A.B. v. J.B.

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REL: 12/18/2009 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, 2009-2010 2080078 A.B. v. J.B. Appeal from Montgomery C i r c u i t Court (DR-08-28) PER CURIAM. A.B. Montgomery ("the w i f e " ) Circuit appeals Court husband"), awarding primary minor child, J.S.B., from divorcing a judgment h e r from p h y s i c a l custody t o t h e husband, o fthe J.B. ("the of the parties' awarding the wife 2080078 visitation with the child, ordering the wife support, assessing a child-support arrearage and r e q u i r i n g the w i f e insurance f o r the expenses for parties to Service the in child the ("the t o pay and child. one-half The e q u a l l y share IRS") one-half and trial husband's a t t o r n e y ' s fees. We On November 29, Elmore C i r c u i t wife 2007, of health also the wife affirm ordered the I n t e r n a l Revenue to pay one-half i n part and of reverse p a r t i e s on one minor December 22, asserting that Background the Court seeking alleged that complaint, wife a divorce counterclaimed support, change and of after a venue to the complaint in 2003. The had husband to answered the one but was b o r n i n A u g u s t 1997 of the fees. c h i l d r e n had J . S . B . , who marriage. was The The husband Circuit also Court, been during born to husband children, visitation, Montgomery 2 two The been born not and the from the husband. J.S.B., ceremonial f o r custody attorney's a child, t h e p a r t i e s ' common-law m a r r i a g e , parties filed who b o r n t o t h e p a r t i e s : D.B., the costs wife, part. Procedural the court the child any e x t r a - c u r r i c u l a r a d e b t owed t o ordered pay against the of the of to child sought a asserting 2080078 that he and the wife t h e i r m a r r i a g e ; the After Court ("the oldest The the trial in Montgomery transferred court"), D.B., also lived County Elmore C i r c u i t Court granted that c a s e was child, parties had was the not to the parties the e n t i t l e d to stipulated husband's claim her motion. Montgomery C i r c u i t as that biological s t i p u l a t e d t h a t whomever r e c e i v e d J . S . B . w o u l d be during the child. custody a dependent for of tax purposes. On August 5, 2008, after a hearing, the trial court e n t e r e d a judgment d i v o r c i n g the p a r t i e s , awarding j o i n t custody of physical custody to the $551 each J.S.B. month in to both h u s b a n d , and child established to at ordered paid the representing child; the wife to rate pay o n e - h a l f of ordered the an an the parties to ordering The the cost wife to court pay also amount o f $5,000 $100 month; amount of h e a l t h primary to per the husband for the costs of sports-related activities; to share the trial additional additional and share t h e c h i l d ' s e x t r a c u r r i c u l a r and ordered awarding a r r e a r a g e i n the of parties but support. a child-support be parties legal equally 3 insurance equally the in costs the of any debts 2080078 owed t o t h e I R S . F i n a l l y , pay t h e husband's a t t o r n e y ' s The Civ. in the t r i a l mother timely P., a m o t i o n the alternative, a motion On 9, denied motion; motion, i n support September Reconsider." On t h a t 17, arguments, motion; to recuse. a response On oral postjudgment the husband f i l e d documentation 59, A l a . R. amend, o r v a c a t e t h e j u d g m e n t o r , after order g r a n t i n g her motion i n that t o Rule same d a t e , t h e seeking the recusal of the t r i a l 2008, the wife's pursuant f o r a new t r i a l . mother f i l e d September fees. filed, to alter, court ordered the wife to 1 opposing i t also the wife's court entered an the wife postjudgment attorney of h i s attorney's On S e p t e m b e r 2 0 , 2 0 0 8 , the t r i a l On S e p t e m b e r 1 0 , 2 0 0 8 , t h e husband's 2008, judge. submitted fees. filed the wife a "Motion to appealed. On a p p e a l , t h e w i f e h a s n o t c h a l l e n g e d t h e p r o p r i e t y o f t h e t r i a l j u d g e ' s g r a n t i n g t h e w i f e ' s m o t i o n t o r e c u s e on t h e same date that he denied her postjudgment motion. Additionally, after the t r i a l judge e n t e r e d an o r d e r o f r e c u s a l , t h e c a s e was s u b s e q u e n t l y r e a s s i g n e d t o a n o t h e r t r i a l j u d g e , who a l s o e n t e r e d a n o r d e r o f r e c u s a l . T h e c a s e was then reassigned t o the sole remaining a c t i v e t r i a l judge i n the d o m e s t i c - r e l a t i o n s d i v i s i o n o f t h e Montgomery Circuit C o u r t , who a l s o e n t e r e d a n o r d e r o f r e c u s a l . 1 4 2080078 Background At the evidence hearing was received, husband had married wife, she because and they i n this the wife on F e b r u a r y the husband could matter, had at which testified that 11, 1998. she and t h e According 2006 attributed the wife to the wife, treatment f o r h i s substance-abuse treatment facility. attempted t o have t h e husband treatment facility during The wife their a t an admitted committed November substance- t h e husband had sought problem also to the i n November m a r i t a l p r o b l e m s t o money i s s u e s a n d t h e h u s b a n d ' s abuse i s s u e s . tenus According separated not get along; ore that to a 2006, inpatient she had mental-health around t h e time of the p a r t i e s ' s e p a r a t i o n , because o f t h e husband's s u i c i d a l and threatening gestures. The w i f e ' s p e t i t i o n f o r c o m m i t m e n t was dismissed. At right the hearing, when adulterous questioned affair