REL:
07/29/2011
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 Reporter o f Decisions,
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
SPECIAL TERM, 2011
2100358
L o r i Hood
v.
S c o t t Hood
Appeal from M o b i l e C i r c u i t Court
(DR-00-500679.03)
THOMPSON,
Presiding
L o r i Hood
Mobile
For
Circuit
thereasons
and r e v e r s e
Judge.
("the mother") a p p e a l s f r o m t h e judgment o f t h e
Court
i n favor
of Scott
Hood
("the f a t h e r " ) .
s t a t e d h e r e i n , we a f f i r m t h e j u d g m e n t
i ti n part.
i n part
2100358
This
to
their
recounted
i s the second appeal i n v o l v i n g these p a r t i e s r e l a t e d
2001
divorce.
In
the
the f o l l o w i n g procedural
first
appeal,
this
court
history:
"[The f a t h e r ] and [ t h e m o t h e r ] were d i v o r c e d b y
a 2001 judgment of the t r i a l c o u r t t h a t
incorporated
an a g r e e m e n t r e a c h e d b y t h e p a r t i e s .
The
divorce
j u d g m e n t a w a r d e d t h e m o t h e r c u s t o d y o f t h e two m i n o r
c h i l d r e n born of the p a r t i e s ' m a r r i a g e , awarded the
father a standard
schedule of v i s i t a t i o n , ordered
the f a t h e r t o p a y $ 4 1 9 p e r month i n c h i l d s u p p o r t ,
and r e q u i r e d t h e f a t h e r t o p r o v i d e h e a l t h
insurance
for
t h e b e n e f i t o f t h e p a r t i e s ' c h i l d r e n and t o
reimburse
the mother
f o r any noncovered m e d i c a l
expenses.
I n a d d i t i o n , the d i v o r c e judgment s t a t e d
that the p a r t i e s waived a l l claims to alimony, but
paragraph f i v e of the judgment r e q u i r e d the f a t h e r
to pay t h e mother $296 p e r month from income from a
trust
fund
established
f o r the b e n e f i t
of the
f a t h e r ; p a r a g r a p h f i v e of the d i v o r c e judgment a l s o
s p e c i f i e d t h a t t h e a m o u n t t o be p a i d t o t h e m o t h e r
pursuant to that paragraph would increase
i f the
monthly b e n e f i t s paid to the father
increased.
2
"In A p r i l 2007, the f a t h e r f i l e d a p e t i t i o n f o r
a rule n i s i , seeking
t o have t h e mother h e l d i n
contempt f o r a l l e g e d l y denying him v i s i t a t i o n
with
t h e p a r t i e s ' two c h i l d r e n .
Also i n A p r i l 2007, the
father f i l e d a complaint seeking to modify custody
and t o t e r m i n a t e
h i s o b l i g a t i o n to pay the mother
amounts p u r s u a n t t o p a r a g r a p h f i v e o f t h e d i v o r c e
judgment.
The m o t h e r r e s p o n d e d t o t h e
father's
p e t i t i o n f o r a r u l e n i s i b y f i l i n g an a n s w e r d e n y i n g
the m a t e r i a l a l l e g a t i o n s i n t h a t p e t i t i o n .
She a l s o
c o u n t e r c l a i m e d , s e e k i n g an i n c r e a s e i n t h e f a t h e r ' s
child-support
o b l i g a t i o n and s e e k i n g
t o have the
father
held
i n contempt f o r h i s f a i l u r e
to pay
certain
amounts
as r e q u i r e d b y t h e 2 0 0 1
divorce
judgment.
2
2100358
"The t r i a l c o u r t c o n d u c t e d an o r e t e n u s h e a r i n g .
D u r i n g t h a t h e a r i n g , the mother r e q u e s t e d that the
t r i a l c o u r t i n c r e a s e what she c h a r a c t e r i z e d as t h e
f a t h e r ' s ' a l i m o n y ' o b l i g a t i o n imposed by paragraph
f i v e of the 2001 d i v o r c e judgment.
The f a t h e r d i d
not
object
to that
request,
and, therefore,
we
c o n c l u d e t h a t t h a t c l a i m was t r i e d b y t h e i m p l i e d
consent of the p a r t i e s .
See R u l e 1 5 ( b ) , A l a . R.
C i v . P.
"On J u n e 1 1 , 2 0 0 8 , t h e t r i a l c o u r t e n t e r e d
an
order i n which i t denied the mother's contempt c l a i m
a n d h e r c l a i m s e e k i n g an i n c r e a s e i n c h i l d s u p p o r t ,
denied the father's claim seeking a m o d i f i c a t i o n of
c u s t o d y , and g r a n t e d t h e f a t h e r ' s c l a i m s e e k i n g t o
modify v i s i t a t i o n .
" Specifically,
paragraph
judgment s t a t e s :
2
five
of
the
divorce
"'The p a r t i e s a g r e e t h a t t h e [ f a t h e r ]
s h a l l p a y t o t h e [ m o t h e r ] t h e sum o f $ 2 9 6
per
month f r o m t h e income o f t h e t r u s t
which i s i d e n t i f i e d
a s "The H e l e n
Trane
Hood T r u s t
f o r the Benefit
of Benjamin
S c o t t Hood," w i t h s a i d m o n t h l y payment t o
increase
b y t h e same p e r c e n t a g e
as t h e
increase i n the monthly b e n e f i t s
increase
which are p a i d to the [ f a t h e r ] from s a i d
Trust.'"
Hood v . Hood,
(footnote
1
23
and
order,
1160,
1161-62
( A l a . C i v . App.
2009)
omitted).
Subsequent
2008,
So. 3d
to the t r i a l
the t r i a l
the mother appealed.
court
court's
resolved
entry
of
i t s June
the remaining
The m o t h e r c o n t e n d e d t h a t
3
11,
issues,
the
trial
2100358
court
had
support
erred
court's
32,
hold
father's
A l a . R.
