mortgage p a y - o f f costs of s a l e , provided, shall n o t be greater however, than amount and t h e a n t i c i p a t e d that such a n t i c i p a t e d costs 7% o f t h e t h e n 24 the current fair market 2100023 value." a The former wife calculation of the notes equity a c c o u n t a n t ; she a r g u e s t h a t not comport w i t h the former husband's anticipated former costs 2004 calculation reverse the determined marital until not Van sale. comport 952 494 ( A l a . C i v . App. is plain 2001), quoting and written."'"). free On 5% with judgment from remand, Allen, that the Thus, we that i t extent i n the the cause to the t r i a l court. 391 812 ( A l a . C i v . App. So. 2d 1276, v . G.G., ("'"An a g r e e m e n t ambiguity the p e r annum f r o m agree the the p o r t i o n of the equity i n t u r n R.G. 2000)) that agreement. to that account the notes interest the husband's she n o t e s into We accepted c a l c u l a t i o n s do also 2009. So. 2d 384, A l l e n v. Van App. She 8 added a n d we r e m a n d Civ. former Specifically, the former husband's See M e y e r v . M e y e r , the court the accountant's December court's residence, (quoting the accountant trial by accountant d i d not take of does the t r i a l done the agreement. husband's February that trial must court 2006) 1277 ( A l a . 771 S o . 2 d 490, t h a t by i t s terms be enforced as i s i n s t r u c t e d to The former husband argues t h a t , because the m a r i t a l residence was n o t on t h e m a r k e t , t h i s p r o v i s i o n was not a p p l i c a b l e ; h o w e v e r , as t h e f o r m e r w i f e n o t e s , t h e a g r e e m e n t d o e s n o t r e q u i r e t h e m a r i t a l r e s i d e n c e t o be on t h e m a r k e t i n order to t r i g g e r the a p p l i c a t i o n of that p r o v i s i o n . 8 25 2100023 recalculate the accordance former with the agreement VI. The its Contempt contempt. by husband v i o l a t e d maintain she the they designated court issue of provision and stated the this the former issue. the the abandoned we determine from the evidence whether i n contempt as the cause to t h i s 26 of in former his life- proof that i t s judgment, advised to As comply the for contempt the the the he was in former trial as to court's court the former husband issue. wife suggest claim trial the with i n the r e c o r d to her the i t that moot b e c a u s e reverse and held exceeded the annually In trial. judgment, be was i s nothing Accordingly, remand her failure insurance of had to p a r t i e s had husband's time wife we in husband that beneficiaries beneficiaries. life the as as p o i n t s out, however, there that court former argues provide former at equity Husband the to that regarding compliance hold the opinion. that the t r i a l specifically children policy trial of the p r o v i s i o n i n the agreement r e q u i r i n g him insurance were this Former d e c l i n i n g to First, portion and former wife next argues discretion to husband's to should 2100023 The court former wife also i n contempt forviolating agreement by not t r e a t i n g a coequal that the t r i a l a previous marriage her ugly and by d e n y i n g access t o t h e c h i l d r e n when t h e y care. We specific the former however, that wife telephone the t r i a l d i d n o t make i s s u e s , and t h e former wife motion. A c c o r d i n g l y , we c a n n o t c o n s i d e r h e r a r g u m e n t s o n t h o s e issues. New Props., L.L.C. (Ala. 2004) makes no s p e c i f i c new t r i a l the arguments court husband's i n her postjudgment See those reasonable were i n t h e former f i n d i n g s o f f a c t on t h o s e not present from of the c h i l d r e n , by c a l l i n g to the parties' note, certain provisions her c h i l d names, did argues exceeded i t s d i s c r e t i o n by d e c l i n i n g t o h o l d t h e former husband as specifically ("[I]n evidence Stewart, a nonjury case 905 relating i n order properly 7 97 , 801-02 the t r i a l court a party m u s t move fora before the t r i a l court raise to the sufficiency to preserve So. 2d i n which f i n d i n g s of fact, or otherwise question v. that or weight question of the f o r appellate review."). The in former wife also contempt of the t r i a l that neither party argues that the former court's pendente l i t e consume alcohol 27 husband was order r e q u i r i n g i n the presence of the 2100023 children. to We n o t e , h o w e v e r , t h a t t h e f o r m e r w i f e hold Further, that her the former the t r i a l issue, Props., L.L.C., The contempt wife wife erred finally of to days issue. finding that on issue i n consider i t . New argues that the of the date to reimburse court proof to reimburse He a l s o notes orthodontic services, former wife must The f o r m e r before incurring those was that that discuss her 50% of the husband 28 expense within as r e q u i r e d provided f o r orthodontic and t h a t that, had f a i l e d some o f t h e e x p e n s e s t h e agreement charges, that the argues the former wife incurred, t h e need She her f o r h i s portion of the claimed the b i l l agreement. husband i n erred i n determining of 1 or 2 times, him with the former as r e q u i r e d i n t h e a g r e e m e n t . d i d n o t have the exception provide cannot to hold failure the c h i l d r e n ' s expenses. with we that a specific specifically by f a i l i n g that the t r i a l husband on d i d not argue Thus, c h i l d r e n ' s m e d i c a l expenses former contempt 905 S o . 