the wife invoked as t o whether during the marriage. her F i f t h Amendment she had engaged The w i f e a l s o i n an invoked h e r F i f t h Amendment r i g h t when a s k e d i f , w h i l e i n t h e p r e s e n c e of her daughters, married t o another s h e h a d c o h a b i t a t e d w i t h a man who w a s woman. The w i f e , 5 however, admitted still that 2080078 c e r t a i n i n c r i m i n a t i n g photographs o f h e r s e l f and h e r paramour, T i m o t h y V., h a d b e e n p o s t e d o n h e r " M y S p a c e " I n t e r n e t i n 2007, w h i l e t h e p a r t i e s were s t i l l separated. been The w i f e testified, l e g a l l y married however, account b u t were that her account had "hacked." The wife testified that, upon the parties' separation, she and t h e c h i l d r e n h a d r e m a i n e d i n t h e m a r i t a l r e s i d e n c e the husband had i n i t i a l l y moved o u t . Apparently, l a t e r moved b a c k i n t o t h e m a r i t a l r e s i d e n c e out of that residence; residence with residence, the wife lived different house female the husband. i n Elmore County. a t v a r i o u s a d d r e s s e s , moving i n with The w i f e D.B. wife testified they would J.S.B. wife leaving e v e n t u a l l y moved into a s u b s e q u e n t l y moved i n w i t h t h e D.B. continued to live with wife. The that i n the marital marital w i f e ; a t the time of the hearing, the moved the friends. After t h e husband and t h e w i f e the c h i l d r e n remained and According that a l t e r n a t e three-month t o t h e w i f e , J.S.B. f o r a three-month p e r i o d J.S.B. she and t h e husband agreed custodial periods had then l i v e d and t h e w i f e t o the husband; the wife t e s t i f i e d 6 had had then with with the returned t h a t t h e husband had 2080078 not returned J.S.B. custodial period. the hearing, months. she The w i f e admitted had not p r o v i d e d wife with The J.S.B. wife t o l d D.B. insured At The three-month t o J.S.B. The wife testified According through to the wife, never the time worked during the parties owned $1,833. initially t h a t t h e h u s b a n d was sought to the wife collect had been not child real 7 The property employed full-time She e x p l a i n e d of the marriage. no been By t h e t i m e o f t h e o n e y e a r ; s h e was w o r k i n g most both father. of the hearing, m o n t h l y i n c o m e was had Medicaid. was b o r n a n d t h a t t h e y h a d had and she and t h e husband had had been t o l d wife t h a t D.B. other weekend" and t h a t they f r o m D.B.'s b i o l o g i c a l for approximately that support wife acknowledged that h o w e v e r , D.B. father. support his t h a t 19-month p e r i o d , t h a t t h e h u s b a n d was h e r f a t h e r . hearing, not The relationship." l i v i n g t o g e t h e r w h e n D.B. gross that, during any f i n a n c i a l and J.S.B. were her after acknowledged that, at the time of saw e a c h o t h e r " e v e r y a "normal s i s t e r D.B. wife t h a t the husband o c c a s i o n a l l y had r e f u s e d t o a l l o w the to v i s i t J.S.B. the J . S . B . h a d b e e n r e s i d i n g w i t h t h e h u s b a n d f o r 19 The w i f e claimed to that wife and no and h e r she had testified personal 2080078 property. the According IRS. might The wife have through into the of B.M., depression; was however, any she he diagnosed she and J.S.B. had 2006 but parties had satisfied been to she introduced attest to been admitted the treatment she had suffered denied that her While at the mental-health with the bipolar disorder; been misdiagnosed. time living of the with paternal stepgrandfather. was employed full-time with According a from depression she testified, denied taking cable time to company of the hearing, grandmother the and time 8 of the hearing. and husband, he he earned $ 1 , 8 5 0 p e r m o n t h ; he h a d b e e n e m p l o y e d w i t h months a t the the hearing. the the a of facility, She that, at paternal company f o r two the to for that she the approximately the paternal property; she in testified were debt J.S.B.'s purporting that past, had at husband personal acknowledged the that any to debt. facility medications The of testified in and document required medication. wife V.M. that mental-health depression to a wife p a r t i e s owed a d e b t paternal stepgrandfather, evidence The the that conveyance satisfaction wife, also testified owed g r a n d m o t h e r and to the that According 2080078 t o t h e h u s b a n d , he i n c u r r e d $ 5 0 0 p e r m o n t h f o r c h i l d had recently obtained covering On J.S.B. as longer as $24 able a plumber an two been of approximately the husband and that husband as ruptured disks prescribed had Cymbalta, i n h i s back. and was he testified he took Xanax, recently an had relations that had that he earned as he no of c e r t a i n t h a t he h a d b e e n Adderall, was was medical diagnosed a n d t h a t he a had he had stimulant, and The h u s b a n d a l s o a d m i t t e d t h a t , an a n t i a n x i e t y m e d i c a t i o n , taken Flexeril, a on that relaxer, muscle and and antidepressant. inadvertently with m a r i t a l home. that, during discovered T i m o t h y V., the husband's to a mental-health admitted that the p a r t i e s ' marriage, the The h u s b a n d t e s t i f i e d admitted himself husband month. For those conditions, taking The h u s b a n d t e s t i f i e d The admitted a plumber because a pain medication. occasion, he $264 p e r previously The h u s b a n d t e s t i f i e d He through h i s employer, attention deficit/hyperactivity disorder Lorcet, he