Robert Ford Burkett v. Anne Winkler Burkett
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2010-2011
2090587
Robert Ford B u r k e t t
v.
Anne Winkler B u r k e t t
Appeal from Madison C i r c u i t
(DR-07-351)
PITTMAN,
Judge.
Robert
Ford
Burkett
("thehusband")
j u d g m e n t d i v o r c i n g h i m f r o m Anne W i n k l e r
that,
among
property
Court
other
things,
divided
and a s s e t s , awarded p r i m a r y
appeals
Burkett
from
a
("the w i f e " )
the parties'
p h y s i c a l custody
marital
of the
2090587
parties'
and o r d e r e d t h e husband
to pay
c h i l d s u p p o r t and t o m a i n t a i n a $500,000 l i f e - i n s u r a n c e
policy
for
children
to the wife,
the b e n e f i t
of the
The
were
during
son,
parties
children.
married
i n 1 9 9 1 ; two
t h e m a r r i a g e : a d a u g h t e r , who
who
was
employed
born
as
throughout
an
the
i n 1998.
insurance
marriage;
The
agent
the
was
children
born
husband
and
an
were
i n 1994
had
evidence established
in
employed
wife
had
been
by
banker
that
his
$3,666.17
the Madison
County
C o m m i s s i o n f o r most o f t h e m a r r i a g e ; a t t h e t i m e o f t r i a l ,
w i f e was
s e r v i n g as t h e c o u n t y ' s e c o n o m i c - d e v e l o p m e n t
and had e a r n e d a m o n t h l y g r o s s income o f $5,235.43
$5,470.54
In
March
and
division
marital
2007,
physical
of
the
debts.
counterclaim
the
the
director
i n 2007 and
i n 2008.
among o t h e r t h i n g s ,
legal
a
self-
investment
$3,105.50 i n 2007 and
The
and
been
g r o s s m o n t h l y income had been
2008.
born
children,
the
filed
a
complaint
a divorce from the w i f e ,
custody
marital
The
husband
wife
i n w h i c h she
of
the
assets,
filed
an
an
an
also
physical
of
filed
custody
s u p p o r t , an e q u i t a b l e
2
joint
equitable
allocation
a n s w e r ; she
sought primary
an a w a r d o f c h i l d
an a w a r d o f
children,
and
seeking,
the
a
of
division
2090587
o f t h e m a r i t a l a s s e t s and
an
award
allocation
of
attorney
fees.
court
trial
instruct
the p a r t i e s to s p l i t
equally
A
during
the
pendente
instructed
pendency
the
of
requested
assess
investment
October
pendency
lite
the
of
order
the
was
litigation.
the
trial
value
of
the
the
in
a
on
seeking
a
contempt
judgment
a l l e g e d f a i l u r e to maintain
expenses
pendente
the
trial
the
p a r t i e s to
rata
court
basis.
lite.
modified
share
The
the
order
$1,437.08 m o n t h l y i n t o
the
who
market v a l u e "
and
wife
the
lite
i n s t r u c t e d the
checking
3
filed
husband
regarding
monthly household
a joint
for consideration
a hearing
pendente
and
master
t h e s t a t u s quo
Following
agency
to
a special
the
against
master
in
"fair
Subsequently,
wife
matter,
" f a i r v a l u e " of the husband's b u s i n e s s e s
trial.
the
the
the
the
divorce
that
during
2008,
insurance
a hearing
the
costs
2007
special
i n s t r u c t e d to
the
June
January
appointed
both
the
action.
was
at
determine
and
that
household
s t a t u s quo
husband's
court
the
entered
appoint
Following
trial
also requested
divorce
In
court
the
business.