2 d a t 8 0 1 - 0 2 . f o rh i s alleged a l s o argues in d i d n o t make motion. former court court and t h e former postjudgment trial husband d i d n o t move the former 30 by t h e were f o r that the services w i f e had 2100023 not discussed undisputed expense that and t h a t of that The former the for a visit incurred share the orthodontic children. to PriMed the former court found to maintain The the him wife trial submitted 30 days I t was 9 a medical after that court insurance he that her health had agreed policy, f o r the increase had f a i l e d t h e agreement indicated under h i s h e a l t h - i n s u r a n c e former him. husband had d e c l i n e d health evidence testified reimburse had within that l o s t h e r j o b and, t h e r e f o r e , husband wife with i t was t o pay h i s expense. trial wife former services f o r the parties' the former insurance. to cover the wife had The f o r m e r the c h i l d r e n t h a t t h e f o r m e r w i f e was t o i n premiums, to reimburse determined that required him. 1 0 and that the In the judgment, t h e amount t h e f o r m e r husband We note t h a t t h e f o r m e r w i f e t e s t i f i e d t h a t she had discussed the orthodontic s e r v i c e s w i t h the former husband when e a c h c h i l d h a d t o h a v e b r a c e s . She t e s t i f i e d t h a t , when t h e i r d a u g h t e r had t o have b r a c e s , t h e former husband s t a t e d t h a t he was p a y i n g t h e h e a l t h - i n s u r a n c e p r e m i u m s a n d t h a t he would not pay anything e l s e . She t e s t i f i e d t h a t , when t h e i r s o n h a d t o h a v e b r a c e s , t h e f o r m e r h u s b a n d s t a t e d t h a t he d i d n o t " g i v e a damn i f he h a d b r a c e s . " 9 The former w i f e d e n i e d t h a t she had a g r e e d t o pay t h e former husband f o r t h e premiums. The t r i a l c o u r t , h o w e v e r , c o u l d have b e l i e v e d the former husband's testimony. See Clemons, supra. 1 0 29 2100023 had paid the former medical we f o r the health-insurance husband bills. We owed can the the the husband expenses to that had The former wife discretion attorney her by trial been court fees and attorney the Attorney her The the e r r e d by by the amount children's d e c l i n i n g to wife the 50% order of the children. Fees the to Thus, d e c l i n i n g to former trial pay i n d e c l i n i n g to order fees. of i n c u r r e d by argues that ordering offset error in that reasoning. reimburse VII. pay share f o r m e r h u s b a n d i n c o n t e m p t and former medical his f i n d no cannot conclude that hold for premiums court the exceeded i t s former the husband's former husband agreement p r o v i d e d , to in pertinent part: " 1 9 . ENFORCEMENT: I f e i t h e r p a r t y v i o l a t e s any provision of this Agreement they shall, upon a judicial determination of such violation, be r e s p o n s i b l e of payment of a l l c o s t s , e x p e n s e s , and attorneys' fees i n c u r r e d by the other party in c o n n e c t i o n w i t h the enforcement hereof." "Attorney fees contract." 1989). court exceeded was recoverable Knox K e r s h a w , I n c . v. (Ala. wife are We have provided K e r s h a w , 552 previously i t s discretion i n contempt when determined i n determining for violating 30 various So. that that for 2d in 126, the the a 129 trial former p r o v i s i o n s of the 2100023 agreement. We have a l s o d e t e r m i n e d t h a t the t r i a l in determining that the i s s u e whether contempt regard with agreement relevant is to moot. The consideration attorney fees. former former We, therefore, husband's husband to remand, the t r i a l life-insurance violation that of p r o v i s i o n of the pay the court reverse agreement whether the trial fees former and i s to reconsider a award court's to pay to order declined wife's the is to i t ordered the former wife attorney erred the former husband i s i n i n the d e t e r m i n a t i o n judgment to the e x t e n t the the court the attorney fees. the i s s u e of On attorney fees. VIII. The exceeded Guardian former ad L i t e m wife and Parenting finally i t s discretion by argues ordering Coordinator that her the to fee because, necessitated parenting is says, ad the former 