insurance The hour. t o work conditions. with at a cost cross-examination, certified much health care. he had 9 wife best having sexual friend, i n the t h a t he h a d facility attempted subsequently f o r three suicide on days. more 2080078 t h a n one occasion around the and t o t h e h u s b a n d , he same m e n t a l - h e a l t h a facility have appointed been to for remained at the him According during the maintain from wife time, seven petition was and he had After worked very that had e l e c t e d not t o do so. has a bad temper, t h a t denied that visitation because, he he she had a dismissed. testified that litem days. had and filed had with ever J.S.B. had he little had not been able she The husband had done so to struck children. exercising h u s b a n d was that the around had ad wife the husband point wife guardian to husband the that the marriage, husband, the w i f e had one The the presence of at six wife's f r o m w o r k i n g and that the during for A t o the husband, the w i f e had employment but testified The the marriage. prevented her husband facility commitment h e a r i n g , after 2006. been h e l d i n i n l a t e November 2006, a l s o committed. the occurred i n November s u b s e q u e n t l y had time of the p a r t i e s ' s e p a r a t i o n , petition him of t h o s e a t t e m p t s had time of the p a r t i e s ' s e p a r a t i o n , According the t h a t one prevented According in the the wife to wanted b o t h c h i l d r e n t o l i v e w i t h him said, the the b e t t e r parent. wife The 10 had the at indicated that the husband t e s t i f i e d that the 2080078 wife later her but had c h a n g e d t h e l i v i n g a r r a n g e m e n t , m o v i n g D.B. l e a v i n g J.S.B. w i t h him. asked the J.S.B., but, not "pay also wife he anything from the The referred to years. had had her that had to "the that she and t o T i f f a n y , she b e c a u s e o f an a d u l t e r o u s affair with would husband "cancelled b i l l " IRS. her former husband, the w i f e a n d T i m o t h y a r e now and T i m o t h y i n 2006. Tiffany also testified had been the caregiver J.S.B. the presumably t h a t the during the for divorced t h a t occurred between the to he "stimulus" been been f r i e n d s w i t h t h e h u s b a n d and primary she The regarding p a r t i e s owed t h e testified According help that to pay." confusingly, reference debt the V. for financial t o o k the [ s t i m u l u s ] checks t o pay husband's the to the husband, responded f e d e r a l government b i l l . " had wife a judge t o l d although that "they T i m o t h y V., the until o u t " and Tiffany many o c c a s i o n s said, testified, checks on According in with wife husband parties' marriage. V.M., husband during J.S.B.'s p a t e r n a l and their the wife marriage. had grandmother, lived The with paternal t h a t , d u r i n g t h e t i m e t h e h u s b a n d and 11 her testified at that certain grandmother the w i f e l i v e d the times testified with her, 2080078 the wife d i d not According patient much to the paternal with and had The p a t e r n a l had witnessed with cooking grandmother, the children appropriately. she help the wife disciplined D.B. cleaning. t h e husband grandmother strike and also was more them more testified that and drag h e r by h e r grandmother a l s o t e s t i f i e d that she had had hair. The p a t e r n a l to retire because grandfather, despite to be the fact i n day paternal is who live was that care while fora child grandmother, to She a l s o t h e husband liked step- testified worked that, needed because the t o keep t h e house d a r k and " i t t o be i n t h e r e . " According amount was i n t e n d e d f o rt h e husband I. first the paternal to the t h e h u s b a n d p a i d h e r $800 p e r m o n t h t o and g r o c e r i e s The w i f e of s h e w a s a t home a l l d a y , J . S . B . i n her house; that utilities, the health on oxygen. stepgrandfather n o t good paternal of t o cover rent, a n d J.S.B. Custody challenges t h e award o f c u s t o d y o f J.S.B. t h e husband. "'When e v i d e n c e i n a c h i l d - c u s t o d y presented ore tenus t o the t r i a l court, f i n d i n g s o f f a c t b a s e d on t h a t e v i d e n c e t o be c o r r e c t . The t r i a l court i s 12 case has been that court's a r e presumed i n the best 2080078 p o s i t i o n t o make a c u s t o d y d e t e r m i n a t i o n - - i t h e a r s the e v i d e n c e and observes t h e w i t n e s s e s . A p p e l l a t e c o u r t s do n o t s i t i n j u d g m e n t o f d i s p u t e d e v i d e n c e t h a t was p r e s e n t e d o r e t e n u s b e f o r e t h e t r i a l c o u r t in a custody hearing.'" B u r g e t t v. B u r g e t t , 995 S o . 2 d 9 0 7 , (quoting Bryowsky, Ex parte 912 67 6 ( A l a . C i v . App. So. 2d 1322, 2008) 1324 (Ala. 1996)). The w i f e a s s e r t s t h a t t h e t r i a l of J.S.B. t o t h e husband s e p a r a t e s c o u r t ' s award of t h e two h a l f a n d J . S . B . , a n d t h a t no c o m p e l l i n g r e a s o n D.B. and J.S.B. other cases, 2006); and Bishop Mardis 370 siblings have 660 S o . 2 d 597 So. only indicated based on existed to 949 S o . 