John E. Vajner, Jr. v. Suzanne P. Vajner

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Rel: 03/23/2012 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 2100178 John E. V a j n e r , J r . v. Suzanne P. V a j n e r Appeal PER from M o b i l e C i r c u i t (DR-07-900353.01) Court CURIAM. J o h n E. V a j n e r , J r . ("the f o r m e r h u s b a n d " ) , a judgment o f t h e M o b i l e of c o u r t P. V a j n e r f o rf a i l i n g Circuit from Court h o l d i n g him i n contempt t o payp e r i o d i c alimony, ("the f o r m e r w i f e " ) appeals awarding a periodic-alimony Suzanne arrearage of 2100178 $24,420, denying his obligation his request support his request for a m o d i f i c a t i o n of We Facts September finding order that also triplet 4, the The trial Six civil court months engineering USA, LLC, canceled been working. entered and custody an support p a r t i e s ' settlement sole p h y s i c a l custody the later, firm court sole p h y s i c a l custody f o r m e r w i f e to pay amount of $114 per for health of of order a l l other i n March was laid off when the firm's their agreement. two o f one sons to to the son the former month, and husband the coverage insurance made and d e n t a l expenses f o r a l l three reserved engineer, trial the responsible noncovered medical the History the to awarded i n the husband child- and f o r m e r h u s b a n d and former wife's for trial support denying parties e x i s t e d ; that pursuant former w i f e , ordered former of f o r d i v o r c i n g the provided court the Procedural 2008, The child suspension affirm. and grounds sons, temporary t o make p e r i o d i c - a l i m o n y p a y m e n t s , a n d obligation. On for a children. issues. 2009, the former from his job client, at husband, a ThyssenKrupp Mobile Steel t h e p r o j e c t on w h i c h t h e f o r m e r h u s b a n d Following a hearing 2 on t h e r e s e r v e d a issues, had the 2100178 trial court entered among o t h e r t h i n g s , demonstrated year" an a judgment determined ability on S e p t e m b e r that to earn 17, 2009, the former husband i n excess that, "ha[d] o f $140,000 p e r and o r d e r e d h i m t o p a y t h e f o r m e r w i f e $2,000 p e r month in p e r i o d i c alimony. residence t o be The t r i a l sold and court also ordered the marital the net proceeds t o be divided e q u a l l y between t h e p a r t i e s ; awarded p o s s e s s i o n o f t h e m a r i t a l r e s i d e n c e p e n d i n g s u c h s a l e t o t h e f o r m e r h u s b a n d a n d made t h e former husband responsible f o r the mortgage indebtedness, insurance, maintenance, and t a x e s on t h e r e s i d e n c e ; a w a r d e d the husband accounts former required for a l lfinancial the former husband t o pay the p r i v a t e - s c h o o l the son i n t h e custody of the former husband d i d n o t a p p e a l from t h e September Four seeking months a alleging later, finding that payments. he The of had former asserting that temporary suspension alimony i n h i s name; and he payments the former contempt failed until of to The 17, 2009, wife t o make husband continued as wife. filed the former judgment. a complaint former husband, any p e r i o d i c - a l i m o n y answered and c o u n t e r c l a i m e d , t o be u n e m p l o y e d his obligation to and s e e k i n g a make he h a d o b t a i n e d e m p l o y m e n t . 3 tuition periodicHe also 2100178 sought a m o d i f i c a t i o n of the d i v o r c e judgment to i n c r e a s e former of w i f e ' s c h i l d - s u p p o r t payment. this sold, case i n August yielding The net trial 2010, proceeds court heard the of ultrasound submitted adjusted the 11 technician her 2009 gross judgment approximately of after she a entry expenses. the indicating totaling The that court the former 53-year-old mechanical $1 been parties return said, to cover of her counsel husband 17, 2009, monthly of gross husband's monthly living for former the documentary had an during indebtedness her admitted office, that September credit-card she 46-year-old showing testified the and evidence retirement accounts million. former engineering had physician's She of objection trial more t h a n the i n s u f f i c i e n t w i t h o u t the former payments the of former w i f e , a Mobile because, periodic-alimony husband, The incurred $20,000 Over testimony $43,901. the had i n c o m e o f $ 3 , 6 4 3 was residence federal-income-tax income months at marital trial $78,681.61. the r e c e i v e d documentary evidence. At the time of the the from h u s b a n d has a b a c h e l o r ' s degree i n Purdue U n i v e r s i t y . His 2 0 0 9 f e d e r a l - i n c o m e - t a x r e t u r n s show a d j u s t e d g r o s s 4 2008 and incomes of 2100178 $104,060 and $31,452, respectively. testified that h i s 2008 r e t u r n months laid he The that said, h i s 2009 return reflected laid o f f a n d 10 of approximately had c o n s t i t u t e d former husband policy an that $883 income he and t h e two residence had been s o l d and, a f t e r w a r d s , tuition said, o f $1,073 former wife. children that the l i v i n g benefits, the funds accounts, a n d "some h e l p approximately on a $30,000 marital o f $850. the private-school t h e 17 m o n t h s of the after his a n d t h e two h i s unemployment-compensation a c c o u n t a n d two He s a i d had a contained 5 of in his the monthly rent from f a m i l y . " i n March 2009. health- children expenses f o rhimself i n h i s checking which that, expenses before paying during i n h i s custody by u s i n g accounts, March p e r month f o r t h e son i n t h e c u s t o d y He t e s t i f i e d he h a d p a i d payment he h a d b e e n since premium and he mortgage p e r month had monthly monthly f o r himself $1,167 $1,000 custody, addition, a h i s only stated including insurance savings he h a d e v e r o f u n e m p l o y m e n t - c o m p e n s a t i o n b e n e f i t s a f t e r he h a d b e e n o f f -- b e n e f i t s layoff husband he h a d b e e n salary ($21,860) before $4,675, In former r e f l e c t e d t h e "most m a d e " a s a n e n g i n e e r ; he s a i d 2 months' The 2009, that combined had been savings t h e two total of reduced to a 2100178 combined total acknowledged accounts of that t o make "chose[n] not withdrawn although he account, he The do tried been used the but, He 15 assistance unable borrow t o do stated he through The correspondence had from however, w i f e acknowledged former husband said, he his he from he had he had had not and was that he He that, 401(k) not former testified husband documenting been was been then had a g e n c i e s and had offered any i n Mobile submitted his been laid actively t h a t he 3 engineering firms t h a t she had (a) had 2010. He to position. employed, o f f , or h i s retirement accounts. 6 (d) had (b) withdrawn find stated The no e v i d e n c e i n d i c a t i n g currently and electronic- attempts o f f e r e d employment, ( c ) had not c o n t i n u o u s l y sought after those Chevron so b e c a u s e f r o m M a r c h 2009 t h r o u g h J u l y not, he 5 career-placement f o r employment w i t h employment in h i s retirement accounts to husband other companies. mail funds husband Chevron. former applied former that testified s e e k i n g employment s i n c e March 2009. sought The payments, so. from 2010. have h i s alimony had of August could amounts had employee he to" any an $2,686 by that former that had the been employment any funds 2100178 The trial determining for court that nonpayment wife the of entered former the former the marital residence. former husband's husband's alimony arrearage share of The motion to denied request for of divorce provisions judgment trial includes court's demeanor of postjudgment this the no the $24,420 court to payments judgment. The but b a s e d upon " t h e Following former be from husband of court the and the former from sale denied of the of his impliedly child-support August 6, 2010, i t states that the sworn t e s t i m o n y and the his denial timely of appealed Review "'A d e c i s i o n t o m o d i f y an award of periodic alimony is within the sound discretion of the trial court. Bush v. B u s h , 784 So. 2 d 2 9 9 , 300 (Ala. Civ. App. 2 0 0 0 ) . The t r i a l c o u r t ' s j u d g m e n t on this m a t t e r i s p r e s u m e d c o r r e c t a n d w i l l n o t be r e v e r s e d u n l e s s i t i s u n s u p p o r t e d by the evidence or is otherwise plainly and 7 of paid court. Standard 2010, suspension of fact, 6, the expressly modification witnesses." motion, awarding temporary f i n d i n g s of d e c i s i o n was the a August i n contempt proceeds periodic-alimony a on and of the trial for obligation his make judgment h u s b a n d was periodic a periodic-alimony a to 2100178 p a l p a b l y w r o n g . P o s e y v . P o s e y , 634 S o . 