Romaine Samples Scott III v. Catherine Grace Scott

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REL: 11/20/09 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 2080420 Romaine Samples S c o t t I I I v. C a t h e r i n e Grace Scott Appeal from J e f f e r s o n C i r c u i t Court (DR-01-1601.01) PER CURIAM. Romaine Samples S c o t t from a judgment III ("the f o r m e r husband") of the Jefferson Circuit Court 1 appeals ("the t r i a l A l l thejudges s e r v i n g 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 of t h e J e f f e r s o n C i r c u i t Court recused themselves from t h i s c a s e . The case was t h e r e f o r e a s s i g n e d t o a judge from t h e 1 2080420 c o u r t " ) , which g r a n t e d the former husband's p e t i t i o n to modify the p a r t i e s ' divorce be in j u d g m e n t , i n p a r t , and husband to contempt periodic alimony to C a t h e r i n e Grace as o r d e r e d i n t h e final Facts The 30, parties 2002. w h i c h was Pursuant in husband's the obligated amount death, remarriage, "the by law." Marshall District 2 ("the to by the trial parties. c o u r t on reached Section periodic $1,400 former each by 30-2-55, On alimony month wife's death, [former] wife's 2 pay former wife") judgment of the agreement t o pay of the c o n t e m p l a t e d i n [§] provided an Scott refusing former Procedural History divorced to willfully the the August parties, i n c o r p o r a t e d i n t o t h e i r d i v o r c e judgment, the h u s b a n d was wife divorce and were for found to the former the former former wife's until the commission former of those acts [ A l a . Code 1975,] o r as o t h e r w i s e April 30, 2008, the former husband Court. 30-2-55 p r o v i d e s , i n p e r t i n e n t part: "Any d e c r e e o f 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 c o u r t t o p r o v i d e f o r t h e t e r m i n a t i o n o f 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 spouse r e c e i v i n g such a l i m o n y has r e m a r r i e d o r t h a t such spouse i s l i v i n g o p e n l y 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 s e x . ... [N]o payments o f 2 2080420 filed a petition insofar as periodic to modify i t awarded alimony. The parties' former the the wife former husband divorce $1,400 judgment a month alleged that in there had been a m a t e r i a l change i n c i r c u m s t a n c e s s i n c e t h e e n t r y o f t h e divorce judgment, a s s e r t i n g t h a t the former w i f e ' s "increased had substantially" "significantly alleged that former wife had Code the former decreased." The h i s o b l i g a t i o n t o pay was due t o be "committed those acts husband's former terminated income husband periodic further alimony to because the former contemplated i n [§] had the wife 30-2-55, [ A l a . 1975]." On May 15, 2008, former husband's modify the p a r t i e s ' rule while income nisi. The the former petition divorce former wife to modify, denied forth i n the former her award of p e r i o d i c alimony requested, appeal, that the t r i a l husband's was among o t h e r alimony already reimbursed." filed a judgment, set further wife an a n s w e r to the counterpetition and a petition for a the m a t e r i a l a l l e g a t i o n s petition due things and t o be averred increased. not p e r t i n e n t to court h o l d the former husband i n received 3 to shall have to be that She this civil 2080420 and criminal pursuant On for summary 2, 2009, fact failure to pay periodic alimony judgment. judgment, of m a t e r i a l wife]." for to the divorce February a issue contempt the former husband arguing that as t h e r e was to the c o h a b i t a t i o n In support of h i s motion filed a motion "no genuine of the [former f o r a summary j u d g m e n t , the former husband a t t a c h e d the former w i f e ' s d e p o s i t i o n testimony and the affidavit of indicates that husband's summary-judgment The trial the the trial parties' court daughter. d i d not rule The 3 on record the former motion. court heard the f o l l o w i n g p e r t i n e n t evidence at a n o r e t e n u s h e a r i n g h e l d on F e b r u a r y 3, 2 0 0 9 . T h e testified that ("the alleged paramour") i n October wine together they had had at the a l l e g e d p a r a m o u r ' s home. H o w e v e r , s h e a l s o t e s t i f i e d t h a t she was The almost every sexual relations not she night. and met a male 2003 and She " e m o t i o n a l l y or that further that neighbor former w i f e she stated had sexually" they drank that spent involved the night with anyone. A c c o r d i n g t o her sworn a f f i d a v i t , the p a r t i e s ' daughter l i v e d w i t h t h e f o r m e r w i f e f r o m A u g u s t 2003 t h r o u g h M a r c h 2006, and a g a i n f r o m M a r c h 2007 t h r o u g h A u g u s t 2007, and she had p e r s o n a l knowledge of c e r t a i n a s p e c t s of a r e l a t i o n s h i p between t h e f o r m e r w i f e and t h e f o r m e r w i f e ' s n e i g h b o r . 3 4 2080420 former wife's paramour year, testimony had t r a v e l e d that they indicated that out-of-state had keys t o one she and t h e a l l e g e d together several another's homes, times that a the a l l e g e d paramour knew t h e s e c u r i t y code t o t h e g a r a g e d o o r a t the former alleged paramour testified together that had she former wife paid reimbursed and bills. holidays nights personal items alleged paramour or debts that kept home. T h e f o r m e r w i f e at spring o f 2008. The paramour shared no except paramour further on t h r e e meals on but that isolated testified, t h e same any o f t h e a l l e g e d she k e p t day. she She paramour's h a d done h e r no c l o t h i n g o r p a r a m o u r ' s home a n d t h a t t h e clothing or personal saw t h e a l l e g e d p a r a m o u r a t h e r home, the night She t h e a l l e g e d paramour occasions spent together. the former wife at the alleged a week and t h e a l s o s t a t e d t h a t t h e a l l e g e d paramour had She t e s t i f i e d on t h r e e wife a week. she had never p a i d laundry the former the alleged the alleged that days spent that on t h o s e o c c a s i o n s , stated six and any o f h e r b i l l s occasions; had home, two o r t h r e e The not wife's b u t , she s t a t e d , the alleged paramour's former admitted wife 5 items approximately she had n o t home that at her since the she and t h e 2080420 a l l e g e d paramour had d i s c u s s e d alleged paramour patterns" after had she § 30-2-55 changed was some served and t h a t she and t h e of with their the former p e t i t i o n t o m o d i f y . The f o r m e r w i f e t e s t i f i e d paramour had never The former payments to the stated that monthly she spent the night husband former used expenses an after the husband's that the alleged making in April equity and a t h e r home. stopped wife "habits 2008. line former periodic-alimony of The credit husband former wife t o meet her stopped making p e r i o d i c - a l i m o n y p a y m e n t s . The f o r m e r w i f e drew a p p r o x i m a t e l y $6,000 f r o m t h e e q u i t y l i n e 15, 2008, that she expenses. not and of c r e d i t 16, used had September money that 2008. The t o pay sometime between former her wife August testified college-education The f o r m e r w i f e a d m i t t e d t h a t t h e f o r m e r h u s b a n d was obligated t o pay her college-education expenses i n the d i v o r c e j u d g m e n t . The f o r m e r w i f e a l s o i n d i c a t e d t h a t s h e d r e w approximately October testified 22, $6,000 2008, from and November 18, line 2008. of credit The between former wife t h a t she u s e d a p p r o x i m a t e l y $4,800 o f t h a t money t o pay her c r e d i t - c a r d b i l l , since the equity w h i c h , she t e s t i f i e d , the former husband had stopped making 6 had increased periodic-alimony 2080420 payments to her i n A p r i l 2008. former gave The reasons husband for filing testimony the p e t i t i o n a w a r d o f p e r i o d i c a l i m o n y . He information from relationship between paramour. 