2 d 160 2 d 1016 that a D.B. separate among ( A l a . C i v . App. ( A l a . C i v . App. 1995); ( A l a . C i v . App. 1979). including a c k n o w l e d g e t h a t some c a s e s , wife, sisters, o f h e r argument, she c i t e s , v. K n i g h t , v. M a r d i s , Gandy v. Gandy, We the In support custody cited trial compelling court those may reasons, by separate but we are c o n v i n c e d t h a t t h o s e c a s e s do n o t a c c u r a t e l y s u m m a r i z e A l a b a m a law. may Rather, be our caselaw separated sufficient evidence serve the best more a c c u r a t e l y h o l d s t h a t i f the trial court i n the record, interests that of the c h i l d r e n 13 concludes, siblings based the s e p a r a t i o n at issue. on will See, e.g., 2080078 Mobley v. Mobley, 414 So. 2d 107 ( A l a . C i v . App. 1982); K e n n e d y v . K e n n e d y , 517 S o . 2 d 621 ( A l a . C i v . A p p . 1 9 8 7 ) ; s e e also Alverson So. 3d in part prior v. A l v e r s o n , , ( A l a . C i v . App. 2009) and c o n c u r r i n g Alabama We also [Ms. 2 0 8 0 0 3 5 , cases note that some 17, 2009] (Moore, i n the result concerning July J . , concurring i n part) separation of (canvassing siblings). a u t h o r i t y supports treating the separation of half siblings differently that the separation of full siblings. (Ala. C i v . App. 1996). cases, mere See Hannan v. Hannan, half siblings fact that they However, may we recognize be as c l o s e may not 676 S o . 2 d 1 3 4 0 , 1 3 4 2 as f u l l share the that, i n many siblings. same biological p a r e n t a g e d o e s n o t n e c e s s a r i l y mean t h a t h a l f s i b l i n g s d e v e l o p t h e same b o n d s a s f u l l do not rely on S w e n k a , 57 6 N.W. the strong each other siblings or that h a l f f o r support. See 2 d 6 1 5 , 618 ( I o w a C t . A p p . 1998 ) public policy of keeping siblings, together important benefit of maintaining the trauma particularly siblings, of d i v o r c e ) . i n these When families, siblings Marriage of (recognizing c h i l d r e n the and l e s s e n i n g r e s o l v i n g a custody days of b l e n d e d 14 ties do n o t including half following a divorce to provide familial The dispute, a trial court 2080078 s h o u l d not p e r f u n c t o r i l y separate half s i b l i n g s without s u f f i c i e n t c o n s i d e r a t i o n to the best at of the children issue. In this sisters case, for the later learned half indicated custody the to three years t h a t J . S . B . was The him D.B. not husband that had of her should full that actually agreed to 19 children months presented before little siblings might reveals no sister the evidence have even a f t e r "normal were s e p a r a t e d ; on to J.S.B. At what negative impact of had husband trial, impact wife, a 19-month s e p a r a t i o n , relationship" her husband's that arrangement The was and arrangement pursuant trial. as The D.B. wife the i n the l i v e w i t h the w i f e . as life. s i b l i n g but remain a living together J.S.B.'s testified J.S.B. lived should which the that, and w h i l e D.B. wife for J.S.B. first sibling. a interests giving continued the parties separating however, J.S.B. had with D.B. Thus, the separation on to the testified maintained the record the half siblings. The concluded trial court heard evidence t h a t s e p a r a t i n g the h a l f 15 from which i t could s i b l i n g s served their have best 2080078 interests. 2 aspect the we of affirm custody Because trial the of the wife court's trial several not award of court's challenged custody judgment as to the any other husband, i t relates to the J.S.B. II. The has wife next ways Child asserts Support that the trial court in establishing i t s child-support erred award to in the husband. "Under the w e l l - e s t a b l i s h e d ore t e n u s r u l e , the trial court's judgment i s presumed c o r r e c t ; this c o u r t w i l l not r e v e r s e the judgment absent a showing that the trial court's f i n d i n g s are p l a i n l y and p a l p a b l y wrong or t h a t the t r i a l c o u r t abused its d i s c r e t i o n . ... M o r e o v e r , m a t t e r s r e l a t i n g t o c h i l d support 'rest soundly within the trial court's discretion, and will n o t be d i s t u r b e d on appeal a b s e n t a s h o w i n g t h a t the r u l i n g i s not s u p p o r t e d by t h e e v i d e n c e and t h u s i s p l a i n l y and p a l p a b l y wrong. B o w e n v . B o w e n , 817 So. 2 d 7 1 7 , 718 (Ala. Civ. App. 2 0 01).'" Scott v. Scott, First, establishing the wife The court. 2d 577, asserts issue 579 that ( A l a . C i v . App. the arrearage trial arrearage, of D.B.'s based custody 16 upon was court w h e n no been p r e v i o u s l y e s t a b l i s h e d . child-support 2 So. a child-support o b l i g a t i o n had a 915 not She 2005). erred in child-support asserts retroactive before the that child trial 2080078 support, may parties' s e p a r a t i o n , w h e n no filed and not child be imposed support had dating back to the time of c o m p l a i n t f o r a d i v o r c e had not been sought or the been ordered. We disagree. In 2003), to P.Y.W. v. G.U.W., 858 So. 2d 265 this court recognized that a t r i a l order a parent to pay retroactive (Ala. Civ. c o u r t has child App. discretion support for p e r i o d a f t e r the parents' s e p a r a t i o n but before the f i l i n g a complaint recognized this right -115, had but for a divorce. that by that preexisted the 858 legislature So. 2d a t 267-68. had statutorily e n a c t i n g A l a . Code 1975, the those right t o award statutes. 858 §§ child 2d a t 267. court through support The court stated: " I t i s a b a s i c p r i n c i p l e of Alabama law t h a t a p a r e n t has a d u t y t o s u p p o r t h i s o r h e r minor c h i l d and t h a t t h i s d u t y of s u p p o r t i s a f u n d a m e n t a l r i g h t of a l l minor c h i l d r e n . S t a t e ex r e l . S h e l l h o u s e v. B e n t l e y , 666 S o . 2 d 5 1 7 , 518 ( A l a . C i v . A p p . 