Jud.
the
father
five
received
from
contention,
due
the
this
court
of paragraph
mother
to
we
received
that
he
to
been
five."
that,
from the t r u s t
from
which
"when, a n d b y how
have
court
to
pursuant
to
1165.
mother
The
failing
increased
Id.
at
to
comply
not
to
Addressing
although
the
complied with
increase
in
trial
pursuant
4
to
Thus,
the
this
he
that
father
had
that
part
the payment t o
the
amount
f u n d , " the mother had
the
with
increase
court
could
much, t h e p a y m e n t s t o t h e
1166.
also
as t h e i n c o m e
increased.
the
trial
c o u r t had e r r e d i n r e f u s i n g
for
had
the
f o r the t r i a l
t h a t r e q u i r e d him t o i n c r e a s e
evidence
determined
paragraph
wrote
to
to modify
reversed
that paragraph
fund
in proportion
present
should
five
unable
judgment by f a i l i n g
under
trust
"openly acknowledged
f u n d s he
Id. at
contempt
of the d i v o r c e
p a y m e n t s h e was
was
child-
obligation
child-support
Admin.
in
father's
court
obligation,
on a p p e a l t h a t t h e t r i a l
paragraph
the
this
the
c o u r t had d e t e r m i n e d whether
child-support
the
contended
the
modify
judgment and remanded t h e c a u s e
calculate
to
to
Because
the t r i a l
father's
Rule
refusing
obligation.
a s c e r t a i n how
the
in
failed
have
mother
requirements
court
of
of
concluded
2100358
that
to
the
trial
hold
present
was
in
contempt.
On
reflects
trial
f o r the
taken
order
not
appeal
remand, the
amount
had
father
the
court
from
divorce
that
that
27,
remand,
March
child-support
the
father
He
the
filed
alleged
sought p r i m a r y p h y s i c a l
also
sought the
five
of the
w h i c h he
his
begun
in
the
following
No
new
appeal
as
cohabiting
had
entered
the
modify
the
to
been
an
award
material
he
p a r t i e s ' daughter
and
the
obligation.
The
paragraph
the
mother $296 per
of
alimony,
someone
alleging
that
opposite
sex.
The
f a t h e r l a t e r amended h i s p e t i t i o n by w i t h d r a w i n g h i s
claim
for
modification
and
r e q u e s t f o r an o f f s e t a g a i n s t
any
had
a c c r u e d b a s e d on
had
resided
with
the
child
5
support
child-support
extended period
him.
the
month,
had
custody
of
father
she
of
with
a
t h a t a l l e g e d change,
of h i s o b l i g a t i o n under
judgment to pay
characterized
court
petition
b a s e d on
child-support
termination
divorce
trial
there
c u s t o d y of
of
2010,
obligation.
a
that
and,
modification
4,
record
order.
change i n c i r c u m s t a n c e s ,
a
The
failing
a judgment e s t a b l i s h i n g a
2009, b e f o r e
judgment.
Id.
on,
entered
father's
October
on
court
abused i t s d i s c r e t i o n i n
but
adding
arrearage
a
that
the p a r t i e s ' daughter
2100358
The
in
mother f i l e d
which
certain
she
alleged
money
judgment
a motion to enforce
required
paragraph
divorce
for
t o make p a y m e n t s t o h e r
divorce
In
addition
motions,
previous
court,
month
and
she
c o u r t had
in
child
to pay
the
that
that
trial
he
court.
contempt
and
to
five
to
realleging
hold
the
father
in
from
her
claims
this
ordered
the
father
that
had
as
pay
$616
per
to
June
2008
an
father
attorney
to pay
a child-support
She
sought
awarding
her
the
an
an
attorney
fee.
the
fee
finding
fee.
The
ordered
arrearage
attorney
order
6
4,
to
failed
to pay
March
retroactively
effective
mother $1,000
on
the
a judgment, f o l l o w i n g remand from
support
that,
amended m o t i o n
the
i t had
failed
and
an
2010,
the
had
pursuant to paragraph
judgment
thus,
s u p p o r t and,
f a t h e r i n contempt
the mother f i l e d
asserted
entered
which
as
asserted
and
2010,
the
contempt.
motion,
judgment.
S e p t e m b e r 17,
enforce
trial
a motion to h o l d the
her
the
her
filed
divorce
filed
of
pay
mother l a t e r
to
she
five
to
The
On
time
failed
making payments to her under t h a t p a r a g r a p h .
the
the
had
discontinued
of
at
by
father
judgment
had
failure
that,
the
divorce
he
his
and
that
the
had
ordered
the
mother
child
accrued
by
father
the
in
2100358
On
October
18,
2010,
at which i t r e c e i v e d
father
that
did
she
not
appear
presently
boyfriend
and
that
beginning
after
at which
time
she
of
the
returns
the
the
testified
a
that
"property
The
she
of
fund
basis
that
The
had
had
that
the
divorce
claimed
as
p a r t i e s had
testified
boyfriend
she
had
for
a
account
October
2009,
those payments.
the
her
received
trust
until
The
$296 m o n t h l y payment
income
had
her
father's
terminated
she
mother
The
p a r t i e s ' c h i l d r e n and
stated
from
trial
documentary evidence.
the
fund
stated
she
had
benefits
i n excess
from
She
a bench
on
received
considered
her
income-tax
i t , although
the
she
m o n t h l y payment
settlement."
mother
a l l the
held
been l i v i n g w i t h
years
the
court
trial.
trust
documentation from the
f u n d and
had
father
the
the
p a r t i e s ' 2001
father's
during
for
$296
mother a d m i t t e d t h a t
from
t e n u s and
years.
