Terry Eugene Adams v. Audrey M. Adams
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REL: 03/21/2014
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2013-2014
_________________________
2120657
_________________________
Terry Eugene Adams
v.
Audrey M. Adams
Appeal from Dale Circuit Court
(DR-12-900037)
PITTMAN, Judge.
Audrey M. Adams ("the wife") brought an action in the
Dale Circuit Court seeking the dissolution of her marriage to
Terry Eugene Adams ("the husband"), as well as custody of the
two children born of the marriage, an award of child support,
and a division of marital property.
An interlocutory order
was issued at the wife's request awarding the wife custody of
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the children pendente lite and directing the parties to file
income affidavits so that child support could be calculated.
The husband filed an answer and a counterclaim seeking custody
of the children, an award of child support, and a division of
marital property. Neither party requested an award of alimony
in the pleadings. The parties then filed income affidavits in
response to the trial court's interlocutory order; the husband
averred in his response that his sole income consisted of nonemployment-related "SSI" (i.e., disability) benefits and that
those benefits were not to be considered in determining the
husband's gross income under Rule 32, Ala. R. Jud. Amin.,
pertaining to child-support awards.
After a brief ore tenus proceeding,1 during which the
trial court heard testimony from the wife, the husband, the
parties' older child, and a representative of a mental-health
provider who had treated or counseled the husband, the trial
court entered a judgment divorcing the parties, awarding the
parties joint legal custody of the children (with primary
physical custody of the children placed with the wife subject
to the husband's visitation rights), directing the wife to
enroll the children in counseling, awarding the wife $247 in
1
The trial
testimony.
transcript
consists
2
of
only
52
pages
of
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monthly child support, dividing the parties' marital property,
and reserving jurisdiction to award periodic alimony in the
future.
The husband filed a postjudgment motion challenging
the trial court's award of custody, that court's inclusion of
his disability benefits in determining the wife's childsupport award, the trial court's decision to reserve the issue
of
periodic
alimony
rather
than
award
alimony,
and
the
property division fashioned by the trial court. Following the
denial
of
that
motion,
the
husband,
acting
through
new
counsel, appealed to this court, raising each of the issues
that had been presented in his postjudgment motion.
"At the outset we note that, in reviewing the
judgment by the trial court, we are governed by the
well-established ore tenus rule. Under this rule,
when the trial court has been presented evidence in
a divorce case ore tenus, its judgment will be
presumed to be correct and will not be set aside by
this court unless it is plainly and palpably wrong
or unjust."
Brannon v. Brannon, 477 So. 2d 445, 446 (Ala. Civ. App. 1985).
The husband contends that
the
trial
court erred in
awarding primary physical custody of the parties' children to
the wife.
The husband acknowledges the applicability of the
"best-interests-of-the-child"
standard
of
review
in
the
setting of an initial award of custody and the trial court's
discretion, under Ex parte Devine, 398 So. 2d 686, 696-97
3
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(Ala. 1981), to consider a wide variety of factors, including
the gender, age, and characteristics of the children; the age,
health, character, and responsiveness of the contestants; and
each child's preference (should that child be of sufficient
age
and
maturity).
However,
he
asserts
that
the
wife
committed acts of domestic violence against him so as to give
rise to a presumption that an award of custody to the wife
would not be in the best interests of the children under the
Domestic and Family Violence Act (see Ala. Code 1975, § 30-3131).
There was limited testimony adduced at trial regarding
the parties' competing custody claims.
The wife testified
that the parties' children were 12 years old and 8 years old
at the time of trial and that the children had lived with her
during the pendency of the divorce action together with the
children's
17-year-old
half
brother,
who
helps
perform
household chores and attends school in the same school system
as the parties' children. The wife also testified that she is
available to assist with school homework after her work shift
ends each afternoon.
The parties' older child testified at
trial that it was his preference to remain with the wife and
that he was happy where he was; that child also testified that
the husband, following the parties' separation, had objected
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to his hairstyle (which, judging from comparative photographic
evidence, had lengthened) and that a recent moderate decline
in his scholastic grades was attributable not to the parties'
separation but to an increase in homework assignments from one
particular teacher.