1995); E x p a r t e U n i v e r s i t y o f S o u t h A l a b a m a , 541 S o . 2d 535, 537 ( A l a . 1989). The Alabama Legislature, r e c o g n i z i n g t h i s duty, c r e a t e d a cause of action s p e c i f i c a l l y f o r r e t r o a c t i v e c h i l d s u p p o r t . See A l a . C o d e 1 9 7 5 , §§ 3 0 - 3 - 1 1 0 t h r o u g h - 1 1 5 . " E v e n b e f o r e §§ 3 0 - 3 - 1 1 0 t h r o u g h -115 became e f f e c t i v e i n M a r c h 1994, t h e A l a b a m a L e g i s l a t u r e had made i t c l e a r t h a t r e t r o a c t i v e c h i l d s u p p o r t i s 17 of recognized 30-3-110 retroactive So. The the 2080078 favored i n order t o ensure t h a t minor children r e c e i v e t h e s u p p o r t t h a t i s t h e i r due. S e c t i o n 2617-9(d), A l a . Code 1975, p r o v i d e d , and still p r o v i d e s , i n p e r t i n e n t p a r t , t h a t a c h i l d ' s mother may f i l e '[a] complaint f o r nonsupport of [the] child ... alleging sufficient facts that the d e f e n d a n t owes a d u t y o f s u p p o r t , p r o v i d e d , t h a t s u p p o r t payments have n o t been o r d e r e d p r e v i o u s l y p u r s u a n t t o a d e c r e e o f d i v o r c e . ' Moreover, § 26-17¬ 8, A l a . C o d e 1 9 7 5 , s p e c i f i c a l l y p r o v i d e d b e f o r e t h e e n a c t m e n t o f §§ 3 0 - 3 - 1 1 0 t h r o u g h - 1 1 5 , a n d s t i l l p r o v i d e s , t h a t a c o u r t may o r d e r a f a t h e r t o p a y r e t r o a c t i v e c h i l d s u p p o r t f o ra p e r i o d o f two y e a r s prior t o the f i l i n g of a complaint, or the b i r t h of the c h i l d , whichever i s t h e shorter time period. " I n t h e p r e s e n t c a s e , t h e m o t h e r a r g u e s t h a t §§ 30-3-110 through -115 'show an i n t e n t by the Legislature to bolster the rights o f minors t o [ c h i l d ] support which had p r e v i o u s l y been guaranteed b y e a r l i e r s t a t u t e s [ s u c h a s §§ 2 6 - 1 7 - 8 a n d 2 6 - 1 7 - 9 ] a n d t h e common l a w . ' We a g r e e . S e c t i o n 3 0 - 3 - 1 1 0 provides: "'There i s hereby created a civil a c t i o n t o e s t a b l i s h an o r d e r o f r e t r o a c t i v e s u p p o r t w h i c h may b e b r o u g h t a g a i n s t a n o n s u p p o r t i n g p a r e n t who h a s a d u t y t o s u p p o r t as t h e l e g a l p a r e n t o f a c h i l d o r c h i l d r e n but has f a i l e d t o p r o v i d e support. The a c t i o n may b e b r o u g h t b y t h e p a r e n t o r g u a r d i a n w i t h p h y s i c a l o r l e g a l c u s t o d y who i s p r o v i d i n g t h e a c t u a l care and support for t h e c h i l d o r may b e b r o u g h t b y t h e D e p a r t m e n t o f Human R e s o u r c e s p u r s u a n t t o t h e p r o v i s i o n s o f [ A l a . Code 1975,] S e c t i o n 38-10-1 e t s e q . An a c t i o n under this s e c t i o n can be brought o n l y i f s u p p o r t has not p r e v i o u s l y been o r d e r e d pursuant t o a 18 2080078 divorce or other a c t i o n other j u r i s d i c t i o n . ' "Section in this 30-3-114, A l a . Code 1975, or any provides: "'The order of retroactive support s h a l l b e a sum c e r t a i n judgment and may cover a l l periods in which the nonsupporting parent failed to provide support. For a l l time p e r i o d s i n which support i s requested, the court shall c o n s i d e r the needs of the c h i l d or c h i l d r e n and t h e a b i l i t y of t h e p a r e n t s t o r e s p o n d to t h o s e needs, and s h a l l d e t e r m i n e the amount o f s u p p o r t due f o r e a c h p e r i o d by a p p l i c a t i o n of the c h i l d support g u i d e l i n e s f o u n d i n R u l e 32 o f t h e A l a b a m a R u l e s o f Judicial Administration based upon the circumstances d u r i n g the time p e r i o d f o r w h i c h s u p p o r t i s s o u g h t . ... ' "Given the record presented, i n c l u d i n g the f a c t s d i s c u s s e d a b o v e , we s e e no b a s i s f o r t h e t r i a l c o u r t n o t t o h a v e made a r e t r o a c t i v e c h i l d - s u p p o r t a w a r d i n t h i s case. T h e r e i s no e v i d e n c e i n t h e r e c o r d i n d i c a t i n g t h a t t h e mother e v e r gave the father r e a s o n t o b e l i e v e t h a t s h e w o u l d h a v e no n e e d f o r the father's f i n a n c i a l assistance i n rearing the c h i l d , o r t h a t t h e f a t h e r e v e r r e l i e d on any such r e p r e s e n t a t i o n . The m o t h e r f i l e d h e r c o m p l a i n t l e s s t h a n a y e a r a f t e r t h e c h i l d ' s b i r t h and o n l y about 10 m o n t h s a f t e r t h e f a t h e r l e f t t h e m o t h e r a n d t h e child. T h e r e i s no e v i d e n c e e x p l a i n i n g t h e f a t h e r ' s f a i l u r e t o pay c h i l d s u p p o r t o r t e n d i n g t o i n d i c a t e t h a t i t w o u l d be i n e q u i t a b l e t o r e q u i r e h i m t o p a y c h i l d support r e t r o a c t i v e l y . " 858 So. 2d Thus, a t 267-68 the court (footnote omitted). in P.Y.W. recognized that, under the proper circumstances, retroactive c h i l d support i s recoverable 19 2080078 even f o r those a divorce. 