2008,
wife
p a r t i e s to m a i n t a i n
that
the
The
of the m a r i t a l debts,
a
motion
for
household
i n March
order
by
expenses
husband
account,
to
his
2009,
ordering
on
a
pro
deposit
d i r e c t e d the
2090587
wife
to
deposit
$3,353.17
monthly
into
mandated t h a t a l l monthly b i l l s
be
required
of t h a t
that
The
accurate
divorce
October
1,
records
trial
2009.
was
the
same
account,
p a i d from that account,
a c c o u n t be
maintained.
c o n d u c t e d b e t w e e n S e p t e m b e r 29
During
that
ore
tenus
and
proceeding,
the
p a r t i e s , t h e c h i l d r e n ' s p a t e r n a l g r a n d m o t h e r , and
the
teenaged
McKinney,
daughter
testified.
vocational evaluator,
and Dr.
In
addition,
Joan K e r r ,
John
a child
and
parties'
a
psychologist,
testified.
D u r i n g the
experienced
he
into
that,
once each y e a r
temper
about
infancy.
hysterical
stated
the husband t e s t i f i e d
concerns
daughter's
fly
trial,
had
reportedly
stated
rages,
although
f o r the
become
could
began p l a n n i n g
He
first
reared
as
parties'
that
hitting
those
rages
part
not
tolerate
of
a Methodist
The
had
the
4
that
had
first
during
the
would
typically
throwing
objects;
occurred
only
about
marriage,
the
wife's
until,
tantrums
by
any
2005,
longer
husband s t a t e d t h a t
t h e w i f e was
and
wife
and
worse
her
to seek a d i v o r c e .
marriage
the
him
progressively
of h i s ongoing problems w i t h
been
the
t h a t he
she
the
fact
t h a t he
was
a member
of
he
and
one
had
the
2090587
Christian
Science
"strange"
faith.
Another
divorce
was
Church,
factor
the
with
the
been
abusive
in
the
wife's
daughter.
he
considered
husband's
to
decision
a
seek
to
be
a
allegedly deteriorating relationship
The
toward
which
husband
him
and
asserted
the
that
wife
had
throughout
daughter
the
the
m a r r i a g e ; h o w e v e r , he a d m i t t e d t h a t t h e w i f e h a d n e v e r i n j u r e d
him
physically.
school
The
problems
relationship
tolerate
husband
had
with
the
the arguments
been
contended
caused
wife.
He
that
by
deteriorating
that
he
not
the daughter
and
could
over
s c h o o l w o r k and c u r f e w s , and, b a s e d upon h i s b e l i e f
a better
changed
his
physical
The
for
relationship with
custody
the
request
daughter,
to
the
t h a t he
husband
seek
an
award
of
been
the p r i m a r y
had
orally
primary
custody of the c h i l d r e n .
wife
stated
that
she
had
the c h i l d r e n throughout the marriage.
t h a t she had been w o r r i e d
before
daughter's
her
stated
between the w i f e
the
finally
taking
recommended
by
thought
daughter
the
the
She
also
caregiver
testified
about the daughter f o r s e v e r a l
the
daughter
husband,
Dr.
might
have
5
to
Kerr.
a
child
psychologist
Initially,
attention
years
deficit
the
wife
disorder
2090587
("ADD"),
but
oppositional
she
learned
defiant
that
disorder
caused the daughter t o defy
in
school
because
stated that, although
loud
confrontations
that
problem
and t o f a i l
from
had
subjects
h e r homework.
The
she and t h e d a u g h t e r had engaged i n
i n the past,
Dr. Kerr's
suffered
That
not complete
t o do w h a t was e x p e c t e d
receiving
request
("ODD").
her teachers
she would
wife
learning
the daughter
help.
the daughter
i n school
The w i f e
she be a w a r d e d
primary
was
presently
a n d a t home
reasserted
after
at t r i a l her
p h y s i c a l custody
of the
children.