payment
trial
resided with
a p p r o x i m a t e l y two
monthly
ore
the
of
the
mother t e s t i f i e d
the
trust
that
that
her
attorney
company t h a t h a n d l e d the
had
the
her
father
$ 7 0 0 he
fund
the
attorney
at
had
had
the
father's
7
prepare
received
had
obtained
father's
an
itemization
from
b e e n r e c e i v i n g on
time
trust
of
the
the
a
trust
monthly
divorce.
f u n d had
trust
been
The
paying
2100358
a p o r t i o n of h i s c h i l d support
as other b e n e f i t s f o r the
purchase
of
a
house
according
to
her
entitled
to
fund,
w e l l as
as
The
at
mother
attorney
had
summaries
trust
fund
the
trust
items
as
travel
of
2007 t h e
trust
the
father
a house.
loans,
on
in
as
that
basis,
to
or
expenses,
The
stated
was
payments
amount o f
summaries
made
She
c a l c u l a t i o n s , she
relative
a monthly
had
purchase
father.
of
to
the
showed what e a c h p a r t y
fund
such
the
$53,970.47
submitted
Those
on
for
interest
obtained
h i s student
well
f a t h e r , i n c l u d i n g $85,000 toward
attorney's
least
and
the
that,
presently
from
the
trust
$11,986.46.
documentation
father's
trust
her
fund.
had
received
from
as
one-time
payments
as
well
on
behalf
of
the
estate-planning
summaries
the
the
father
work,
indicated that
for
and
in
the
March
f u n d b e g a n m a k i n g m o n t h l y p a y m e n t s on b e h a l f
for
his
student
loans.
1
Those
summaries
of
were
The
mother
also
submitted
two
compact
discs
that,
a c c o r d i n g t o her, c o n t a i n e l e c t r o n i c c o p i e s of the documents
her
a t t o r n e y had
obtained
from the
company h a n d l i n g
the
father's
trust
fund.
However, e x c e p t
f o r an e l e c t r o n i c
v e r s i o n of the r e c o r d of appeal
i n the p r i o r appeal
and
c e r t a i n o t h e r f i l e s r e l a t e d t o an e n t i r e l y d i f f e r e n t c a s e , t h e
f i l e s on t h o s e d i s c s a r e p r o t e c t e d b y p a s s w o r d s , a n d t h e r e i s
no i n d i c a t i o n t h a t t h e m o t h e r p r o v i d e d t h e t r i a l c o u r t w i t h
t h o s e p a s s w o r d s n e c e s s a r y t o a c c e s s t h e f i l e s on t h o s e d i s c s .
Although
t h e d i s c s a r e p a r t o f t h e r e c o r d on a p p e a l ,
this
c o u r t was n o t p r o v i d e d w i t h t h e p a s s w o r d s n e c e s s a r y t o a c c e s s
1
8
2100358
introduced
The
support
into evidence
mother
based
without
testified
on
objection.
that
that
the fact
the father
the t r i a l
owed
her
court's
child
previous
m o d i f i c a t i o n o f t h e f a t h e r ' s c h i l d - s u p p o r t o b l i g a t i o n had been
retroactive
seeking
t o J u n e o f 2008.
an a t t o r n e y ' s
On N o v e m b e r
terminating
the
the
obligation
was
the father's
of h i s t r u s t .
entered
t o pay t h e mother
The
trial
court
because t h e mother
her boyfriend.
The t r i a l
of the p a r t i e s ' daughter
the
father's child-support
the
p a r t i e s ' remaining
single
court
to cohabiting
a judgment
claims.
court
The t r i a l
The t r i a l
with
court
her boyfriend;
made no f i n d i n g s o f f a c t b e a r i n g
of
a portion of
that
found that i t
to the father
obligation.
five
had admitted
f i n d i n g o f f a c t i n t h e judgment -- t h a t
admitted
s h e was
construed
as p e r i o d i c a l i m o n y and s p e c i f i c a l l y
cohabiting with
that
o b l i g a t i o n under paragraph
judgment
due t o be t e r m i n a t e d
custody
testified
f e e o f $10,000.
9, 2 0 1 0 , t h e t r i a l
p a r t i e s ' divorce
income
She a l s o
to
also
awarded
and
modified
court
made
denied
only
a
t h e mother had
the t r i a l
court
on t h e m o t h e r ' s a l l e g a t i o n s
t h e i n f o r m a t i o n on them r e l a t e d t o t h e f a t h e r ' s t r u s t
fund,
and, as a r e s u l t , t h i s c o u r t h a s b e e n u n a b l e t o c o n s i d e r a n y
s u c h i n f o r m a t i o n c o n t a i n e d on t h o s e d i s c s .
9
2100358
that
the
father
obligation
as
the
in
c u s t o d y of
time
court
mother
judgment
of
the
the
erred
judgment
arrears
failed
a motion
and
that
request.
She
that
the
an
trial
that
trial
provision.
and
custody
of
set aside
the
child-support
of
the
On
The
of
should
court
that
the
father's
trust
the
award
constituted
10
forward
the
trial
of
the
the
and
court
the
father
in
pursuant
to
mother's
award
mother
the
trial
of
of
the
motion
modifying
the
d e n i e d the
The
court
to
the
modifying
in
divorce
alimony
w e r e due
a portion
an
the
of i t s judgment
trial
of
for
have h e l d
the mother contends t h a t
concluding
request
put
five
granted
p a r t i e s ' daughter
in
was
amounts t h a t
The
fee
pending at
longer
periodic
mother's postjudgment motion.
appeal,
the
father's
no
those portions
obligation.
her
amend, o r v a c a t e
the
paragraph
court
t o pay
to
evidence
award
child-support
attorney
also argued that
interpreting
providing
an
alter,
that
no
his
ordered.
to
argued
to
t o pay
previously
contempt f o r f a i l i n g
in part
as
p a r t i e s ' d a u g h t e r was
in
m o t h e r and
had
she
trial
as
had
filed
which
support of t h a t
had
in
o r t h a t he
trial
The
was
father's
balance
appeals.
court
erred
income
from
periodic
alimony
2100358
rather
that
than
an
award
paragraph
four
of
of
alimony
the
in
gross.
divorce
judgment
"[e]ach p a r t y waives a l l claims to alimony,
f u t u r e , " and
of
funds
t h a t she
in
paragraph
settlement."
court's
funds
judgment
In
Thus,
judgment
to
the
should
Daniel
2002),
this
alimony
and
testified
five
she
be
v.
court
alimony
under
the
discussed
in
We
841
the
out
provides
hearing
t h a t the
been
portion
father's
paragraph
reversed.