The husband testified that
he
was concerned by the
changes in appearance of the parties' 12-year-old child and by
certain claimed escalations of objectionable behavior he had
observed as to both children; the husband stated that the
older child in particular had been consuming "vulgar" audio
and video media, that he had talked in a disrespectful manner,
and that he and the younger child had constantly fought and
made
threats
examination,
against
the
each
husband
other.
admitted
However,
that
the
on
cross-
children
had
behaved in a similar manner before the parties separated. The
husband opined that counseling would be appropriate for the
children (an opinion ultimately accepted by the trial court,
which directed that the children undergo counseling in its
judgment divorcing the parties). He further testified that he
had been receiving disability payments since approximately
2000, two years into the marriage, because of anxiety-related
panic attacks, but he admitted that he had "not had any major
problem
with
panic
attacks
in
5
years."
Another
witness
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testified that the husband had been diagnosed by his mentalhealth
professionals
as
suffering
from
"general
anxiety
disorder without manifestations" but added that the husband
had not been prescribed any medication by those professionals
for his condition.
The facts surrounding the husband's domestic-violence
assertion against the wife are somewhat unclear and are
disputed.
The husband testified that his principal concern
about the wife's having primary physical custody of the
parties' children was "[h]er temper"; he testified that the
wife had been arrested for domestic violence against him on
one occasion during which the wife had "grabbed" weapons and
"got after me with them" before attempting to hurt herself and
ingesting some unidentified medicine.
The wife admitted that
she had been convicted of domestic violence and had been
placed on probation,2 but she stated that she had attempted to
assault the husband on only one occasion during the marriage
when she had pushed the husband because, she said, he had
blocked her ability to exit the home.
Further, although the
wife admitted that she had made suicidal gestures in the past
because the husband had "kept fussing" at her and she could
2
No record of any trial or judgment in any criminal matter
involving the wife was placed in evidence.
6
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not see any other way to get away from the husband at the
time, she testified that she had sought psychiatric help for
her condition and had been informed that she was not at fault.
Although the evidence of record does not reveal the wife
to be a perfect parent, we cannot conclude that the trial
court erred in determining that placing the parties' children
in
her
primary
physical
custody
would
serve
their
best
interests notwithstanding the husband's contention regarding
the wife's past domestic violence.
The wife's testimony and
the husband's testimony, taken together, do not reveal that
any domestic violence on the wife's part had any effect upon
the children, and the lack of such evidence tends to counsel
deference in favor of the trial court's judgment in favor of
the wife.
See Enzor v. Enzor, 98 So. 3d 15, 19 (Ala. Civ.
App. 2011).
We further note the trial court's ability under
Devine to draw favorable inferences as to the wife's character
from her productive earning of wages during and after the
parties' marriage as compared to the husband's reliance for
over a decade upon unearned income stemming from a "generalanxiety"
condition
of
questionable
continued
severity.
Finally, we note the older child's expression of a custodial
preference in the wife's favor –– a factor that is entitled to
much weight (see Enzor, 98 So. 3d at 19) –– and the presence
7
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in the wife's home of a half sibling of the parties' children,
who should not be "perfunctorily separate[d]" by a custody
judgment.
See A.B. v. J.B., 40 So. 3d 723, 730 (Ala. Civ.
App. 2009).
We thus conclude that the placement of the
parties' children in the primary physical custody of the wife
was within the trial court's wide discretion notwithstanding
any prima facie statutory presumption against such a placement
that arose under § 30-3-131.
The husband contends that
the
trial
court erred in
directing him to pay a sum of monthly child support based in
part upon evidence that he was receiving $639 per month in
government benefits.
According to an evidentiary exhibit
offered by the husband at trial, which was prepared by the
federal Social Security Administration ("SSA"), the husband
has
received
"disability
benefits"
from
SSA
since
2000;
however, the SSA statement reveals that the monthly benefits
of $639 currently being paid to the husband are actually
Supplemental Security Income ("SSI") payments and that that
"payment
amount may
change from
month
to
month
if
[the
husband's] income or living situation changes." The nature of
the husband's payments is significant because, although "Rule
32(B)(2), Ala. R. Jud. Admin., includes disability payments in
... a party's 'gross income' for purposes of calculating
8
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child-support obligations pursuant to the guidelines," Hawkins
v. Cantrell, 963 So. 2d 103, 105 n.1 (Ala. Civ. App. 2007),
that rule includes SSI in a list of "means-tested publicassistance programs" whose payments are specifically excluded
from "gross income."