5 The 4 the former to modify testified parties' the former husband setting the former that he h a d daughter wife stated that forth wife's received regarding and he the had his a alleged met the A review of a statement of the former wife's credit-card use r e v e a l s t h a t t h e f o r m e r w i f e p a i d $4,506.25 t o w a r d h e r a c c u m u l a t e d c r e d i t - c a r d d e b t i n O c t o b e r 2 0 0 8 , w h i c h was t h e t o t a l b a l a n c e o f h e r c r e d i t c a r d . I n A p r i l 2008, t h e b a l a n c e o n t h e f o r m e r w i f e ' s c r e d i t c a r d was $ 5 8 9 . 6 0 . 4 The former husband a t t a c h e d the a f f i d a v i t of the p a r t i e s ' d a u g h t e r t o t h e m o t i o n f o r a summary j u d g m e n t he f i l e d t h e d a y b e f o r e t h e f i n a l h e a r i n g i n t h i s m a t t e r . However, t h e p a r t i e s ' daughter d i d not t e s t i f y at the f i n a l hearing. The trial c o u r t heard the former husband's t e s t i m o n y r e g a r d i n g the s t a t e m e n t s made b y t h e p a r t i e s ' d a u g h t e r i n h e r a f f i d a v i t , n o t for the t r u t h of the matter asserted, but only to e s t a b l i s h the former husband's motive f o r f i l i n g the p e t i t i o n t o modify. S e e Q u e e n v . B e l c h e r , 888 S o . 2 d 4 7 2 , 477 ( A l a . 2 0 0 3 ) ( n o t i n g t h a t s t a t e m e n t s i n a f f i d a v i t s a r e g e n e r a l l y c o n s i d e r e d t o be i n a d m i s s i b l e h e a r s a y t h a t c a n n o t be o f f e r e d as substantive evidence at t r i a l ) . 5 The f o r m e r h u s b a n d ' s b r i e f on a p p e a l c o n t a i n s a s t a t e m e n t of f a c t s t h a t i n c l u d e s c e r t a i n f a c t s found only i n the former wife's d e p o s i t i o n t e s t i m o n y a n d a f a c t u a l summary o f t h e s t a t e m e n t s i n t h e p a r t i e s ' d a u g h t e r ' s a f f i d a v i t . The f o r m e r wife asks t h i s court t o s t r i k e those p o r t i o n s of the former husband's b r i e f t h a t i n c o r p o r a t e f a c t s not c o n t a i n e d i n the trial record, i . e . , f a c t s d e r i v e d from the former wife's d e p o s i t i o n t e s t i m o n y a n d t h e p a r t i e s ' d a u g h t e r ' s a f f i d a v i t . We 7 2080420 alleged paramour paramour was the at two apparently former husband had social escorting as a l e g a l s e c r e t a r y and than she was at the time had begun h a v i n g concerned stated that a f t e r he former wife's h e l d by that about his earning altered his law b e c a u s e he b e l i e v e d t h e new addressing The the issue. former husband approximately preceding f i n a l hearing disposable income had Further, divorced. ability. The more money He further m e t h o d was he husband t o m o d i f y he the that former paid escrow former husband paying gotten the account testified periodic alimony consistent with caselaw 6 hospitalized the wife. earning p a y m e n t i n t o an of alleged h e a l t h p r o b l e m s and f i r m . The method was petition periodic-alimony the former w i f e had parties f i l e d the his attorney's he the when former t h a t she t h a t he testified the l e a r n e d t h a t the a job did events testified five times that he had been in the two years i n t h i s m a t t e r . He stated that decreased because of h i s medical his bills. deny t h e m o t i o n t o s t r i k e ; however, t h i s c o u r t has considered o n l y t h e e v i d e n c e p r o p e r l y o f f e r e d t o and r e c e i v e d by the t r i a l c o u r t . See T h o m p s o n v . P a t t o n , 6 So. 3 d 1 1 2 9 , 1138 (Ala. 2008). The former husband i s a p r a c t i c i n g a t t o r n e y County. 6 8 in Jefferson 2080420 The former husband approximately had worked at the same three years preceding the f i n a l law firm h e a r i n g , a n d he testified t h a t h i s income had d e c r e a s e d i n those t h r e e In 2008, March foreclosure, h u s b a n d was It had was monthly to renting by Evidence hearing the wife's into former $23,000 indicated that y e a r l y income since the the former yearly approximately tax at the time wife saved of the f i n a l i n retirement at the time also parties' wife's of testified retirement hearing, in 2008 and 2009 $120,000 a y e a r . she had accounts. documents r e v e a l e d the parties' divorce $ 1 3 6 , 0 0 0 . The f o r m e r h u s b a n d t e s t i f i e d documents approximately former husband's income-tax income income The o f t h e d i v o r c e , s h e h a d h a d no $15,000 former approximately 2008 went a month. the former $90 a m o n t h . but that, The earned also years. h e a l t h - i n s u r a n c e c o s t h a d d e c r e a s e d f r o m $203 a month approximately his that residence of the f i n a l approximately at the time savings husband's a home f o r $ 9 0 0 undisputed approximately that, former and a t t h e time increased divorce. the for was $10,000 a that was that h i s month, or However, t h e former husband's indicated that his yearly income was $ 1 7 5 , 0 0 0 . The f o r m e r h u s b a n d e x p l a i n e d t h a t a n y 9 2080420 amount he profits." received over The f o r m e r $120,000 husband admitted $30,000 bonus f r o m h i s employer that he d i d n o t r e c e i v e The 2009, trial court was "distribution of t h a t he h a d r e c e i v e d a i n J a n u a r y 2009, b u t he s t a t e d a bonus e v e r y entered a a final month. judgment on F e b r u a r y 4, c o n t a i n i n g t h e f o l l o w i n g f i n d i n g s a n d c o n c l u s i o n s : (1) that the former wife's income h a d i n c r e a s e d s i n c e t h e e n t r y o f the p a r t i e s ' d i v o r c e judgment and t h a t , t h e r e f o r e , t h e former husband's periodic-alimony obligation s h o u l d be r e d u c e d t o $950 a m o n t h ; had u n i l a t e r a l l y wife i n April suspended 2008 the former (2) t h a t t h e f o r m e r those alimony (3) t h a t indicate t h a t " t h e f o r m e r w i f e was c o h a b i t a t i n g w i t h 2-55; was " n o c r e d i b l e e v i d e n c e s e x so as t o t r i g g e r i n bad f a i t h ; (5) t h a t made b y t h e f o r m e r husband made and caused i n good