2 d 571, 572 ( A l a . C i v . A p p . 1994 ) . A p e r i o d i c - a l i m o n y o b l i g a t i o n may b e m o d i f i e d o n l y upon a showing o f a m a t e r i a l change o f circumstances that has occurred s i n c e t h e l a s t a w a r d was made. K i e f e r v . K i e f e r , 671 So. 2 d 7 1 0 , 7 1 1 ( A l a . C i v . A p p . 1 9 9 5 ) . ' "'R.L.W. v . C.L.W., 872 S o . 2 d 8 7 6 , 877 ( A l a . C i v . App. 2 0 0 3 ) . 'Even i f a c h a n g e o f c i r c u m s t a n c e s i s shown, t h e t r i a l c o u r t i s n o t r e q u i r e d t o g r a n t t h e modification.' K i e f e r v . K i e f e r , 671 S o . 2 d 7 1 0 , 7 1 1 ( A l a . C i v . A p p . 1995) ( c i t i n g M u l l i n s v . M u l l i n s , 475 So. 2 d 578 ( A l a . C i v . A p p . 1 9 8 5 ) ) . "The determination of whether a p a r t y i si n contempt o f court r e s t s e n t i r e l y w i t h i n t h e sound d i s c r e t i o n o f t h e t r i a l c o u r t , a n d , ' " a b s e n t an a b u s e of t h a t d i s c r e t i o n o r u n l e s s t h e judgment o f t h e t r i a l c o u r t i s u n s u p p o r t e d by t h e e v i d e n c e so as t o be plainly and p a l p a b l y wrong, this court will a f f i r m . " ' G o r d o n v . G o r d o n , 804 S o . 2 d 2 4 1 , 2 4 3 ( A l a . Civ. A p p . 2 0 0 1 ) ( q u o t i n g S t a c k v . S t a c k , 646 S o . 2 d 5 1 , 56 ( A l a . C i v . A p p . 1 9 9 4 ) ) . " Miller v. M i l l e r , 47 S o . 3 d 2 6 2 , 264 ( A l a . C i v . A p p . 2 0 0 9 ) . "'[T]he m o d i f i c a t i o n of a c h i l d - s u p p o r t order r e s t s soundly w i t h i n t h e t r i a l c o u r t ' s d i s c r e t i o n and w i l l n o t be d i s t u r b e d on a p p e a l a b s e n t a s h o w i n g t h a t t h e r u l i n g i s n o t supported by t h e evidence and, thus, i s p l a i n l y a n d p a l p a b l y w r o n g . B e r r y h i l l v . R e e v e s , 705 So. 2 d 5 0 5 ( A l a . C i v . A p p . 1 9 9 7 ) . ' " Thomas 200 6) Civ. v. Campbell, 960 S o . 2 d 6 9 4 , 6 9 6 - 9 7 (quoting Lindsey v. P a t t e r s o n , App. 2003)). 8 (Ala. Civ. 883 S o . 2 d 2 2 3 , 225 App. (Ala. 2100178 Suspension Citing 2010); Poh Barnes, Rotar Whited v. 54 v. Poh, Whited, 64 So. 3d 900 Weiland, v. So. 591 Wise v. Wise, husband 396 argues 65 3d 49 Alimony So. 3d So. 2d 2d 111 the 418 (Ala. Civ. ( A l a . C i v . App. ( A l a . C i v . App. So. that of P e r i o d i c 893 2010); court King Miller, ( A l a . C i v . App. ( A l a . C i v . App. trial 2010); 1991); 1981), says, alimony consisted We will former from solely focus husband the After the was former alimony seeking a former husband periodic- the the other four the d i v o r c e then employed wife the d i v o r c e , making of Whited In M i l l e r , pay o n l y two and support. to income, Miller alimony; (who current $1,500 p e r finding -- because cases of to pay he The as counterclaimed, alimony o b l i g a t i o n . The 9 cited by they the concern with child required the former e a r n i n g $80,000 a n n u a l l y ) month former contempt benefits. deal in periodic the former husband l o s t payments. former income, which s i x cases judgment and and ignored uncontroverted of unemployment-compensation on periodic husband his v. supra; e v i d e n c e d e m o n s t r a t i n g t h a t he d i d n o t h a v e t h e a b i l i t y periodic App. to h i s j o b and wife the seeking alimony. filed former to a stopped complaint husband; the terminate his former w i f e d i d not d i s p u t e 2100178 the former husband's continuously dispute was since husband's p e r month determined that that he h a d s o u g h t t h e t i m e he h a d l o s t the former $800 testimony testimony i n retirement the former husband was failing the former husband's p e r i o d i c - a l i m o n y the former trial court's that express finding being however, husband Therefore, husband's i n i t s September unemployed, pay the wife former the t r i a l $2,000 the t r i a l ability the former p e r month d i d not 17, appeal court's concerning to support) In the made judgment an that, had the a b i l i t y i n periodic alimony. from determination. that determination The as t o t h e f o r m e r t o p a y became t h e l a w o f t h e c a s e . 