Daniel,
that
points
that
past, present,
"always
argues,
terminating
mother
at the
had
She
2
a
of
of
award
property
the
obligation
five
and
the
trial
to
pay
divorce
disagree.
So.
2d
124 6
(Ala.
d i f f e r e n c e between
Civ.
App.
periodic
gross:
"Our supreme c o u r t has e x p l a i n e d t h e d i f f e r e n c e
between
p e r i o d i c alimony
and
alimony
in
gross.
H a g e r v . H a g e r , 293 A l a . 47, 299 So. 2d 743
(1974).
Alimony i n gross i s c o n s i d e r e d 'compensation f o r the
[ r e c i p i e n t spouse's] inchoate m a r i t a l rights
[and]
... may a l s o r e p r e s e n t a d i v i s i o n o f t h e f r u i t s o f
the m a r r i a g e where l i q u i d a t i o n of a c o u p l e ' s j o i n t l y
owned a s s e t s i s n o t p r a c t i c a b l e . ' H a g e r v. H a g e r ,
293
Ala.
at
54,
299
So.
2d
at
749.
An
A l t h o u g h the mother does not use the p h r a s e " a l i m o n y i n
g r o s s " i n her p r i n c i p a l a p p e l l a t e b r i e f , i t i s c l e a r from her
r e p l y b r i e f t h a t she i s c o n t e n d i n g t h a t t h e a w a r d i n p a r a g r a p h
f i v e c o n s t i t u t e s alimony i n gross, which i s a form of p r o p e r t y
settlement.
See L a m b e r t v . L a m b e r t , 22 So. 3 d 4 8 0 , 485 ( A l a .
C i v . App.
2008) ( " ' [ A ] l i m o n y
i n gross i s a form of p r o p e r t y
s e t t l e m e n t . ' " ( q u o t i n g T e n E y c k v . T e n E y c k , 885 So. 2 d 1 4 6 ,
152
( A l a . C i v . App.
2003))).
2
11
2100358
alimony-in-gross
award
'must
satisfy
two
r e q u i r e m e n t s , (1) t h e t i m e o f p a y m e n t a n d t h e a m o u n t
m u s t be c e r t a i n , a n d (2) t h e r i g h t t o a l i m o n y m u s t
be v e s t e d . ' C h e e k v . C h e e k , 500 So. 2d 17, 18 ( A l a .
C i v . App. 1 9 8 6 ) .
I t m u s t a l s o be p a y a b l e o u t o f t h e
p r e s e n t e s t a t e o f t h e p a y i n g s p o u s e as t h a t e s t a t e
e x i s t s at the time of the d i v o r c e .
Hager v. H a g e r ,
293 A l a . a t 5 5 , 299 So. 2 d a t 7 5 0 .
In other words,
alimony i n gross i s a form of p r o p e r t y s e t t l e m e n t .
H a g e r v . H a g e r , 293 A l a . a t 54, 299 So. 2d a t 7 4 9 .
An
alimony-in-gross
award
is
generally
not
modifiable.
Id.
" P e r i o d i c a l i m o n y , on t h e o t h e r h a n d , ' i s an
a l l o w a n c e f o r the f u t u r e support of the [ r e c i p i e n t
spouse] payable from the c u r r e n t e a r n i n g s of the
[paying spouse].'
H a g e r v . H a g e r , 293 A l a . a t 5 5 ,
299 So. 2 d a t 7 5 0 .
I t s p u r p o s e ... ' i s t o s u p p o r t
the
former
dependent
spouse
and
to enable
that
spouse,
to the e x t e n t p o s s i b l e ,
to m a i n t a i n the
status
that
the p a r t i e s
had
enjoyed
during
the
marriage, u n t i l
the spouse
is self-supporting
or
maintaining a status
similar
t o t h e one
enjoyed
d u r i n g the marriage.'
O ' N e a l v . O ' N e a l , 678 So. 2 d
1 6 1 , 165
( A l a . C i v . App.
1 996)
(emphasis
added).
P e r i o d i c a l i m o n y i s m o d i f i a b l e b a s e d upon changes i n
t h e p a r t i e s ' f i n a n c i a l c o n d i t i o n s o r n e e d s , s u c h as
an i n c r e a s e i n t h e n e e d o f t h e r e c i p i e n t s p o u s e , a
d e c r e a s e i n t h e i n c o m e o f t h e p a y i n g s p o u s e , o r an
i n c r e a s e i n the income of the r e c i p i e n t spouse.
See
T i b b e t t s v . T i b b e t t s , 762 So. 2d 8 5 6 , 858 ( A l a . C i v .
App.
1999).
The
paying
spouse's
duty
to
pay
p e r i o d i c a l i m o n y may be t e r m i n a t e d b y p e t i t i o n
and
p r o o f t h a t t h e r e c i p i e n t spouse has r e m a r r i e d or i s
c o h a b i t i n g w i t h a member o f t h e o p p o s i t e s e x .
Ala.
Code
841
1975,
at
§
So.
2d
As
30-2-55."
1250.
previously
noted,
paragraph
judgment p r o v i d e s :
12
five
of
the
divorce
2100358
"5.