former w i f e ; $14,000, p l u s faith tending an e s c r o w a a member the petition to the periodic-alimony into financial account hardship payments were n o t to the (6) t h a t t h e f o r m e r h u s b a n d o w e d t h e f o r m e r interest, as a p e r i o d i c - a l i m o n y 10 to the a p p l i c a t i o n of § 30¬ (4) t h a t t h e f o r m e r h u s b a n d h a d b r o u g h t modify husband payments i n escrow; of t h e opposite wife a l l alimony payments t o t h e former and had h e l d there to arrearage; wife (7) 2080420 that the former intentionally wife, husband was r e f u s i n g t o pay as o r d e r e d s e n t e n c e d t o 50 be suspended arrearage, if the his days upon plus the entry motion p e r i o d i c alimony to the in jail by conduct a "contempt but payment interest, due the that of that the payments of the the husband] s h a l l balance of s a i d j a i l final former hearing [former at any from wife, April should would periodic-alimony days point order, and former sentence former w i f e ; b e c a m e m o r e t h a n 10 periodic-alimony verified for willfully (8) t h a t t h e f o r m e r h u s b a n d the former husband following contempt i n the p a r t i e s ' d i v o r c e judgment, 2008 t h r o u g h J a n u a r y 2009; be in and that, i n arrears in the upon t h e the (9) trial 2 years filing court in of a would to determine i f the conduct of the merit t h e i m p o s i t i o n o f any remaining sentence." Discussion On court appeal, erred obligation credible the former husband in failing to the evidence to first terminate former wife argues that the his because, he that the indicating 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 held that 11 trial periodic-alimony asserts, there former wife sex. This court was was has 2080420 " ' [ i ] t i s a question of fact f o r the t r i a l c o u r t t o d e t e r m i n e as t o w h e t h e r a former spouse i s living 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 i n order t o a u t h o r i z e a t e r m i n a t i o n o f p e r i o d i c a l i m o n y u n d e r § 30-2-55, Code o f A l a b a m a 1 9 7 5 . The b u r d e n o f p r o o f as t o that matter i s upon the party seeking r e l i e f under t h e code s e c t i o n . The t r i a l c o u r t ' s d e c i s i o n upon t h a t i s s u e w i l l n o t be r e v i s e d upon an a p p e a l unless, after considering a l l the evidence and t h e reasonable inferences therefrom, the t r i a l c o u r t was p a l p a b l y w r o n g . ' " ' K n i g h t v . K n i g h t , 500 S o . 2 d 1 1 1 3 , 1 1 1 5 ( A l a . C i v . A p p . 1 9 8 6 ) . ' [ C ] o h a b i t a t i o n r e q u i r e s some p e r m a n e n c y o f r e l a t i o n s h i p c o u p l e d w i t h more t h a n o c c a s i o n a l s e x u a l a c t i v i t y between t h e c o h a b i t a n t s . ' H i c k s v. H i c k s , 4 0 5 S o . 2 d 3 1 , 33 ( A l a . C i v . A p p . 1 9 8 1 ) ; s e e a l s o V a u g h n v . V a u g h n , 507 S o . 2 d 960 ( A l a . C i v . App. 1987). ... To e v a l u a t e t h e permanency o f a r e l a t i o n s h i p t o determine whether a former spouse 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 , t h i s c o u r t has c o n s i d e r e d whether t h e former spouse i s s h a r i n g a d w e l l i n g w i t h a member o f t h e o p p o s i t e sex; whether t h e former spouse has ceased t o date o t h e r members o f t h e o p p o s i t e s e x ; p a y m e n t o f t h e former spouse's creditors by a member of the o p p o s i t e sex; and t h e purchase o f c l o t h e s f o r t h e f o r m e r s p o u s e b y a member o f t h e o p p o s i t e s e x . K n i g h t v . K n i g h t , 500 S o . 2 d a t 1 1 1 5 . " McNatt v. McNatt, 908 So. 2d 944, 945-46 (Ala. C i v . App. 2005). Because findings, the ore tenus the t r i a l court's rule applies to the t r i a l court's judgment as t o whether t h e former w i f e was 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 12 sex w i t h i n 2080420 the meaning o f § 30-2-55 w i l l be a f f i r m e d b y t h i s under any credible (quoting reasonable evidence aspect to Transamerica of the support t h e judgment.'" before wife's with testimony i t s finding a member revealed i s Id. at 945 v. AmSouth Bank, review court had evidence t h a t t h e f o r m e r w i f e was n o t of the opposite that there After a careful we c o n c l u d e t h a t t h e t r i a l i t t o support cohabitating testimony, Commercial F i n . Corp. N.A., 608 S o . 2 d 3 7 5 , 378 ( A l a . 1 9 9 2 ) ) . of the evidence, court " ' i f , sex. The 7 she d i d n o t c o n s i d e r former herself e m o t i o n a l l y o r s e x u a l l y i n v o l v e d w i t h anyone, t h a t she and t h e a l l e g e d paramour m a i n t a i n e d and the alleged contributions to paramour one separate residences, did make any creditors. See another's not and t h a t she financial Snipes v. The former husband asks t h i s c o u r t t o " c o n s i d e r whether to a l l o w r e c i p i e n t s o f alimony t o enter i n t o r e l a t i o n s h i p s that f a l l well within the s p i r i t of cohabitation but allow them t o r e t a i n a l i m o n y b e c a u s e t h e y , through l a s t minute m a n i p u l a t i o n , s e e k t o make t h e r e l a t i o n s h i p a p p e a r t o b e l e s s p e r m a n e n t t h a n i t i s . " We b e l i e v e t h a t i t i s w e l l w i t h i n t h e sound d i s c r e t i o n of the t r i a l court to consider such a scenario i n making i t s judgment. Although this court i s d i s t u r b e d by t h e former w i f e ' s admission t h a t she and t h e a l l e g e d p a r a m o u r a d j u s t e d some o f t h e i r b e h a v i o r a f t e r she r e c e i v e d t h e former husband's p e t i t i o n t o modify t h e p a r t i e s ' d i v o r c e j u d g m e n t , we m u s t a s s u m e t h a t t h e t r i a l c o u r t h e a r d t h a t t e s t i m o n y a n d f u l l y c o n s i d e r e d i t when m a k i n g i t s f i n a l determination. 7 13 2080420 Snipes, 651 suggesting the We So. conclude met that h i s burden, permanency ( A l a . C i v . App. 1994) of relationship include and t h e s h a r i n g the t r i a l i n implicitly alleged 1 9 , 20 permanency same d w e l l i n g wrong 2d pursuant occupation of household that to § the former 30-2-55, of expenses."). c o u r t was n o t p l a i n l y finding ("Factors or palpably husband had not to establish some o f t h e r e l a t i o n s h i p between t h e former w i f e and t h e paramour or more than occasional sexual activity b e t w e e n t h e f o r m e r w i f e a n d t h e a l l e g e d p a r a m o u r . See Ex p a r t e W a r d , 782 S o . 2 d 1 2 8 5 , 1 2 8 7 ( A l a . 