Rule 32(B)(2), Ala. R. Jud. Admin.; see
also Hawkins, 963 So. 2d at 105 n.1.
Although, six years
before the adoption of the Rule 32 child-support guidelines,
this court had held in Ex parte Griggs, 435 So. 2d 103 (Ala.
Civ. App. 1983), that "SSI benefits may be subjected to a
claim for past-due child support payments" in an enforcement
action, 435 So. 2d at 104, any precedential value Griggs might
otherwise
have
had
with
respect
to
a
trial
court's
determination of a parent's income for purposes of calculating
prospective child support was abrogated by the adoption of the
guidelines, and "[u]se of the child support guidelines is
mandatory
in
all
actions
filed
after
October
9,
1989."
Gautney v. Raymond, 709 So. 2d 1279, 1281 (Ala. Civ. App.
1998).
The Form CS-42 prepared by the trial court in determining
the parties' respective child-support obligations clearly
shows that that court, in seeking to apply the Rule 32
guidelines, included the husband's SSI benefits in determining
his gross income and, thereby, in determining the amount the
9
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husband should pay to the wife as child support each month.
In light of Rule 32(B)(2), we conclude that that court erred.
The trial court's judgment is reversed as to the husband's
child-support obligation, and the cause is remanded for that
court
to
properly
establish
the
husband's
child-support
obligation by reference to the guidelines as pertinent to the
husband's "'actual gross income [he] has the ability to earn'"
(see Herboso v. Herboso, 881 So. 2d 454, 457 (Ala. Civ. App.
2003),
quoting
Rule
32(B)(1),
Ala.
R.
Jud.
Admin.)
or,
alternatively, to deviate from the guidelines if warranted
(see Rule 32(A)(ii), Ala. R. Jud. Admin.).
The husband also contends that the trial court erred in
failing to award him periodic alimony instead of reserving the
issue.
Assuming, without deciding, that the husband timely
injected the issue of his potential entitlement to alimony
into the case for the first time at the postjudgment stage
despite having failed to seek alimony in his pleadings,3 we
cannot agree with the husband that the trial court erred to
reversal. "The burden is on the party who is seeking periodic
3
But cf. Hughes v. Hughes, 500 So. 2d 1140, 1141 (Ala.
Civ. App. 1986) (reversing award of periodic alimony to spouse
who made no request therefor; because parties' economic
evidence was referable to another disputed issue, alimony
issue could not be said to have been tried by consent).
10
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alimony to prove that a periodic-alimony award is warranted."
Taylor v. Taylor, 890 So. 2d 151, 155 (Ala. Civ. App. 2004).
In this case, the husband did not itemize any monthly monetary
needs in any evidentiary exhibit, nor does such an itemization
appear within the 12 transcribed pages of his trial testimony;
in contrast, evidence was adduced by the wife to the effect
that the husband had not assisted her in making economic
contributions to the expenses of the marriage in recent years
apart from occasional contributions to paying electricity
bills; thus, the trial court had no imperative duty to award
periodic alimony on this record.
See Weeks v. Weeks, 27 So.
3d 526, 533 (Ala. Civ. App. 2008), and Austin v. Austin, 678
So. 2d 1129, 1131 (Ala. Civ. App. 1996).
The husband contends
dividing
the
parties'
that the
property.
trial
At
court
trial,
the
erred
in
husband
submitted an evidentiary exhibit listing 11 itemized classes
or articles of personal and real property he was seeking to
have awarded to him; the husband was awarded all of that
property except for (a) one motor vehicle to which, during his
trial testimony, he had waived any claim;4 and (b) the parcel
4
The record reflects that that vehicle, a Ford Mustang
convertible automobile dating from the 1990s, had been
purchased by the wife using refunded income-tax withholdings
that, the trial court could properly have inferred, had come
11
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of land to which the parties' marital residence, a "doublewide" mobile home, had been permanently affixed and (according
to the wife's testimony) could not be moved.
The husband was
awarded a 1999 model Ford F-15 truck principally used by the
husband (and as to which the wife asserted no claim); he was
also, over the wife's objection, awarded a 2001 model Ford
Escort automobile that, despite its earlier acquisition by the
parties from a member of the husband's family, had been
borrowed against by the wife.