50% than litem, and b e c a u s e hers. which She husband's the former husband's points states, to the "[The former w i f e ] has put forth a attempt to t r y to work w i t h [ t h e former 31 report in pertinent court of the coordinator's t h e i n v o l v e m e n t o f t h e g u a r d i a n ad l i t e m coordinator greater guardian she trial pay g u a r d i a n ad l i t e m ' s f e e and 40% o f t h e p a r e n t i n g Fees conduct and the income of part: good faith husband] i n the 2100023 accommodating h i s v i s i t a t i o n w i t h t h e c h i l d r e n , and i n t r y i n g t o promote t h e i r r e l a t i o n s h i p w i t h him. However, I b e l i e v e t h a t i t i s h i g h l y u n l i k e l y t h a t any progress w i l l b e made u n l e s s and u n t i l [ t h e former h u s b a n d ] seeks t r e a t m e n t f o r h i s a l c o h o l and anger i s s u e s . " We note, however, appointment to there issue. more t h a n available than the was that the t r i a l on earns agreed issue substantially h a d more wife's income indicated. Accordingly, court exceeded of regarding of the former wife the Further, the presented husband the former i t s apportionment of the fees parenting coordinator. evidence income requested and t h e p a r t i e s the evidence that her stated wife settlement the former shows conclude a limited the former wife, habits cannot ad l i t e m , reached Although spending former of the parenting the p a r t i e s visitation, that the of the guardian the appointment because in that we i t s discretion f o r the guardian ad l i t e m and coordinator. Conclusion Based judgment the marital the foregoing, to the extent visitation; pay on held former residence that the former husband we reverse i t modified the t r i a l the former wife i n contempt his portion of the court's husband's for failing equity to i n the a n d f o r b o r r o w i n g a d d i t i o n a l f u n d s when s h e 32 2100023 refinanced determined equity the first mortgage t h e amount on of the former the marital husband's i n the marital residence; held claim f o r contempt failure to concerning regarding comply life with the former the insurance that provision was moot; portion of the the former husband's of the and parties' entitlement to attorney fees. judgment i s affirmed i n a l lother f o r the entry of a judgment wife's alleged agreement determined respects. cause residence; The trial We i n accordance the court's remand this with this opinion. The fee former wife's request on a p p e a l IN PART; o f an attorney i s denied. AFFIRMED f o r t h e award REVERSED I N P A R T ; AND REMANDED WITH INSTRUCTIONS. Thompson, Bryan, part, P . J . ,and Pittman J . , concurs and d i s s e n t s i n part, i n part, with 33 a n d Thomas, concurs writing. J J . , concur. i n the result in 2100023 BRYAN, J u d g e , c o n c u r r i n g i n p a r t , p a r t , and d i s s e n t i n g i n p a r t . I the concur i n each part judgment of the t r i a l concurring of the main court, i n the r e s u l t i n opinion specifically the main o p i n i o n r e g a r d i n g : the t r i a l that those parts court's failure a v i s i t a t i o n judgment t h a t a c c u r a t e l y r e f l e c t e d the of the p a r t i e s ; the t r i a l Freeman ("the Dewayne equity finding former w i f e " ) Freeman in the that court's ("the former the finding willfully former former wife failed residence; willfully to to pay trial violated enter Perdue Charles portion the of mortgage on the marital residence; the the divorce trial residence; former wife's contempt life-insurance fees to the discretion discovery income, I policy former Although by the I trial court's determination claim relating to the former was moot; and award of former that the husband's attorney's husband. believe failing that the to permit related to determining agree the the court's e r r o r i n c a l c u l a t i n g the former husband's e q u i t y i n the marital the court's j u d g m e n t b y b o r r o w i n g a d d i t i o n a l f u n d s when she r e f i n a n c e d first of agreement that Cheryl husband") h i s marital reverses that there is 34 trial the court former exceeded wife i t s to request the former husband's monthly undisputed of evidence the 2100023 former husband's a b i l i t y and, thus, instance, review that that was the t r i a l harmless. not properly Regarding the parts retroactive the medical result error, in this agree raised the that for this main of the court appeal review. concerning child-support children, cannot on court's opinion of the modified expenses this children particular by the former w i f e preserved of application court's I also any o f the i s s u e s were and t o pay f o r t h e needs of the I concur the award i n the only. However, conclusions I respectfully set forth dissent i n the main 35 from opinion. the remaining

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