2 0 0 0 ) ; M c N a t t v . M c N a t t , So. 2d a t 946; and S a n d e r s (Ala. C i v . App. 1998). trial court's February We v. Burgard, therefore 4, 2009, 908 715 So. 2 d 8 0 8 , 811 affirm judgment that part finding of the that the f o r m e r w i f e was n o t 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 sex w i t h i n t h e meaning part of the t r i a l the former interest, The in o f § 30-2-55, a n d we a l s o a f f i r m c o u r t ' s F e b r u a r y 4, 2 0 0 9 , j u d g m e n t r e q u i r i n g husband t o pay the as a p e r i o d i c - a l i m o n y former wife $14, 000, former husband next argues t h a t t h e t r i a l t o the former wife from 14 plus arrearage. h o l d i n g t h a t h e was i n c o n t e m p t f o r f a i l i n g alimony that April 2008 court erred t o pay p e r i o d i c through January 2080420 2 0 0 9 . He a r g u e s t h a t he s h o u l d n o t have b e e n h e l d i n c o n t e m p t because he, i n good f a i t h , Sanders v. Burgard, supra, and p a i d t h e former w i f e ' s p e r i o d i c alimony into an e s c r o w relied on t h i s court's decision i n account h e l d by h i s a t t o r n e y pending d e t e r m i n a t i o n by t h e t r i a l c o u r t as t o whether was member cohabitating Sanders, this with court a of the former w i f e the opposite sex. In stated: "[W]e h a v e p r e v i o u s l y i n t e r p r e t e d § 3 0 - 2 - 5 5 t o mean that the o b l i g a t i o n t o pay p e r i o d i c alimony ceases on the date t h e spouse receiving alimony began c o h a b i t i n g . [Wood v . Wood,] 682 S o . 2 d [ 1 3 8 6 , ] 1 3 8 6 [(Ala. C i v . App. 1 9 9 6 ) ] . Yet, the legislature s p e c i f i c a l l y provided that p e r i o d i c alimony paid t o a c o h a b i t i n g o r r e m a r r i e d spouse does n o t have t o be r e p a i d . H o w e v e r , t h o s e who p a y p e r i o d i c a l i m o n y a r e not l e f t without options. For instance, i n this c a s e , S a n d e r s p a i d p e r i o d i c a l i m o n y i n t o an e s c r o w account pending the t r i a l court's final ruling. Because the court determined that Burgard was cohabiting, the periodic alimony paid into the a c c o u n t was r e t u r n e d t o S a n d e r s . I n a d d i t i o n , t h i s court has i n p r e v i o u s o p i n i o n s r e f u s e d t o r e q u i r e the p a y i n g spouse t o p a y p e r i o d i c a l i m o n y a r r e a r a g e s t h a t accrued d u r i n g t h e o t h e r spouse's remarriage or c o h a b i t a t i o n . S e e T i l l i s v . T i l l i s , 4 0 5 S o . 2 d 938 (Ala. C i v . App. 1981) (where h u s b a n d s t o p p e d p a y i n g a l i m o n y on d a t e o f w i f e ' s r e m a r r i a g e , he d i d n o t have t o r e p a y a l i m o n y due between d a t e o f r e m a r r i a g e and d a t e o f h i s f i l i n g p e t i t i o n , because obligation c e a s e d on d a t e o f r e m a r r i a g e ) ; s e e a l s o M u s g r o v e v . H a w k i n s , 513 So. 2 d 4 ( A l a . C i v . App. 1987) ( h o l d i n g t h a t t r i a l c o u r t e r r e d i n o r d e r i n g husband t o pay w i f e ' s m e d i c a l b i l l s i n c u r r e d between t h e date h e r c o h a b i t a t i o n began and t h e date t h e p e t i t i o n t o t e r m i n a t e was f i l e d , because h i s o b l i g a t i o n t o pay 15 a 2080420 c e a s e d on t h e d a t e t h e c o h a b i t a t i o n b e g a n ) . A l t h o u g h the paying spouse w i l l not be required to pay periodic alimony arrearages i f cohabitation is p r o v e n , we do n o t b e l i e v e t h a t i t i s w i s e f o r a paying spouse to simply stop paying p e r i o d i c alimony b a s e d on h i s o r h e r s u s p i c i o n o f t h e o t h e r s p o u s e ' s c o h a b i t a t i o n . Such a course of a c t i o n c o u l d l e a d t o a h o l d i n g of contempt, not to mention that the paying s p o u s e c o u l d owe a c o n s i d e r a b l e amount o f arrearage i f c o h a b i t a t i o n was not proven. Indeed, m a k i n g p a y m e n t s i n t o an e s c r o w a c c o u n t a p p e a r s t o b e the b e t t e r course f o r a person i n t h i s s i t u a t i o n . " 715 810-11 (emphasis added). "A d e t e r m i n a t i o n to So. 2d regarding contempt of court i s committed the at sound d i s c r e t i o n of the t r i a l unless the trial judgment of the as 960 to be 2d 646 On trial plainly So. Stack, court 712, So. appeal, presented court's at the the 51, the the wrong App. 56 of husband hearing contempt. not that payments faith i n escrow 16 Brown, Stack the support Conversely, i n bad v. so v. 1994)). argues did the evidence (quoting the c o u r t ' s f i n d i n g s t h a t the to modify periodic-alimony 2006) affirm 'unless Brown ( A l a . C i v . App. former final petition i s u n s u p p o r t e d by will or (Ala. Civ. argues that the t r i a l filed i t s discretion palpably 716 the finding court and 2d abused c o u r t , a n d we and i n bad evidence the trial former wife former husband t h a t he placed faith support 2080420 the trial court's and finding that intentionally failed and the former refused husband to ... "willfully pay alimony as ordered." However, a f t e r a review of the record, evidence to support the t r i a l husband final filed the hearing, petition the former court's to cannot finding modify husband we that the i n bad gave find faith. any former the reasons several At for f i l i n g the p e t i t i o n to modify, i n c l u d i n g his health condition, his was earning substantially the time the knowledge t h a t more income divorce, than and the she the had from experience, suspected relationship with could we have husband cannot been fact information record, former wife the that that former discern to this husband testified evidence wife payments he can that i n bad f i n d no the i n escrow altered 17 that i t s finding to modify court finding that any support the p e t i t i o n periodic-alimony and i n bad based on personal an ongoing a review of the trial that the the court former faith. evidence former parties' his had the a l l e g e d paramour. A f t e r r e l i e d on court's the of husband, daughter filed trial former parties' Furthermore, the at to support husband p l a c e d faith. h i s method of The the former paying the 2080420 periodic alimony consistent above, this with because caselaw court he addressing i n Sanders clearly escrow issue. endorsed method As 8 set was forth the payment t o m o d i f y an a w a r d o f p e r i o d i c a l i m o n y p u r s u a n t t o § 30-2-55 in the upon the possibility of filing a of of petition avoid account new alimony to an the the periodic order into believed a contempt finding. We in conclude that the t r i a l court exceeded i t s discretion h o l d i n g the former husband i n contempt because evidence to support the t r i a l court's finding t h e r e was that the former husband " w i l l f u l l y and i n t e n t i o n a l l y f a i l e d and r e f u s e d t o pay [periodic] alimony as ordered." Instead, no the evidence ... at The former w i f e argues t h a t the former husband d i d not p r o d u c e any e v i d e n c e a t t r i a l t o s u b s t a n t i a t e h i s c l a i m t h a t he b e g a n p a y i n g a l i m o n y i n t o e s c r o w a f t e r f i l i n g t h e p e t i t i o n to modify, e s p e c i a l l y i n l i g h t of the f a c t t h a t the former husband f i l e d m o t i o n s p r o se f o r two months f o l l o w i n g t h e filing of h i s p e t i t i o n t o m o d i f y and escrow account was p u r p o r t e d l y h e l d by h i s a t t o r n e y ' s law f i r m . However, t h e former w i f e never c h a l l e n g e d the former husband's f a i l u r e t o produce e v i d e n c e t o s h o w w h e n he first began making the p e r i o d i c - a l i m o n y payments i n t o escrow. In f a c t , there i s very l i t t l e testimony i n the r e c o r d r e g a r d i n g the escrow of the p e r i o d i c - a l i m o n y payments from A p r i l 2008 t h r o u g h January 2 0 0 9 . The f o r m e r h u s b a n d t e s t i f i e d t h a t t h e $ 1 , 400 a m o n t h t h a t was d u e t h e f o r m e r w i f e was p a i d i n t o an e s c r o w a c c o u n t h e l d by h i s a t t o r n e y ' s law f i r m . F u r t h e r , i n i t s f i n a l o r d e r , the t r i a l c o u r t found t h a t t h e former husband "ha[d] h e l d the [ p e r i o d i c ] alimony payments i n escrow." 