1998) periods preceding C f . B r o w n v . B r o w n , 719 (awarding the for been divorce had divorce t e s t i f i e d t h a t he h a d pay c o u r t was in in § 30-3-114, for the after this the case, the sole support the divorce hearing. however, an App. one-year complaint husband f o r J.S.B. Thus, i n o r d e r i n g the wife in this case for (Ala. Civ. the this awarded recognized support wife, 2 d 228 but In support the of a complaint support within i t s discretion agree with arrearage in filed). provided retroactive child We So. hearing 19-month p e r i o d p r e c e d i n g trial filing retroactive child period preceding the the the to case. that must award for the be amount o f the As retroactive of reversed. child i s c a l c u l a t e d pursuant to the c h i l d - s u p p o r t g u i d e l i n e s effect for B e c a u s e we the period the c a n n o t d e t e r m i n e how in appropriate r e m a n d , we record we and reverse remand the aspect cause for court in of the is applied calculating trial the no the the court's further proceedings. court to apply the 20 awarded. because there trial guidelines that i n s t r u c t the t r i a l the is court a r r i v e d at amount and that child-support arrearage, judgment the support the t r i a l $5,000 c h i l d - s u p p o r t - a r r e a r a g e indication child On child-support 2080078 guidelines that retroactive The child wife calculation twice were support next of i s t o be asserts her including i n effect during that prospective an amount the Ala. R. trial Jud. court trial health insurance be added the shall be d i v i d e d between adjusted Child the gross 'basic income the in Support Guidelines wife's child-support health-insurance of agree. At the 32(B)(7)(a), cost percentages obligation' $264.33 was to indicated (Form C S - 4 2 ) . " of 3 a children in proportion o b l i g a t i o n , the premium the b e n e f i t s f o r the parents by of actual support in its cost We "[t]he child the form the premium. that shall which obligation i t s judgment, Rule provided for erred child-support premium to p r o v i d e to court a t t r i b u t a b l e to entered Admin., period awarded. the husband's monthly h e a l t h - i n s u r a n c e time that and their on the In c a l c u l a t i n g husband's monthly included in the parties' total child-support obligation; that total obligation was then income, wife's divided as by required monthly each by parent's Rule child-support percentage 32(B)(a)(7), o b l i g a t i o n of to share of the arrive at the Thus, the $551. R u l e 3 2 ( B ) was a m e n d e d e f f e c t i v e M a r c h 1, 2 0 0 9 . formerly Rule 32(B)(7)(a) i s now R u l e 3 2 ( B ) ( 7 ) ( d ) . 3 21 What was 2080078 trial court insurance properly included p r e m i u m when the husband's calculating the monthly wife's health- child-support obligation. In the divorce stated: "The cost health of trial W i f e s h a l l pay court insurance judgment, insurance properly premium for the minor the the an a d d i t i o n a l half health the The cost wife ordering her J.S.B.'s extent R. Jud. of next t o pay the asserts her legal Admin., established recognized Rule 32(A), also insurance that court child- erred p e r month f o r for in one- J.S.B. erred in as c h i l d s u p p o r t o n e - h a l f of the costs for She argues that the forth i n Rule 32, activities. obligation and that Ala. any caselaw parte i s set other or Bayliss, R. the the health- monthly trial $122 Because monthly wife's the court through i n Ex court trial extracurricular of child." conclude that the o r d e r i n g the w i f e t o pay of trial husband's calculating we the $122.00 p e r month, or o n e - h a l f included in support obligation, however, Jud. legal obligation must through l e g i s l a t i o n , as 550 2d So. 986 Admin., p r o v i d e s (Ala. be was 1989). that " [ t ] h e r e s h a l l be a r e b u t t a b l e p r e s u m p t i o n , i n any judicial or administrative proceeding for the establishment or m o d i f i c a t i o n of c h i l d support, t h a t t h e amount o f t h e award t h a t w o u l d r e s u l t f r o m t h e 22 Ala. 2080078 application of these guidelines i s the correct amount o f c h i l d s u p p o r t t o be awarded. A written finding on the record indicating that the a p p l i c a t i o n o f t h e g u i d e l i n e s w o u l d be u n j u s t or inappropriate shall be sufficient to rebut the p r e s u m p t i o n i f t h e f i n d i n g i s b a s e d upon: " ( i ) A f a i r , w r i t t e n agreement between t h e p a r t i e s e s t a b l i s h i n g a d i f f e r e n t amount and s t a t i n g t h e r e a s o n s t h e r e f o r ; o r " ( i i ) A determination by t h e c o u r t , b a s e d upon e v i d e n c e p r e s e n t e d i n c o u r t and stating the reasons therefor, that application of the guidelines would be manifestly unjust or inequitable." Thus, a l t h o u g h t h e amount o f c h i l d guidelines creates child support and, under discretion a p r e s u m p t i o n as t o t h e c o r r e c t t o be awarded, certain that circumstances, t o award c h i l d Additionally, support e s t a b l i s h e d by the Rule support 32(C)(4), presumption a trial outside Ala. amount o f i s rebuttable, court has the guidelines. R. Jud. Admin., provides: " I n a d d i t i o n t o t h e recommended c h i l d - s u p p o r t o r d e r , the court may make additional awards for extraordinary medical, dental, and educational expenses i f ( i ) t h e p a r t i e s have i n w r i t i n g agreed t o t h e s e awards o r ( i i ) t h e c o u r t , upon reviewing the e v i d e n c e , determines t h a t these awards a r e i n the b e s t i n t e r e s t o f t h e c h i l d r e n and s t a t e s i t s reasons f o r making these a d d i t i o n a l awards." 