10 had evidence. had a l r e a d y husband the husband to pay. 2009, court on t h e t r i a l of evidence court terminate alimony, the former had the a b i l i t y court This finding t o pay p e r i o d i c (or the l a c k the obligor case, to obligation. court of to t o p a y was u n s u p p o r t e d b y t h e t o make present despite and r e f u s e d that income The t r i a l i n contempt an e x p r e s s finding Nor d i d she h i s only i s d i s t i n g u i s h a b l e because i t turned failure finding ability implied income Miller that, without husband's court's sufficient a t o pay p e r i o d i c alimony holding that benefits. for reversed, h i s job. employment "'"Under 2100178 the doctrine established continues on of the 'law of between the the same t o be t h e l a w o f t h a t general principles, so predicated long case,' parties as was case."'" the McMorrough v. McMorrough, 196 ( A l a . C i v . App. 1997), Ross (quoting continue App. 2005) Stephens when former husband a recipient evidence cites former indicating that an does n o t have t h e a b i l i t y in which the t r i a l to be the v. Stephens, or not correct on Blumberg fails to makes rebut payor proposition does n o t h e l p t h e former husband First, husband paying unlike the obligors acknowledged his monthly at living i n this that an initial expenses 11 spouse award a l i m o n y award of i s not Whited, 65 but i t c a s e f o r two r e a s o n s . and M i l l e r , he that undisputed i s unassailable, i n Whited trial v. Touche alimony, a judgment e v i d e n c e a n d m u s t be r e v e r s e d . That of the former based 2d a t 420-21. the 699 S o . 2 d 1 9 4 , t o m o d i f y an e x i s t i n g So. which facts alimony or declines on s u f f i c i e n t case f o r the proposition unemployed either same once (Ala. 1987)). to pay p e r i o d i c court i s 930 S o . 2 d 5 1 1 , 514 ( A l a . Whited spouse the facts quoting i n turn & C o . , 514 S o . 2 d 9 2 2 , 924 The in case, whether decision Civ. whatever had by the former regularly using both been his 2100178 unemployment-compensation checking So. and s a v i n g s 2 d 9 2 0 , 924 holding the brokerage satisfy trial the Compare Stamm i n contempt husband's have $30,000 from and App. 2004) free that the former living expenses v. Yohey, (holding that ... t h e h u s b a n d relying "the t r i a l the issue of the former months before the t r i a l 12 [the IRAs as required [that w i t h d r a w a l s from h i s drawing and t o c o n c l u d e benefits as from and 'income'"). discussed, the t r i a l husband's alimony of this accounts c o u r t was e n t i t l e d t o on h i s r e t i r e m e n t a c c o u n t s a s we h a v e p r e v i o u s l y the 890 S o . 2 d 1 6 0 , 168 ( A l a . was c u r r e n t l y $2,000 p e r month i n p e r i o d i c 11 his husband had c o u l d be a c c o u n t s were f o r emergency needs] decided 922 judgment because [to] c o n s i d e r the ex-husband's retirement Second, a and, t h e r e f o r e , the husband's t e s t i m o n y regularly Stamm, retirement disbelieve that in his directing arrearage his individual " f o r regular c o u r t ] was alimony inferred pay a l i m o n y " ) ; Yohey Civ. v. (affirming a s o u r c e o f income from which t h e ex-husband to funds t o p a y t h e f o r m e r w i f e $ 1 9 , 2 0 0 i n a l u m p sum t o court could ("IRAs") trial husband the former withdrawn accounts. and ( A l a . C i v . App. 2004) former firm benefits ability on S e p t e m b e r case court to pay 1 7 , 2 0 0 9 -¬ -- a n d , b e c a u s e the 2100178 former husband court's ruling d i d not became appeal the law h a d no b u r d e n o f r e b u t t a l ; burden 2009, to show judgment on A u g u s t 2, The 17, 2009, attempts from March evidence search engineering or the court facts does upon were not the hearing were more through The which the trial former wife the September n o t t h e same a s c a s e was argue that leading has at the m o d i f i c a t i o n leading to September his earlier In h i s b r i e f to explain how to the regarding his prevailing in i n any m a t e r i a l r e s p e c t at the hearing facts h i s attempts hearing conditions 17, tried. than 2009. failed the up t o t h e extensive September economic judgment, t h e f o r m e r husband had the when t h e p r e s e n t industry differed evidence presented 17, 2009, instead, the former husband presented that of the case. predicated after judgment court, In the former husband employment job was 2010, find this that from up t o t h e the from the September judgment. Ex p a r t e Murphy, 886 S o . 