The p a r t i e s a g r e e t h a t t h e [ f a t h e r ] s h a l l
p a y t o t h e [ m o t h e r ] t h e sum o f $ 2 9 6 p e r m o n t h f r o m
t h e i n c o m e o f t h e t r u s t w h i c h i s i d e n t i f i e d as
'The
H e l e n T r a n e Hood T r u s t f o r t h e B e n e f i t o f B e n j a m i n
S c o t t Hood,' w i t h s a i d m o n t h l y payment t o i n c r e a s e
by
the
same p e r c e n t a g e
as
the
increase
i n the
monthly
benefits
increase
which are p a i d
to the
[ f a t h e r ] from s a i d t r u s t . "
The
a m o u n t o f an
certain,
see
paragraph
award
Daniel,
i s not.
supra;
First,
amount o f t i m e d u r i n g
the
award
happening
was
determine
the
entitled.
See
So.
3d
former
___ ,
there
to
the
amount
wife's
benefits
cannot
division
of
marital
provision
event,
i . e . , an
Thus,
there
is
which
the
the
award
[Ms.
a
2011)
share
to
property,
of
the
alimony
both the time at which the former wife's
vest
and
the
total
amount
the
former
upon
increase
no
the
the
in
to
mother
was
1,
former
2011]
an
the
husband's
unmodifiable
i n gross,
award w i l l
wife
this
way
("Additionally,
constitute
or
in
be
Second,
increase
2081182, A p r i l
App.
deemed
to
to
limiting
future
of
be
made
automatic
(Ala. Civ.
award
award
an
Rose v. Rose,
___
i s no
father.
of
the
i s required
t h e a w a r d i s t o be p a i d .
to
uncertain
paid
i n gross
however,
which
subject
o f an
benefits
of alimony
will
because
completely
receive
are
indefinite.").
Furthermore,
the
parties
13
have
treated
the
award
as
2100358
constituting
alimony
in
periodic
gross.
modification
of
For
the
to the p r e v i o u s
alimony
example,
award,
the
present
has
for
in
r e t u r n s , w h i c h i s not
in
gross
periodic
also
but,
shows
former
that
the
husband's
benefits
Adkins
Adkins,
("The
payments
former wife
the
3d
case with
18,
their
23
income by
the
tax
3d
also
divided
the
14
i t s treatment
share
her
valid
as
tax
i f
marital
the
former
husband,
not
a tax
be
of
the
former
App.
f o r the
("The
record
property.");
(Ala. Civ.
B r u n n e r v.
as
filings-- a
income
payments
as
alimony
("The
in
she
income-tax
taxable
2008)
or
her
to
payment
as
alimony.");
former wife
on
at
1077
designated
App.
monthly
a
led
action leading
the
3d
be
1071,
that
l i s t e d her
has
not
action
with
income
deductible
Civ.
that
as
been
So.
periodic
(Ala.
intent
61
wife
sought
i t s t r e a t m e n t as
So.
would
had
are
and
former
have
t e s t i f i e d that
income
Rose,
that
of
consistent
benefits
characterization
i n the
mother
as
nonmodifiable
parties
receipt
five
is
See
husband's
v.
her
the
consistent with
instead,
alimony.
both
as
f a t h e r i n the
Moreover,
paragraph
than
mother
the
consistently treated
called
the
a p p e a l and
appeal.
rather
Ormsby,
parties
treated
d e d u c t i o n by
2010)
to
as
10
the
is
So.
also
stated
as
taxable
the
former
2100358
husband.
The
provision
l e n d s s u p p o r t t o t h e former w i f e ' s argument t h a t the
alimony
a w a r d was
The
"claims
former
fact
husband
admits
i n t e n d e d t o be
that
the
to alimony,
parties
purported
past, present
of the d i v o r c e judgment
paragraph
five
The
characterization
alimony
from
App.
i n gross
an
1983).
In the present
does
in a
rather
case,
of the award
us
after
that
award
alimony.
d i v o r c e judgment
i s properly
than
from
have
alimony
intent,
as
determined
i t s form
or
(Ala. Civ.
d i s c u s s e d , the
f i v e c o m p o r t s more
as p e r i o d i c
their
p r o v i d e d f o r an
a s we
a l i m o n y i n g r o s s , as d o e s t h e p a r t i e s '
treatment
this
separate
not persuade
in a
alimony
of the award i n p a r a g r a p h
i t s characterization
their
future,"
waive
an a w a r d o f p e r i o d i c
award
of the award
to
See K e n c h e l v . K e n c h e l , 440 S o . 2 d 5 6 7 , 569
substance
with
of
than
or p e r i o d i c
the substance
label.
and
of the d i v o r c e judgment
i n gross rather
that
'in gross.'").
paragraph
of alimony
in his brief
rather
readily
than
as g l e a n e d
as
from
the e n t r y of the d i v o r c e
judgment.
Because
for
an
award
paragraph
of
five
periodic
a l i m o n y i n g r o s s , we
of the d i v o r c e judgment
alimony
rather
conclude that the t r i a l
15
than
an
provided
award
of
court d i d not e r r
2100358
in
terminating
Section
the
father's
30-2-55, A l a .
Code
obligation
1975,
under
provides,
that
paragraph.
in relevant
part:
"Any
decree of d i v o r c e p r o v i d i n g f o r p e r i o d i c
p a y m e n t s o f a l i m o n y s h a l l be m o d i f i e d b y t h e
court
t o p r o v i d e f o r the t e r m i n a t i o n of such a l i m o n y upon
p e t i t i o n o f a p a r t y t o t h e d e c r e e and p r o o f t h a t t h e
s p o u s e r e c e i v i n g s u c h a l i m o n y has r e m a r r i e d or t h a t
such spouse i s l i v i n g openly or c o h a b i t i n g w i t h a
member o f t h e o p p o s i t e
sex."
The
of
mother admitted
the
trial
opposite
t h a t she
sex
since
court properly
had
at
been c o h a b i t i n g w i t h
least
terminated
November 2009.
the
father's
a person
Thus,
the
periodic-alimony
obligation.