8 18 2080420 the f i n a l h e a r i n g the clear making i n d i c a t e d t h a t the former husband, direction given by this court in Sanders, p e r i o d i c - a l i m o n y p a y m e n t s i n t o an e s c r o w filing a petition to modify the former following began account wife's after award of p e r i o d i c a l i m o n y b a s e d , i n p a r t , on t h e f o r m e r h u s b a n d ' s g o o d faith belief contemplated court's that the former i n § 30-2-55. F e b r u a r y 4, former husband 2009, i s ordered 2009, judgment h o l d i n g However, cannot to payments i n t o escrow. a financial payor the decision unilateral hardship spouse files that part i s reversed. that place a the his a petition finding trial husband's periodic-alimony r e c e i v i n g alimony. an 4, contempt. the p o t e n t i a l to to modify the i t s February former monthly a c t i o n has spouse in acts trial remand, t h e of former husband the of the order On portion endorse Such on committing judgment h o l d i n g to vacate we was Therefore, i n contempt court wife award cause When a of p e r i o d i c a l i m o n y b a s e d o n § 3 0 - 2 - 5 5 , we b e l i e v e t h e b e t t e r p r o c e d u r e i s for the payor subsequent the trial spouse to f i l i n g court to f i l e a motion, the p e t i t i o n to modify, c o n d u c t an e x p e d i t e d determine whether pendente t h e p a y o r s p o u s e may 19 i n conjunction place with requesting lite or that hearing to periodic-alimony 2080420 payments i n t o Finally, escrow. the former husband argues that the trial court e x c e e d e d i t s d i s c r e t i o n by f a i l i n g to terminate his periodic- alimony former wife the both obligation parties' to the financial b a s e d on change in circumstances. " ' I t i s w e l l e s t a b l i s h e d i n Alabama that the modification of an alimony p r o v i s i o n b a s e d upon changed c i r c u m s t a n c e s i s a matter t h a t r e s t s w i t h i n the circuit c o u r t ' s sound d i s c r e t i o n . Furthermore, the ore tenus standard i s a p p l i e d to the r u l i n g of the c i r c u i t court; thus, a presumption of c o r r e c t n e s s attaches to the r u l i n g and t h e r u l i n g 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 not supported by t h e e v i d e n c e and i s c l e a r l y an a b u s e o f t h e c o u r t ' s d i s c r e t i o n . Ex parte Millard, Ex parte Smith, 683 673 So. So. 2d 2d 1002, 420, 1003 421 ( A l a . 1996) (Ala. 1995)). " ' T h u s , when [ t h e Supreme] C o u r t or the Court of Civil Appeals reviews a circuit court's order, i t is not to s u b s t i t u t e i t s judgment of the f a c t s f o r t h a t o f t h e c i r c u i t c o u r t . Rea v. Rea, 599 So. 2 d 1206 ( A l a . C i v . A p p . 1 9 9 2 ) . I n s t e a d , [the a p p e l l a t e c o u r t ' s ] t a s k i s s i m p l y t o d e t e r m i n e i f t h e r e was s u f f i c i e n t evidence before the c i r c u i t court to support i t s d e c i s i o n against a charge of a r b i t r a r i n e s s and abuse of discretion. Peterman v. P e t e r m a n , 510 So. 2 d 822 (Ala. Civ. App. 1987).'" Id. ( q u o t i n g Ex parte Smith, 673 20 So. 2d at 422). (quoting 2080420 We conclude supports the that trial evidence court's presented to judgment w i f e ' s a w a r d o f p e r i o d i c a l i m o n y . The evidence indicating that the the trial the modifying court former former husband p r e s e n t e d former wife was earning a p p r o x i m a t e l y $23,000 a y e a r more t h a n she h a d b e e n e a r n i n g a t the time also of the produced earned time parties' evidence divorce. However, indicating that the the former former a p p r o x i m a t e l y $ 3 9 , 0 0 0 m o r e i n 2 0 0 8 t h a n he of the parties' divorce. The trial husband had court wife at could the have concluded t h a t that testimony, along w i t h the testimony of the former husband regarding his medical condition, supported a downward m o d i f i c a t i o n o f t h e f o r m e r husband's p e r i o d i c - a l i m o n y obligation The to the former "financially former husband wife. argues self-supporting that the former does not need and wife is alimony to s u s t a i n a l i f e s t y l e that i s at l e a s t equal or b e t t e r than which e x i s t e d d u r i n g the marriage." tenus and evidence r e g a r d i n g the l i f e s t y l e , as w e l l t o pay her trial as e v i d e n c e i n d i c a t i n g credit-card court heard former w i f e ' s income, w i f e h a d b e e n r e q u i r e d t o d r a w on order The bill 21 an e q u i t y after former of c r e d i t former ore expenses, that the line the that in husband 2080420 stopped making p e r i o d i c - a l i m o n y payments t o h e r i nA p r i l The trial court specifically suffered a financial hardship making p e r i o d i c - a l i m o n y in we April 2008. believe the the t r i a l former wife o r t h a t she maintained or than the status marriage would court's, a n d t h a t we w i l l 2d that was f o rthat " [ t ] o do s o w o u l d be t o r e w e i g h judgment periodic-alimony The insofar obligation former wife's AFFIRMED as i t m o d i f i e d t o the former request REVERSED P.J., and Pittman I N PART; because self- had enjoyed during f o r the t r i a l Foley, 864 S o . "an a p p e l l a t e court of the t r i a l court" the evidence, which we a f f i r m the t r i a l the former husband wife. f o rattorney's I N PART; wife status equal t o n o t do. See Ex p a r t e (holding that stopped financially a lifestyle Alabama l a w does n o t a l l o w " ) . T h e r e f o r e , court's judgment be t o s u b s t i t u t e o u r judgment 1094, 1099 ( A l a . 2003) wife had t o the former court's the parties may n o t s u b s t i t u t e i t s j u d g m e n t and the former when t h e f o r m e r h u s b a n d supporting better that payments d i r e c t l y To r e v e r s e that found 2008. fees AND i s denied. REMANDED WITH INSTRUCTIONS. Thompson, and Bryan, J J . , concur. Moore, J . ,c o n c u r s i n p a r t and d i s s e n t s i n p a r t as t ot h e r a t i o n a l e and concurs i n t h e r e s u l t , w i t h w r i t i n g . 