23 the 2080078 In this c a s e , h o w e v e r , no presumption final judgment guidelines final to c r e a t e d by presented to rebut guidelines, to indicate and that manifestly unjust judgment a l s o failed unsupported For the the trial to i n c l u d e the the r e c o r d and above-stated was c h i l d - s u p p o r t award, further language The necessary Therefore, requiring expenses we Next, reversal IRS. the the argues in i t s division $976.88. parties' that IRS aspect the trial cause for Debt the trial court erred to to IRS a $600 owed t o h e r and a p p l i e d i t t o t h e p a r t i e s ' debt she Thus, she debt to of the p a r t i e s ' a s s e r t s t h a t the argues, the debt. We, of the final however, retained the she p a i d more t h a n o n e - h a l f IRS c o u r t ' s judgment i n c o r r e c t l y the IRS remand the indebtedness Specifically, s t i m u l u s check of wife The we reverse proceedings. III. and the error. reasons, court's of inequitable. o n e - h a l f of J.S.B.'s e x t r a c u r r i c u l a r by the court's application or s u p p o r t an a w a r d u n d e r R u l e 3 2 ( C ) ( 4 ) . the w i f e t o pay is be was the failed would evidence and, consequently, the trial ordered her to share one-half find judgment. 24 no reversible error in of of this 2080078 "When t h e t r i a l c o u r t f a s h i o n s a p r o p e r t y division f o l l o w i n g the p r e s e n t a t i o n of ore tenus evidence, i t s j u d g m e n t as t o t h a t e v i d e n c e i s p r e s u m e d c o r r e c t on a p p e a l and 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 that the t r i a l court exceeded i t s d i s c r e t i o n or that its decision is plainly and palpably wrong. A p r o p e r t y d i v i s i o n i s r e q u i r e d t o be e q u i t a b l e , not equal, and a determination of what i s equitable r e s t s w i t h i n the broad d i s c r e t i o n of the trial court." S t o n e v. Stone, (Ala. [Ms. C i v . App. During the 2070861, 2009) trial, evidence regarding the payment of the debt. t h i s d e b t was, at best, that the parties received t h a t she a d i d not the IRS wife know i f s h e no was checks. establishing that debt extent, and the had Neither amount o f been paid neither party testimony the the and, IRS, regarding She that she her regarding testified had not government, regarding offered d e b t owed t o i f so, o f f e r e d any 25 , and e n t i t l e d t o r e c e i v e one. party the 3d documentary testimony federal husband a l s o o f f e r e d vague testimony stimulus no inconclusory. to from So. omitted). the wife's debt check 2009] submitted d e b t and vague and a 26, (citations In f a c t , owed stimulus June by The his receipt any the whom IRS, and of testimony whether to what documentary evidence to 2080078 establish such payments. Because 4 at the time of the trial, the e v i d e n c e e s t a b l i s h e d o n l y t h a t t h e p a r t i e s owed a d e b t to the IRS, of we that debt, ordering See on and the Beatty 2008) find ("'In appeal, we v. will not order So. that 991 reversal the 2d trial the 761, division court's cost 765 838 aspect the affirmatively Elliott v. Bud's T r u c k ( A l a . C i v . App. of the IV. Finally, So. e r r o r must be (quoting 837, reverse court's of judgment that (Ala. wife i n o r d e r i n g her trial court's Attorney's argues that t o pay 1995))). debt. Civ. f o r t h i s c o u r t t o c o n s i d e r an e r r o r that 656 trial equally share Beatty, record.'" affirm i n e q u i t y i n the p a r t i e s to the 2d no App. asserted demonstrated & Auto We, by Repair, therefore, judgment. Fees the trial court erred the husband's a t t o r n e y ' s to fees S u c h e v i d e n c e was a v a i l a b l e t o t h e w i f e , b u t s h e failed to o f f e r t h a t e v i d e n c e at the time of the h e a r i n g . The wife f i r s t p r e s e n t e d e v i d e n c e of her p u r p o r t e d payment of the IRS debt i n support of her postjudgment motion, which the trial court denied. A t r i a l c o u r t may, but i s not r e q u i r e d t o , accept evidence p r o f f e r e d i n support of a postjudgment motion. S e e , e . g . , G r e e n T r e e A c c e p t a n c e , I n c . v . B l a l o c k , 525 So. 2d 1 3 6 6 , 1 3 6 9 - 7 0 ( A l a . 1988) ( r e c o g n i z i n g t h a t "a t r i a l c o u r t has the discretion to consider a new legal argument in a p o s t - j u d g m e n t m o t i o n , b u t i s n o t r e q u i r e d t o do s o , " a n d t h a t "[w]e will reverse only i f the trial court abuses that discretion"). T h u s , t h e t r i a l c o u r t was w i t h i n i t s d i s c r e t i o n i n d e c l i n i n g to c o n s i d e r the w i f e ' s newly p r o f f e r e d evidence. 4 26 2080078 when no those evidence fees In 3d affirmed attorney's to the to the introduced Campbell So. as was as v. into judgment fees [Ms. or We amount of agree. 2009] 2009), a m a j o r i t y of t h i s court awarding attorney's 2070724, the 24, even though the amount o f Moore d i s s e n t e d , evidence. Campbell, ( A l a . C i v . App. a reasonableness Mrs. April Campbell 50% record contained no fees her. i n c u r r e d by of her evidence Judge stating: "The t r i a l c o u r t s i m p l y a w a r d e d t h e w i f e 5 0 % o f h e r f e e s w i t h o u t k n o w i n g t h e t o t a l amount o f t h e f e e s . Although our caselaw holds g e n e r a l l y t h a t i n d i v o r c e c a s e s a t r i a l c o u r t may award fees w i t h o u t t a k i n g e v i d e n c e as t o t h e r e a s o n a b l e n e s s o f t h e amount o f t h e f e e s , s e e B e n t o n v . K i n g , 934 So. 2 d 1 0 6 2 , 1069 ( A l a . C i v . App. 2005) ( c i t i n g Ex p a r t e James, 764 So. 2 d 5 5 7 , 560 ( A l a . 