The
mother next
discretion
says,
the
in
denying
t h e e v i d e n c e was
her
same
payments
paragraph
the
motion
undisputed
terms of paragraph f i v e
to increase
the
contends that
payments to the
the
to
to
certain
due
before
Discussing
for
contempt
t h a t the
trust
fund
alimony
N o v e m b e r 2 0 0 9 , we
contempt,
court
abused i t s
because,
f a t h e r had
mother r e q u i r e d
that
As
trial
of t h e d i v o r c e j u d g m e n t by
proportion
him.
the
this
court
has
had
violated
failing
thereunder
increased
payments
under
agree.
written:
"'"Civil
contempt" i s d e f i n e d
as
a
" w i l l f u l , c o n t i n u i n g f a i l u r e or r e f u s a l of
any p e r s o n t o c o m p l y w i t h a c o u r t ' s l a w f u l
w r i t , subpoena, process,
order, rule,
or
16
she
in
its
that
2100358
command t h a t b y i t s n a t u r e i s s t i l l c a p a b l e
of
being
complied
with."
Rule
70A(a)(2)(D),
Ala.
R.
Civ.
P.
The
determination
o f whether
a party
is in
contempt i s w i t h i n the sound d i s c r e t i o n o f
the
trial
court,
and t h a t
determination
w i l l n o t be r e v e r s e d a b s e n t a s h o w i n g t h a t
the
court
exceeded
the
limits
of i t s
discretion.
S t a c k v . S t a c k , 646 So. 2 d 51
( A l a . C i v . App.
1994).'
"'Routzong v . B a k e r , 20 So. 3d 8 02 , 8 1 0 ( A l a . C i v .
App.
2009).
'"The
failure
to perform
an
act
r e q u i r e d b y t h e c o u r t f o r t h e b e n e f i t o f an o p p o s i n g
p a r t y c o n s t i t u t e s c i v i l contempt."
C a r t e r v. S t a t e
e x r e l . B u l l o c k C o u n t y , 393 So. 2 d 1 3 6 8 , 1370 ( A l a .
1981).'
J . K . L . B . F a r m s , L L C v . P h i l l i p s , 975 So. 2 d
1001,
1012
( A l a . C i v . App.
2007).
Furthermore,
' " [ t ] h e purpose of a c i v i l contempt p r o c e e d i n g i s to
e f f e c t u a t e c o m p l i a n c e w i t h c o u r t o r d e r s and n o t t o
p u n i s h the contemnor."
W a t t s v . W a t t s , 706 So. 2 d
7 4 9 , 751 ( A l a . C i v . A p p . 1 9 9 7 ) . '
H a l l v . H a l l , 892
So. 2 d 9 5 8 , 962 ( A l a . C i v . A p p .
2004)."
Reed v.
In
Dyas,
28
the p r i o r
So.
3d
appeal,
6,
8
( A l a . C i v . App.
this
court
2009).
wrote:
"In t h i s case, the f a t h e r openly
acknowledged
t h a t he h a d n o t c o m p l i e d w i t h t h a t p a r t o f p a r a g r a p h
f i v e t h a t r e q u i r e d him to i n c r e a s e the payment to
the mother i n p r o p o r t i o n
to the i n c r e a s e
i n the
a m o u n t o f f u n d s he r e c e i v e d f r o m t h e t r u s t
fund.
The f a t h e r a d m i t t e d t h a t t h e f u n d s he r e c e i v e d f r o m
the t r u s t f u n d had i n c r e a s e d over the y e a r s s i n c e
the
divorce
and
that
he
had
not
increased
the
p r o p o r t i o n a t e p a y m e n t t o t h e m o t h e r as r e q u i r e d by
paragraph f i v e of the d i v o r c e judgment.
The f a t h e r
d o e s n o t c o n t e n d t h a t he was
u n a b l e to pay
the
a d d i t i o n a l amount.
R a t h e r , he c o n t e n d s t h a t
the
a m o u n t s p a i d b y h i s f a m i l y o r t h e t r u s t f u n d on h i s
b e h a l f e x c e e d t h e a m o u n t he was
r e q u i r e d to have
17
2100358
paid
under paragraph
five.
"However, a l t h o u g h i t i s c l e a r t h a t t h e f a t h e r
did not comply w i t h the p r o v i s i o n s of paragraph f i v e
of t h e d i v o r c e judgment, t h e r e c o r d does n o t c o n t a i n
any e v i d e n c e p r e s e n t e d t o t h e t r i a l c o u r t
regarding
when t h e a m o u n t s p a i d t o t h e f a t h e r b y t h e t r u s t
fund increased
o r b y how much t h o s e p a y m e n t s h a d
increased.
T h u s , t h e r e was no way f o r t h e t r i a l
c o u r t t o d e t e r m i n e , b a s e d on t h e e v i d e n c e p r e s e n t e d
t o i t , w h e n , a n d b y how m u c h , t h e p a y m e n t s t o t h e
mother s h o u l d have been i n c r e a s e d p u r s u a n t t o t h e
requirements of paragraph f i v e .
Given the lack of
evidence i n the record p e r t a i n i n g to the s p e c i f i c
f a c t s o f t h i s i s s u e , we c a n n o t s a y t h a t t h e t r i a l
court exceeded i t s d i s c r e t i o n i n f a i l i n g to f i n d the
f a t h e r i n contempt f o r h i s f a i l u r e t o comply w i t h
the
terms
of
paragraph
five
of
the
divorce
judgment."
Hood,
23
So.
3d
at
1166.
The
mother
has
made
the
same
a r g u m e n t i n t h e p r e s e n t a c t i o n as she d i d i n t h e p r i o r a c t i o n ,
but,
unlike
has
provided
e v i d e n c e a s t o p a y m e n t s made t o h e r a n d t o t h e f a t h e r
from the
father's
has
to
trust
provided
extent
i n the p r i o r
fund.
a basis
to which
her pursuant
action,
Therefore,
on w h i c h
the father
i n this
the courts
should
to paragraph
the mother
five
action,
may
the mother
determine
have i n c r e a s e d
of the divorce
the
h i s payments
judgment.