22 2080420 Thomas, writing. J., concurs in part 23 and dissents in part, with 2080420 MOORE, J u d g e , c o n c u r r i n g i n p a r t a n d d i s s e n t i n g i n p a r t the r a t i o n a l e and c o n c u r r i n g i n t h e r e s u l t . I concur i n that part o f t h e main o p i n i o n affirming that refusing t o terminate the periodic- portion o f t h e judgment alimony o b l i g a t i o n o f Romaine Samples husband") Catherine opposite the App. on the sex. facts basis Grace S c o t t of the Scott case v. R u t l a n d , judgment based on i t s ("the f o r m e r cohabitation mirror almost exactly (Ala. C i v . court affirmed a factual of with a person of the 494 S o . 2 d 662 1986), another case i n which t h i s court's III alleged ("the f o r m e r w i f e " ) The f a c t s o f t h i s i n Rutland as t o determination trial that a s p o u s e who was r e c e i v i n g a l i m o n y w a s n o t c o h a b i t i n g w i t h h e r social and romantic In his brief t h a t he p r e s e n t e d cohabitation. former wife companion. to this sufficient Indeed, alone court, some would the former evidence t o support aspects have justified a finding a t one p o i n t i n t i m e , a sex. rule of the opposite applicable to this determination are supported o f whether case, However, our review the t r i a l by c r e d i b l e evidence. 24 under argues a finding of of the testimony former wife had a t l e a s t , member husband of the that cohabited with the ore tenus i s restricted court's the factual to a findings M c N a t t v . M c N a t t , 908 S o . 2080420 2d 944, does 945 not (Ala. Civ. permit this j u d g m e n t b a s e d on that So. 2d 272, opinion that 279 that even to factual find that the contempt. purged the judgment Although, himself of a l i m o n y he had as to this Nicholson, 845 So. into 785 by payment appeal); see a l s o Ex p a r t e contains no I is find agree ground the with had 899 former the been main cohabiting former the child the evidence reversing husband former former with moot. P a r m e r , 373 25 the together not with main o p i n i o n 2009, the paying past-due credible I wife holding by agree the commit r e v e r s i b l e e r r o r ( A l a . 2002) contempt Substantively, of I of the escrow, issue 2d and F e b r u a r y 10, contempt paid appeal on court's sex. a l s o concur i n that p a r t of on review E x p a r t e R.E.C., Hence, former opposite trial finding See d i d not the the of more s u b s t a n t i a l , e v i d e n c e 2004) . court standard reverse unavailing, trial of portion record to arguably (Ala. the a person I or argument failing with court That a contrary factual finding. husband's by 2005). a particular sufficient, supports App. husband wife the interest, his Gilbert v. See (appellant's purging support So. did 2 d 845 main in moot ( A l a . 1979) . opinion supporting not of that the the trial 2080420 court's factual determination that the former husband the cohabitation of the former wife the former bore wife the husband had committed court, the proving exclusively statements the on hearsay, was cohabiting he had based i f the the that former to c a r r i e d her burden cohabitation the I cannot The out-of-court agree suspected his personal former husband received that the former husband that based the that testified from the p a r t i e s ' former observations had by based on o n l y h e a r s a y t o f o r m h i s b e l i e f also this she of and h e r a l l e g e d paramour a t f a m i l y e v e n t s . even trial, In her b r i e f specifically, cohabiting. on At 9 alleged husband i n a d d i t i o n t o s t a t e m e n t s he daughter, wife that faith. proving of the p a r t i e s ' daughter. former wife that, argues former former husband r e l i e d the of contempt of c o u r t . former wife that burden i n bad alleged his wife the was former Nevertheless, allegation T h e m a i n o p i n i o n s t a t e s t h a t "we c a n n o t f i n d a n y e v i d e n c e to support the t r i a l court's f i n d i n g that the former husband f i l e d the p e t i t i o n to modify i n bad f a i t h . " So. 3d a t . A c t u a l l y , the t r i a l court d i d not f i n d that the former husband f i l e d the e n t i r e p e t i t i o n t o modify i n bad f a i t h . It found o n l y t h a t the former husband had a l l e g e d c o h a b i t a t i o n i n bad f a i t h . Hence, I b e l i e v e the main o p i n i o n i s o v e r l y b r o a d i n a d d r e s s i n g the good f a i t h of the former husband i n a l l e g i n g t h a t a l i m o n y s h o u l d be m o d i f i e d b a s e d on t h e c h a n g e d f i n a n c i a l circumstances of the p a r t i e s . 9 26 2080420 exclusively not the c o n s t i t u t e bad f a i t h . filing of firsthand his on t h e d a u g h t e r ' s a I n many c i v i l pleading, information statements, a party or other a l l e g a t i o n s have Ala. Code 1 9 7 5 , § 1 2 - 1 9 - 2 7 1 ( 1 ) the particular contained case, wife i n the affidavit would have Because there appears trial court because, husband trial court undisputed a finding t o be no o t h e r See Litigation of the In statements at t r i a l , statements erred of basis i n concluding i n bad cohabitation. for i t s finding, that the former faith. l i k e w i s e erred i n f i n d i n g that the former alimony testimony that substantial the hearsay many that o f t h e d a u g h t e r t h a t , as e l a b o r a t e d supported obviously had p a i d or purposes. i n her testimony confirmed to t o prove d o e s n o t mean (defining "without husband had a l l e g e d c o h a b i t a t i o n The evidence f o r vexatious f o r example, actually above, the access A l a . Code 1975, § 12-19-270 e t s e q . ) . o u t t o be r e l i a b l e former no as t h a t term i s used i n t h e Alabama Accountability Act, turned have certainly allegations are interposed this may a t the time of no s u b s t a n t i a l j u s t i f i c a t i o n the justification" r e l i a n c e does cases, admissible or her allegations, but that those such into shows t h a t 27 escrow i n bad faith. t h e former husband r e l i e d The on 2080420 a statement 811 c o n t a i n e d i n Sanders ( A l a . C i v . App. permission from 1998), the t r i a l v. B u r g a r d , when, court, without he an e s c r o w litigation. Sanders if pending The p a r t i e s making t h e outcome d i s p u t e whether the statement any find that i t i s sufficiently from implication that the former authoritative husband See 70A(a)(2)(D), Rule contempt" A l a . R. as t h e " w i l l f u l , person process, t o comply with order, rule, t h e main court committed C i v . P. continuing was failure acting "civil or refusal writ, of subpoena, by i t s n a t u r e i s s t i l l with"). opinion's conclusion that the trial r e v e r s i b l e e r r o r i n f i n d i n g the former husband contempt c o m p l e t e l y r e s o l v e s t h a t i s s u e , t h e m a j o r i t y modifies the directive requiring to i t s direction. (defining a court's lawful o r command t h a t of being complied Although in payments of the parties' a n d c o n t u m a c i o u s l y when he f o l l o w e d capable alimony made t h o s e willfully any receiving t h a t t h e f o r m e r h u s b a n d r e l i e d on i s d i c t u m , b u t , e v e n i t i s , I remove account first ceased payments t o t h e former w i f e and, i n s t e a d , into 715 So. 2 d 8 0 8 , a payor i n Sanders spouse to file by c r e a t i n g a motion a new procedure and t o r e c e i v e t h e approval o f the c o u r t b e f o r e paying alimony i n t o escrow. 