2 d 90 ( A l a . 2003), our supreme stated: "'In making [a] d e t e r m i n a t i o n [whether t o modify p e r i o d i c alimony], the t r i a l court should consider such f a c t o r s as t h e r e c i p i e n t spouse's financial n e e d s , t h e amount o f t h e e s t a t e o f e a c h s p o u s e , t h e ability of the payor spouse to respond to the 13 2100178 r e c i p i e n t spouse's needs, t h e a b i l i t y o f each spouse to e a r n income, and t h e r e m a r r i a g e o f e i t h e r p a r t y . " 886 1357 So. 2 d a t 92 ( A l a . C i v . App. Marshall, added). App. (quoting 622 So. 2d I n Shewbart 2010), this court Swain 1995), 390 v. v. Swain, citing in 660 turn ( A l a . C i v . App. Shewbart, 64 So. So. Marshall 1993)) 3d 2d 1356, 1 0 80 v. (emphasis (Ala. Civ. stated: "Once t h e f i n a n c i a l need o f t h e ... spouse [seeking p e r i o d i c alimony] i s e s t a b l i s h e d , the t r i a l court should consider the a b i l i t y of the responding s p o u s e t o m e e t t h a t n e e d . S e e H e r b o s o v . H e r b o s o , 881 So. 2 d 4 5 4 , 458 ( A l a . C i v . A p p . 2 0 0 3 ) . The a b i l i t y t o p a y may be p r o v e n b y s h o w i n g t h a t t h e r e s p o n d i n g spouse has a s u f f i c i e n t s e p a r a t e e s t a t e , following the division of the m a r i t a l property, see § 3 0 - 2 - 5 1 ( a ) , A l a . Code 1 9 7 5 , a n d / o r s u f f i c i e n t e a r n i n g capacity to consistently provide the p e t i t i o n i n g spouse w i t h the n e c e s s a r y funds t o enable him or her to m a i n t a i n t h e p a r t i e s ' former m a r i t a l s t a n d a r d o f living. Herboso, supra." 64 S o . 3 d a t 1088 (emphasis added). 2d a t 420; S o s e b e e v. S o s e b e e , Whited, 65 S o . 896 S o . 2 d 5 5 7 , 560 (Ala. Civ. 671 S o . 2 d 7 1 0 , 711 (Ala. Civ. 634 S o . 2 d 5 7 1 , 5 7 3 - 7 4 (Ala. Civ. App. 2004); Kiefer v. K i e f e r , App. 1995); Posey App. 1994); and White v. W h i t e , App. 1991). v. Posey, See a l s o 14 589 S o . 2 d 7 4 0 , 742 (Ala. Civ. 2100178 Contempt The 17, trial 2009, court that the periodic alimony. 2, the 2010, had former savings trial former husband refusal had ... a with a court's A l a . R. Civ. P. the former husband " s h a l l such contempt by a judgment of alimony from the sale held in the the be i n favor arrearage satisfied of the office former by of trial allowed former ($24,420) paying marital of the the to and the residence, circuit funds i n so. The Rule himself trial i n the The of court amount that wife proceeds clerk. or determined directed former The former order." to purge wife have failure court husband i n contempt of court 15 the August that the ... pay could n o t t o do obeying a l l future orders." entered be he using lawful to on continuing The September case that chosen "willful, that finding of the present acknowledged on ability therefore, authorized to find t o comply judgment the a l i m o n y payments by committed 70A(a)(2)(D), the had a c c o u n t s b u t t h a t he h a d c o u r t was, husband husband In the t r i a l made t h e c o u r t - o r d e r e d his p r e v i o u s l y determined, the $24,420 then being judgment i s affirmed. 2100178 Modification of Child Support The f o r m e r h u s b a n d r e q u e s t e d t h a t t h e f o r m e r w i f e ' s support share obligation be modified, of the parties' dramatically. husband had necessarily former When the husband's adjusted the t r i a l capacity rejected because, gross court to earn the assertion request he income found made asserted, had that $140,000 his decreased the former annually, the basis f o r a modification. child- i t of the Further, the f o r m e r h u s b a n d p r e s e n t e d no e v i d e n c e i n d i c a t i n g t h a t t h e n e e d s of the the c h i l d r e n i n h i s custody trial request court's judgment denying the i s due t o be affirmed. AFFIRMED. the judges concur. 16 Accordingly, former f o ra m o d i f i c a t i o n o f the former wife's obligation All had increased. husband's child-support

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