Notably, the parties were
directed by the trial court to "take the steps necessary to
have the non-owner" of particular property items "released
from the debts and security agreement," indicating the trial
court's intent to award the 2001 Escort automobile to the
husband free from all liens.
We cannot agree with the husband that
the
property
division fashioned by the trial court was inequitable so as to
fall outside the trial court's discretion. There was disputed
evidence presented at trial concerning the contributions of
the parties to the purchase of the land to which the mobile
from her wages and not the husband's SSI benefits (which are
not subject to federal income tax, see Dep't of the Treasury,
Internal Revenue Serv., Publication 915, Social Security and
Equivalent Railroad Retirement Benefits, p.1 (2013); on the
date this opinion was released, this document could be found
at: http://www.irs.gov/pub/irs-pdf/p915.pdf).
12
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home was permanently affixed, with the husband testifying that
the land had been purchased using only a lump-sum payment of
his SSI benefits and the wife testifying that the land had
been purchased using both the husband's benefits and income
earned by the wife.
The trial court could properly have
determined that the wife had contributed to the acquisition of
the land upon which the marital residence sat and that the
wife, who had been entrusted with the primary physical custody
of the children, had need of both that residence and the land
upon which it was situated so as to "ensure that [she] would
have an adequate residence in which to live and care for the
[children]."
Lamb v. Lamb, 939 So. 2d 918, 923-24 (Ala. Civ.
App. 2006). Further, the husband was awarded every automobile
that he both claimed in his evidentiary exhibit and sought in
his testimony.5
The trial court could properly have deemed
its property division to be equitable under the facts of this
case.
5
Although the husband has asserted, without citation to
any evidence presented at trial, that he does not yet have
possession of the 2001 Escort automobile because it has been
seized by creditors of the wife, we would note that the trial
court has the inherent authority, in appropriate postjudgment
proceedings, to enforce, against the wife, its award of the
2001 Escort automobile to the husband. See generally Grayson
v. Grayson, 628 So. 2d 918, 919-20 (Ala. Civ. App. 1993).
13
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Based upon the foregoing facts and authorities, the trial
court's judgment is reversed as it pertains to child support;
in all other respects, that judgment is affirmed.
The cause
is remanded for further proceedings consistent with this
opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Thomas and Donaldson, JJ., concur.
Thompson, P.J., concurs in the result, with writing.
Moore, J., concurs in the result, without writing.
14
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THOMPSON, Presiding Judge, concurring in the result.
I concur in the result of the main opinion.
I write
specially to address the issue of child support in this case.
I agree that the caselaw and Rule 32, Ala. R. Jud. Admin.,
provide that Supplemental Security Income ("SSI") benefits are
not to be used in determining a parent's gross income for the
purpose of calculating child support.
trial
court
improperly
used
the
It is clear that the
amount
of
SSI
benefits
received by Terry Eugene Adams ("the father") in calculating
child
support
and,
therefore,
that
that
award
must
be
reversed.
Given the specific facts of this case, I believe the
trial court may on remand, within its discretion, consider
imputing income to the father.
See Pardue v. Potter, 917 So.
2d 857 (Ala. Civ. App. 2005); and Hudson v. Hudson, [Ms.
2120884, Feb. 28, 2014]
So. 3d
(Ala. Civ. App. 2014).
The evidence in the record indicates that the father was
diagnosed with an anxiety disorder for which no medications
were prescribed and from which the father stated he has not
experienced symptoms in years.
Thus, the evidence in the
record could support a determination by the trial court that
the father is capable of making some contribution to the
support of his children.
The SSI program contains work15
2120657
incentive programs designed to allow benefit recipients to
attempt to return to work.
See, e.g., 42 U.S.C. § 1320b-20.
In discussing the basic principles of SSI benefits, the Social
Security Handbook explicitly states that "you are encouraged
to work if you can." Social Security Administration, Social
Security Handbook, § 2102.2.E.6
Given the law applicable to
SSI benefits and the evidence concerning the husband's lack of
symptoms or need for medication for years, the record may
support an imputation of income to the father.
6
On the date this opinion was released, a copy of § 2102
of the Social Security Handbook (as last revised on Feb. 24,
2009) could be found at: http://www.socialsecurity.gov/OP
Home/handbook/handbook.21/handbook-2102.html.
16
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