3
We n o t e t h a t t h e f a t h e r h a s n o t a s s e r t e d t h e d o c t r i n e o f
r e s j u d i c a t a as a b a r t o t h e mother's contempt a c t i o n a g a i n s t
h i m , d e s p i t e t h e f a c t t h a t h e r a c t i o n r a i s e s t h e same i s s u e s
as h e r p r i o r c o n t e m p t p e t i t i o n t h a t was l i t i g a t e d t o a f i n a l
judgment.
"Res j u d i c a t a i s an a f f i r m a t i v e d e f e n s e a n d i f i t
i s n o t r a i s e d i n t h e t r i a l c o u r t , i t i s deemed t o have been
3
18
2100358
It
i s undisputed
father's
the
trust
mother
additional
father's
for
by
him
that
that,
f u n d was
monthly
beginning
time,
the
and
that
the
father.
Thus,
benefits
paid
5
making
a
i t appears
to
this
student-loan
i n March
or
on
However,
time
action
fund
payment
2007.
divorce,
The
were
of
used
monthly
by
of
make
demonstrates
the
payment
March
i t i s undisputed
that
the
approximately
to
the
the
evidence
to
fund were b e i n g
obligation
behalf
the
demonstrates
I t also
trust
that,
of
$700 m o n t h l y .
trust
child-support
i t was
exceed $700.
from
in
funds from the
father's
the
p a y i n g him
presented
funds
at
of
of
$200
2007,
the
that
that,
used to
mother
father
$187
had
the
pay
$525
to
4
the
monthly
begun
father
waived."
I m p e r i a l C r o w n M a r k e t i n g C o r p . v . W r i g h t , 560
1025,
1027
(Ala. 1989).
So.
to
did
2d
T h i s payment appears t o r e p r e s e n t
an amount o f
child
s u p p o r t t h a t the f a t h e r had v o l u n t a r i l y i n c r e a s e d from what
had been o r d e r e d i n the d i v o r c e judgment.
4
In
his appellate brief,
the
father argues that
the
monthly benefits
he
received
from the
trust
fund
never
e x c e e d e d $ 7 0 0 , r e l y i n g on t e s t i m o n y f r o m t h e m o t h e r i n w h i c h
s h e a g r e e d w i t h t h e f a t h e r ' s a t t o r n e y on
cross-examination
t h a t t h e f a t h e r had n o t b e e n p a i d more t h a n $700 p e r month by
the t r u s t .
H o w e v e r , when t h e w h o l e c o n t e x t o f t h e m o t h e r ' s
testimony i s considered,
i t i s clear that, i n agreeing
with
t h e f a t h e r ' s a t t o r n e y , s h e was n o t c o n s i d e r i n g t h e i t e m s , s u c h
as t h e f a t h e r ' s c h i l d - s u p p o r t o b l i g a t i o n , t h a t t h e t r u s t f u n d
h a d b e g u n t o p a y on t h e f a t h e r ' s b e h a l f .
5
19
2100358
not,
to
a t any p o i n t , i n c r e a s e
the
wife
increase
as
t h e p e r i o d i c a l i m o n y he was
required
i n the monthly
by
paragraph
benefits
he
five
received
based
from
paying
on
the
his trust
fund.
In
failing
to
increase
t h e amount
of
alimony
due
the
mother pursuant to paragraph f i v e of the d i v o r c e judgment, the
father
the
"fail[ed]
benefit
conclude
failed
trial
for
to perform
o f " the mother.
that
the t r i a l
to hold
court's
the t r i a l
not
court
the
that
appropriately.
abused
Thus,
i t sd i s c r e t i o n
i n contempt.
To
that
we
when i t
extent,
the
and t h e cause i s remanded
to enter
a judgment
that,
adjudging
to the extent
the father
6
father
i n contempt
p a y m e n t s t h a t he f a i l e d
terminate
by t h e c o u r t f o r
28 S o . 3 d a t 8.
judgment i s reversed,
note however,
hold
Reed,
court
the f a t h e r
t o be i n c o n t e m p t .
We
an a c t r e q u i r e d
the t r i a l
f o r any
court d i d
periodic-alimony
t o make a f t e r he f i l e d h i s p e t i t i o n t o
alimony
Discussing
obligation,
the
trial
court
acted
the termination of p e r i o d i c alimony
A l t h o u g h we c o n c l u d e t h a t t h e t r i a l
court
erred i n
f a i l i n g t o h o l d t h e f a t h e r i n c o n t e m p t , we w i l l l e a v e i t t o
t h e t r i a l c o u r t t o d e t e r m i n e , b a s e d on t h e e v i d e n c e p r e s e n t e d ,
t h e p e r i o d d u r i n g w h i c h t h e f a t h e r was i n v i o l a t i o n o f t h e
d i v o r c e j u d g m e n t a n d t h e amount owed t h e m o t h e r a s a r e s u l t o f
that violation.
6
20
2100358
based
the
on t h e r e c e i v i n g
opposite
spouse's c o h a b i t a t i o n
s e x , o u r supreme
court
with
someone o f
has w r i t t e n :
"The
Court
of C i v i l
Appeals,
i n i t s cases
c o n s t r u i n g § 30-2-55, has e s t a b l i s h e d t h e r u l e t h a t
'once t h e r e i s s u f f i c i e n t p r o o f t h a t t h e s p o u s e i s
o p e n l y l i v i n g o r c o h a b i t a t i n g w i t h a member o f t h e
o p p o s i t e s e x , no a l i m o n y a c c r u e s o r m a t u r e s b e y o n d
the time t h a t such c o h a b i t a t i o n began.'
R u s s e l l v.