28 today I do 2080420 not believe Section that procedure solves the dilemma at hand. 30-2-55, A l a . Code 1975, p r o v i d e s : "Any decree of divorce 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 c o u r t to p r o v i d e f o r t h e t e r m i n a t i o n o f 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 decree and proof t h a t t h e spouse r e c e i v i n g such alimony has remarried o r t h a t such spouse i s l i v i n g openly o r 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 . T h i s p r o v i s i o n s h a l l b e a p p l i c a b l e t o any p e r s o n g r a n t e d a decree o f d i v o r c e either prior to April 28, 1978, o r t h e r e a f t e r ; provided, however, that no p a y m e n t s of alimony a l r e a d y r e c e i v e d s h a l l have t o be reimbursed." (Emphasis parte last added.) Both Sanders, Ward, 782 So. 2 d 1 2 8 5 , 1288 ( A l a . 2 0 0 0 ) , line alimony court o f § 30-2-55 p r o h i b i t s made to a cohabiting exercise Thus, by denying lite, only to later a determine by g r a n t i n g that a member o f t h e court t h e r e c e i v i n g spouse t o r e t u r n t h e On t h e o t h e r h a n d , s h o u l d discretion trial t o escrow s e x w i t h i n t h e meaning o f § 30-2-55, t h e t r i a l w o u l d be p o w e r l e s s t o o r d e r funds. should a motion r e c e i v i n g spouse had been c o h a b i t i n g w i t h opposite state that the reimbursement o f payments o f spouse. i t s discretion alimony payments pendente the 715 So. 2 d a t 8 1 0 , a n d E x the t r i a l the motion, only court exercise i t s to later determine t h a t t h e r e c e i v i n g spouse had n o t been c o h a b i t i n g , t h e r e l e a s e of the escrow funds, even with 29 interest, may i n many cases 2080420 prove an inadequate undergone financial I n my o p i n i o n , protect fact, remedy to a hardship spouse who has i n the interim. the better s o l u t i o n , a n d one w h i c h a l l t h e p a r t i e s , w o u l d be t o h o l d that would § 30-2-55, i n d o e s n o t p r e v e n t r e i m b u r s e m e n t o f a l i m o n y p a y m e n t s made to a r e c e i v i n g spouse j u d i c i a l l y with receiving a member o f t h e o p p o s i t e allow an a l l e g e d l y sex. cohabiting alimony without i t being d e t e r m i n e d t o have That spouse placed cohabited construction t o continue i n escrow. to would receive I f the t r i a l court determines t h a t t h e r e c e i v i n g spouse has been c o h a b i t i n g , t h e trial court receiving may spouse made d u r i n g protect the payor t o reimburse the period spouse by ordering the periodic-alimony of cohabitation. the p a r t i e s would remain i n status spouse from any f i n a n c i a l I believe ordinary foregoing of § construction. 30-2-55 semicolon. statute, payments I f the t r i a l determines t h a t t h e r e c e i v i n g spouse has n o t been quo, s p a r i n g the court cohabiting, the receiving hardship. rules of punctuation The f i r s t i s separated In discussing o u r supreme c o u r t from clause the would support the i n the last second clause the use of a semicolon stated: 30 sentence by a i n another 2080420 "One o f t h e common u s e s of a semicolon i s to separate independent clauses c l o s e l y connected i n m e a n i n g . See J . McCrimmon, W r i t i n g W i t h A P u r p o s e , 4 0 9 - 1 0 ( 5 t h e d . 1 9 7 4 ) ; F. C r e w s , The R a n d o m H o u s e H a n d b o o k , 341 (2d e d . 1 9 7 7 ) . 'A s e m i c o l o n i s ... employed to separate independent elements, e s p e c i a l l y when t h e y a r e r e l a t e d a n d n o t j o i n e d b y a c o n j u n c t i o n . ' The A m e r i c a n H e r i t a g e D i c t i o n a r y o f the E n g l i s h Language (American H e r i t a g e Publishing Co. 1 9 6 9 ) . I t i s , t h e r e f o r e , l o g i c a l t o assume t h a t the l e g i s l a t u r e used a semicolon, rather than a p e r i o d , t o separate the t h i r d clause from the f i r s t and s e c o n d c l a u s e s o f t h e t h i r d s e n t e n c e b e c a u s e t h e subject matter of the t h i r d clause i s closely r e l a t e d t o t h e s u b j e c t m a t t e r o f t h e two p r e c e d i n g clauses." Saxon v. 1994). intended of that that of same that or § alimony received spouses sentence. The that would would April 28, that 631, relation be to the divorce 1978, and that d a t e w o u l d n o t be alimony of the legislature to as 634-35 ( A l a . clause apply intend, never 2d the second close d i d not a n d Ward, So. a before legislature former bears 30-2-55 after 646 logic, 30-2-55 on Sanders London, § entered The of Following sentence clause Lloyd's the payments reimbursable first obviously judgments payments of reimbursable. courts made last to after stated in cohabiting April 28, 1978. Of c o u r s e , because this court has t h e power i t i s o n e o f o u r own opinions. 31 to overrule However, Sanders this court 2080420 has no power to Alabama. C&S C i v . App. 1982) however, I Constr. s p o u s e was the last on even a and So. by in See 3d Ex parte I to can the already the husband's former after the court that the Hence, the i s not overruling d i c t a i n Ward, H o w e v e r , as to s t a t e m e n t i n Ward By I do I am not binding Sept. and 30, Sanders, believe i n the respectfully dissent we minority urge the affirmance of i t s position. i n the judgment r e s u l t as to reducing, but alimony husband payor a l i m o n y p a y m e n t s made 1071625, reconsider for paid even before indicates of a refund [Ms. only of with has not (Ala. actually M.D.C., authority. portion former court (Ala. 2009). I concur the facts a refund , Finally, that supreme spouse 789 of s t a t e m e n t i n Ward, dictum, which, though persuasive, point, supreme c o u r t our Court 788, of § 30-2-55 p r e v e n t s the c o n t r a d i c t i n g the that that r e c e i v i n g spouse. w o u l d e x c e e d our on review of the payor seeking court. 2009] 2d T h a t i s s u e was nothing cohabiting this So. line alimony a p p e a r s t o be 420 convinced the -- Supreme not periodic Ward the B a s e d on my cohabitation begins. in of v. M a r t i n , Co. decisions . am decided that any overrule obligation. that 32 the the not terminating, Although evidence shows I agree without 2080420 dispute the former alimony, the that see Peterman (Ala. C i v . App. supporting or her 1987) a trial that the receiving Rule 2 8 , A l a . R. where a court 510 court wife and on terminate ("We of become no selfhis authority that fact or yet so."); see 312 alimony would such would also v. alimony 251 the periodic-alimony 33 to be trial in necessarily Jones, even a i t s mandate Ala. ( r e t u r n t o employment by or termination that not Jones to thereafter argument authorize periodic See out that i s determined merely modify (1948) self-supporting. hasten to point periodic such ability his In f a c t , 2 d a t 823 power, the i s currently has not mandate r e d u c t i o n solely is income e q u a l s or exceeds husband c i t e s spouse 2d 310, her spouse 823 even t o do 36 S o . 