1999) (plurality opinion)), I have not been a b l e to f i n d a s i n g l e Alabama case, or a c a s e f r o m any o t h e r j u r i s d i c t i o n , i n w h i c h t h a t p r i n c i p l e has b e e n a p p l i e d t o a p e r c e n t a g e a w a r d , as o p p o s e d t o an a w a r d o f a s p e c i f i c dollar amount. L o g i c a l l y speaking, a court cannot determine whether 50% o f a t o t a l a t t o r n e y f e e i s a r e a s o n a b l e award without knowing the total amount of the fee, r e g a r d l e s s of whether reasonableness i s measured by evidence presented t o t h e c o u r t o r b a s e d on the c o u r t ' s own e x p e r i e n c e a n d i n s i g h t . We h a v e a p p r o v e d awards of a p e r c e n t a g e of a r e c o v e r y f o r the c l i e n t , i.e., a contingency-fee a w a r d , when t h e c o u r t had i n f o r m a t i o n r e g a r d i n g the customary nature of such an a w a r d , see B e n t o n , s u p r a , b u t t h a t a w a r d d i f f e r s materially f r o m an award of a p e r c e n t a g e of an unknown amount o f a c c r u e d attorney fees. A trial court i s vested with broad discretion i n determining t h e amount o f a t t o r n e y f e e s t o be awarded i n a 27 2080078 d i v o r c e a c t i o n , s e e M u r p h r e e v. M u r p h r e e , 579 So. 2 d 634, 637 ( A l a . C i v . A p p . 1 9 9 1 ) , b u t , i n my o p i n i o n , it exceeds that discretion when i t makes a p e r c e n t a g e award w i t h o u t k n o w i n g t h e t o t a l amount o f the fees." Campbell, So. 3d a t concurring (Moore, i n the result i n part, J . , concurring i n part, and d i s s e n t i n g i n p a r t ) . We now a g r e e w i t h J u d g e M o o r e ' s a n a l y s i s a n d h o l d t h a t a court may attorney's not order fees without of those fees amount. To one first party that pay another trial party's r e c e i v i n g e v i d e n c e o f t h e amount and then d e t e r m i n i n g the extent to 5 the reasonableness Campbell of that i s in conflict, i ti s overruled. In wife this to contained case, pay no the at the time husband's evidence husband d i d not provide attorney's fees until as the t r i a l t o t h e amount any e v i d e n c e after the ordered fees, attorney's court the of those fees. the record The as t o t h e amount o f h i s trial court had lost J u d g e B r y a n j o i n e d Judge Moore's w r i t i n g on a l l p o i n t s . Judge Bryan wrote s e p a r a t e l y r e g a r d i n g t h e a t t o r n e y - f e e i s s u e , s t a t i n g t h a t , i n a d d i t i o n t o t h e reasons expressed by Judge Moore, " t h e w i f e [had] n e i t h e r r e q u e s t e d attorney fees nor presented any evidence regarding her need for such assistance." Campbell, So. 3d a t (Bryan, J . , c o n c u r r i n g i n p a r t , c o n c u r r i n g i n t h e r e s u l t i n p a r t , and dissenting i n part). 5 28 2080078 jurisdiction possibly of the case. have amount, and Hence, determined that i t s judgment the t r i a l those as to fees this court were issue could not reasonable in i s due be to reversed. Conclusion We affirm the trial court's husband and i t s d i v i s i o n trial court's The appeal wife's We to the reverse the fees, request court's a n d we r e m a n d t h e c a u s e f o r f u r t h e r this opinion. f o r an award of attorney's fees on i s denied. I N PART; R E V E R S E D Thompson, Thomas, P . J . , and Bryan J . , concurs I N PART; AND and Moore, i n part REMANDED. J J . , concur. and concurs i n the result, writing. Pittman, part, custody of the m a r i t a l debt. consistent with AFFIRMED with of c h i l d - s u p p o r t c a l c u l a t i o n and the t r i a l award o f a t t o r n e y ' s proceedings award J . , concurs and d i s s e n t s i n part, i n part, with 29 concurs writing. i n the result i n 2080078 THOMAS, result. Judge, Although concurring I opinion, I opinion, which concur concur caselaw does reasons supporting i n the not determination. Mardis, Short, 494 So. requirement on See So. the guiding trial 90 Alverson court, the best v. , 597 the nor Part opinion I do App. 1986) any undue b u r d e n do I designed to i t as the of main main agree our [Ms. that compelling in a custody 2080035, July 2009); Mardis 1995); and . I do on either anything not Jensen see v. v. this parent or more t h a n a in i n t e r e s t o f t h e c h i l d r e n whose c u s t o d y i t 30 the the court decide. assist the the siblings ( A l a . C i v . App. see I reveal Alverson, (Ala. Civ. of in addressing not record of ( A l a . C i v . App. imposing principle determining must 2d that in the case. concurring aspects result separation 3d 2d as present a and a l l other i n the require So. 660 part i s t h a t p o r t i o n of award 2009] in only custody 17, in trial 2080078 PITTMAN, J u d g e , c o n c u r s i n p a r t , p a r t , and d i s s e n t s i n p a r t . I concur concur i n Parts i n the result overrules So. is as and to I I I of Part C a m p b e l l v. C a m p b e l l , 3d contrast II , concurs I. [Ms. i n the the As to Part 2009), I to the view of the per curiam opinion, trial-court appellate-review attorney-fee See, e.g. , W a l d i n g Civ. App. 2007) v. I IV, which 24, 2009] 2070724, A p r i l ( A l a . C i v . App. consistent with in opinion. main result principles believe, that Campbell applicable awards i n d o m e s t i c - r e l a t i o n s Walding, (affirming 983 trial So. 2d court's 1128, 1132 judgment Because I would p r e f e r not to place of micromanaging generally dissent Part fees). position a s e t t l e d area of t r i a l - c o u r t d i s c r e t i o n , Ex p a r t e from i n the (Ala. directing t o pay o n e - h a l f of w i f e ' s undetermined a t t o r n e y court James, 764 So. IV of the main 31 2d 557, opinion. 560 to cases. husband this in see ( A l a . 1999), I

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