R u s s e l l , 586 S o . 2 d 1 2 , 13 ( A l a . C i v . A p p . 1 9 9 1 ) .
See Wood v . Wood, 682 S o . 2 d 138 6 ( A l a . C i v . A p p .
1996).
T h e r e f o r e , t h e husband i s n o t l i a b l e f o r any
a l i m o n y a f t e r t h e date t h e w i f e began c o h a b i t a t i n g
w i t h h e r b o y f r i e n d i n 1986.
The t r i a l c o u r t
thus
erred
i n f i n d i n g t h e husband i n contempt and i n
ordering him to pay alimony f o r that p e r i o d a f t e r
the c o h a b i t a t i o n began."
Ex
parte
Ward,
previously
boyfriend
782
noted,
at least
So.
the
2d
1 2 8 5 , 1288
mother
as e a r l y
began
( A l a . 2000 ).
cohabiting
as November
2009,
with
which
As
her
i s when
the
f a t h e r s t o p p e d p a y i n g p e r i o d i c a l i m o n y t o h e r a n d a f t e r he
had
filed
Thus,
hispetition
the t r i a l
court
father
i n contempt
mother
claims
Finally,
in
failing
failure
accrued.
with
to terminate
to hold
to pay
regard
However,
the
payments
t o any a l i m o n y
to hold
the
f o l l o w i n g November
contends
the father
certain
obligation.
d i d not e r r i n f a i l i n g
f o r the period
t h e mother
h i s alimony
child
t h e mother
that
i n contempt
support
failed
21
the t r i a l
that,
2009.
court
because
erred
of h i s
she says,
to preserve
that
had
issue
2100358
for
appeal.
App.
2010),
In K e l l e y v. K e l l e y ,
this
court
52 S o . 3 d 534
(Ala. C i v .
wrote:
"The
wife next asserts that the t r i a l
court
exceeded
i t s discretion
by f a i l i n g
to f i n d the
husband i n contempt of c o u r t f o r h i s f a i l u r e t o pay
alimony,
t o m a i n t a i n h e a l t h i n s u r a n c e on t h e w i f e ,
and t o p r e s e r v e
the m a r i t a l assets i n accord
with
t h e p e n d e n t e l i t e o r d e r . ...
"We c a n n o t a d d r e s s t h e i s s u e s r e g a r d i n g
unpaid
a l i m o n y and h e a l t h i n s u r a n c e because t h e w i f e f a i l e d
to
preserve
those
issues
f o r appeal.
' [ I ] na
nonjury
case i n which the t r i a l
c o u r t m a k e s no
s p e c i f i c f i n d i n g s o f f a c t , a p a r t y m u s t move f o r a
new t r i a l
or otherwise
properly raise before the
t r i a l court the question r e l a t i n g to the s u f f i c i e n c y
or weight o f the evidence i n order t o p r e s e r v e
that
question f o r appellate review.'
New P r o p s . , L . L . C .
v . S t e w a r t , 905 S o . 2 d 7 9 7 , 8 0 1 - 0 2 ( A l a . 2 0 0 4 ) .
See
a l s o P o i n t C l e a r L a n d i n g A s s ' n , I n c . v . K a y l o r , 959
So. 2 d 6 7 2 , 677 ( A l a . C i v . A p p . 2 0 0 6 ) ( a c c o r d ) ; a n d
R u l e 5 2 ( b ) , A l a . R. C i v . P.
" I n t h i s c a s e , t h e t r i a l c o u r t made no f i n d i n g s
of f a c t ; i t s i m p l y e n t e r e d a judgment d i v o r c i n g t h e
p a r t i e s and d i v i d i n g t h e m a r i t a l p r o p e r t y .
Although
the w i f e
filed
a postjudgment motion, the t r i a l
c o u r t ' s f a i l u r e t o f i n d t h e h u s b a n d i n c o n t e m p t on
the
basis
of unpaid
alimony
and l a p s e d
health
i n s u r a n c e was n o t a s s e r t e d a s e r r o r i n t h a t m o t i o n .
As a r e s u l t , t h e w i f e h a s f a i l e d t o p r e s e r v e
those
issues f o r appellate review."
52
So. 3d a t 544.
In
findings
Thus,
the present
of
fact
to preserve
case,
the t r i a l
relative
f o r appeal
to
court
the issue
the issue
22
d i d n o t make
of
child
whether
any
support.
the evidence
2100358
demonstrated
father
in
required
that
the
contempt
by
the
for
trial
required
to
raising
that
file
focusing
have
of
divorce
judgment.
mother's
the
judgment
to
contempt
additional
in
the
affirm
the
on
the
for
cause
failing
a l i m o n y due
the
for
the
the
to
enter
opinion.
Both
parties'
mother
the
raise
mother
that
improper
issue,
cannot consider
the
the
of
issue
reverse
i t failed
child
the
to
before
five
of
the
we
paragraph
did
change
find
the
November
was
from h i s
trust
trial
court's
court
to
judgment
requests
denied.
23
for
in
the
increase
fund.
We
the
consistent
an
father
the
judgment.
consider
court's
2009,
of
paid
support.
trial
a result
a
was
specifically
m o t h e r as
trial
support
of
pay,
he
the
this court
to
to
and
are
and
that
presented
appeal
court's
foregoing,
of
not
trial
a result,
extent
balance
did
the
motion
Although
hold
child
judgments,
postjudgment
related
to
a l l the
daughter
monthly b e n e f i t s
the
prior
she
the
required
pay
motion,
As
the
to
supra.
parties'
contention
Based
a
was
Kelley,
on
custody
failure
filed
issue.
instead
court
court's
postjudgment
a
trial
We
remand
evidence
with
attorney's
this
fee
on
2100358
AFFIRMED
I N PART; REVERSED
Pittman,
Bryan,
I N PART; AND
REMANDED.
a n d Thomas, J J . , c o n c u r .
Moore, J . , concurs
i n the result,
24
without
writing.