822, that P. terminate 181, a former 2d our caselaw i n d i c a t e s App. recipient to So. See So. discretionary the that 510 self-supporting. self-supporting, court Peterman, without t o t e r m i n a t e a l i m o n y b a s e d on a f i n d i n g spouse receiving Peterman, former self-supporting r e t a i n s the d i s c r e t i o n to maintain alimony court the v. (holding the requires when i s now when h i s o r h e r t o t a l expenses), a trial wife 179, former "make b o t h e n d s m e e t " d i d of alimony). trial court obligation was By relying required based upon to the 2080420 evidence that husband has the former wife utterly failed i s s e l f - s u p p o r t i n g , the to exceeded i t s d i s c r e t i o n . 34 show that the trial former court THOMAS, J u d g e , c o n c u r r i n g Although I concur i n part and d i s s e n t i n g i n p a r t . i n a l lother aspects of the main opinion, I must r e s p e c t f u l l y d i s s e n t from t h a t p o r t i o n o f t h e opinion affirming husband's p e t i t i o n part, the t r i a l to terminate on t h e f o r m e r h u s b a n d ' s had been c o h a b i t a t i n g w i t h f o r m e r w i f e , who i s a l e g a l consulted both A l a . Code caselaw addressing the their the w h i c h was b a s e d , i n assertion that the former secretary, testified 1975, § former 30-2-55, to terminate former after she was alimony. to terminate wife's When of the involved with with She a l s o aspects the former alimony. testimony asked with The t h a t she had a n d some served wife sex. t h a t c o d e s e c t i o n when s h e was s e r v e d behavior inconsistent. sexually alimony, of t h a t she and h e r a l l e g e d paramour had changed husband's p e t i t i o n The denial a member o f t h e o p p o s i t e former husband's p e t i t i o n admitted of court's whether at trial s h e was was, at best, emotionally and the former wife t h e a l l e g e d paramour, r e s p o n d e d " y e s a n d n o " a n d s a i d t h a t s h e was n o t " e m o t i o n a l l y and s e x u a l l y i n v o l v e d w i t h testified that she was " e m o t i o n a l l y i n v o l v e d " w i t h h e r a l l e g e d p a r a m o u r . She also admitted paramour him being and admitted i n the past. anyone." "emotionally having She l a t e r attached" had a sexual to her alleged relationship with 2080420 Although they d i d not share expenses dwelling, App. see T a y l o r v. T a y l o r , 1989) permanency (indicating p a r a m o u r saw e a c h o t h e r together to visit regularly meals 2003 u n t i l those factors the former wife (Ala. Civ. suggest and t h e a l l e g e d f a m i l y members b o t h i n a n d o u t s i d e at least with each three other's nights t h e s p r i n g o f 2008. p e r week On t h e i r trips former wife testified that she and a t e from October together, sometimes trips Alabama, families, former w i f e and t h e a l l e g e d paramour shared expenses the some f i v e t o s i x d a y s a week, went on spent h o l i d a y s together i n t h e same 550 S o . 2 d 9 9 6 , 997 that of relationship), or l i v e the at times; paid f o r the a l l e g e d p a r a m o u r ' s m e a l s a n d t h a t he s o m e t i m e s p a i d f o r h e r s . The former alleged credit wife paramour card. keys t o each trial that home, as surgery, with The paid testified for their former other's wife well. knew and trips, reservations from 36 the alarm paramour on h i s have said at code twice the to her had knee t h e n i g h t i n t h e h o s p i t a l room t h e a l l e g e d paramour to some and the former w i f e the alleged the former wife stayed the other on and t h e a l l e g e d paramour residences, When that, lodging t h e a l l e g e d paramour him; both driven further and t h e former the hospital wife had f o r outpatient 2080420 procedures. wife's The emergency As paramour i n the main every night. She a l s o although admitted a t h e r home. daughter had been the retired present to the alleged wife's question; answer she former former together never spent asked paramour's evasive " i f that i n the the night whether 2004 when t h e f o r m e r a meal home together her wife and then f o r the night, and nonresponsive happened, with t h a t she together they had eaten was answered the night i n June wife t o e a t i n g meals y e t , when And, t h e a l l e g e d paramour former the She f u r t h e r a d m i t t e d she i n d i c a t e d t h a t together and opinion, t h e a l l e g e d paramour had spent past, as t h a t she and t h e a l l e g e d paramour drank wine the a l l e g e d paramour r e g u l a r l y . and i s listed contact. mentioned admitted almost alleged the to the y e s , she could have." As both noted above, statutory alimony. She the former law and said that caselaw she wife admitted regarding to consulting cohabitation and h e r a l l e g e d paramour and had d i s c u s s e d t h e i s s u e o f h e r alimony and t h a t they had d i s c u s s e d what law things s h e a n d he c o u l d regarding the termination and c o u l d of alimony. 37 n o t do, b a s e d on t h e The o n l y testimony 2080420 specifically alleged served i n d i c a t i n g what changes t h e former w i f e paramour with wife's made the petition admission paramour's to their that house relationship after to terminate she at times had her sexual paramour the sometime former 2008. I n my petition opinion, paramour t o change t h e c h a r a c t e r fear that an I would conclude admission paramour, before amounted other that her testified o f 2008; that wife had had some that the terminated. the former wife's with of sexual her testimony alleged they admittedly § 30-2-55. permanency e n g a g e d i n more t h a n o c c a s i o n a l i n May relationship out of made, Coupled with the evidence i n d i c a t i n g that the former wife paramour with h e r and h e r a l l e g e d relationship under alimony admitted of their t h e changes i n behavior to cohabitation the alleged s h e was s e r v e d compelled h e r a l i m o n y w o u l d be Thus, is alimony alleged The f o r m e r w i f e the former to terminate the terminate to terminate petition was to relationship with i n the spring husband's at the petition but not after. that she a l i m o n y was t h e f o r m e r showered before a l i m o n y was f i l e d , she had ended and t h e and h e r a l l e g e d relationship activity, and had s e e Ex parte W a r d , 782 S o . 2 d 1 2 8 5 , 1 2 9 7 ( A l a . 2 0 0 0 ) , I b e l i e v e t h e f o r m e r 38 2080420 wife's admission t h a t she changed her the former husband's p e t i t i o n the former the time the obligation court's wife was cohabiting with former terminated. judgment should husband behavior i n response compel a c o n c l u s i o n her sought have his I would, t h e r e f o r e , reverse insofar as i t that a l l e g e d paramour to declined to the trial terminate fact that f o r m e r w i f e was opposite 39 a member o f t h e at alimony f o r m e r h u s b a n d ' s a l i m o n y o b l i g a t i o n b a s e d on t h e cohabiting with to the the sex.

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