The
wife
testified
that
she had t r i e d
t o encourage the
h u s b a n d t o f i n d more l u c r a t i v e e m p l o y m e n t , b u t s h e s t a t e d
he
had r e s i s t e d .
divorce,
She n o t e d
she had l e a r n e d
more
than
that
h i s unwillingness
her.
than
of
She a c c u s e d
he c o u l d
admitted
failed
that
himself
from
the husband
expenses.
t o comply
discovery
h i s business,
the family
wife
the t r i a l
6
that
court's
his staff
disgusted
earning
less
i fnot a l l ,
testified,
cross-examination,
with
had
h e r t o pay most,
The
f o rthe
and she s t a t e d
of i n t e n t i o n a l l y
to force
during
during
the husband had p a i d
to support
i n order
the household
husband
had
he p a i d
that,
that
and t h e
the husband
pendente
lite
2090587
order
to pay
trial.
one-third
The
of
wife's
$23, 624.58
as
household
the
family's
documentation
reimbursement
expenses
was
to
living
expenses
before
that
the
husband
owed
for
not
paying
those
her
admitted
into
evidence
without
objection.
The
children's
paternal
during
t h e m a r r i a g e , she
had
school
and
nights
a
to
the
the
the
with
the
childhood.
occasions
when
her
attention
paternal
stated
wife
wife
fingernails
or
to
said
discipline
a
retired
on
the
d a u g h t e r and
schoolteacher,
the
from
grabbed
the
the
arm
been
that
to
the
daughter.
exerted
several
the
could
7
help
the
arm,
daughter's
The
a more
paternal
calming
s u g g e s t e d t h a t , b e c a u s e she
she
the
daughter's
daughter's
get
the
tempestuous
remembered
the
better
addition,
her
two
daughter
believed
she
g r a n d m o t h e r o p i n e d t h a t the h u s b a n d had
influence
In
dated back to
that
had
into
behavior.
stemmed
that
whole f a m i l y
although
she
that,
children after
g r a n d m o t h e r had
that
issues
She
the
that,
daughter's
personality
relationship
supper f o r the
stated
grandmother
daughter's
digging
wife,
control
paternal
early
She
testified
r e g u l a r l y kept the
often provided
week.
disobeyed
able
had
grandmother
husband
was
work
2090587
through
the
primary
daughter's
academic
daughter's
t e s t i m o n y was
of the husband's c o n t e n t i o n s
emotionally
the
ruler.
abused
wife
scratched
h e r arm
The
privileges
than
the
certain
completing
failing
almost
had
testified
her
corporal
had
privileges
school.
truly
i n school,
husband
that the wife
injured
received
that
had
light
and
but
spanked
when
she
related
had
only
her with
misbehaved
extracurricular activities
rather
made an
The
agreement
daughter
with
her
testified
to give
daughter
stated,
subjects.
disciplined
She
her,
and
at the time of t r i a l ,
was
that
regardless
The
daughter
l e s s s t r u c t u r e i f she
husband.
8
well
not
noted
was
her
still
also
she
the
husband
of whether
also
were
to l i v e
she
testified
a l t h o u g h she knew b o t h p a r e n t s l o v e d h e r , she w o u l d
more f r e e d o m
or
remove
punishment.
the
a
customarily
a l l of h e r homework and,
never
in
i f she d i d h e r homework and p e r f o r m e d
However,
several
mild
daughter
her,
the wife would
disobeyed his instructions.
that,
he
had p h y s i c a l l y and
the
w i t h her f i n g e r n a i l s
or r e s t r i c t
to
surprisingly
Essentially,
never
daughter
resort
that
her.
had
performed poorly
in
i f
p h y s i c a l custody of the c h i l d r e n .
The
that
problems
with
have
the
2090587
Dr.
had
Kerr,
been
the daughter's
hired
by
daughter before
wife
the wife
improve
ruled
asked
with
the
her grades
o u t ADD
intermittent
had
but had
defiance
of
a
Dr.
Kerr
daughter
rules,
aggressive
addition,
she
aggressively
In
her
often
toward,
reviewing
Dr.
for
the daughter's
exhibited
poor
daughter's
problems; Dr. Kerr
parenting
recommended
help
Kerr
of
that
the husband
the
The
her
daughter
Dr. Kerr
had
with
ODD
and
that
the
noted
cooperation,
hysterical
other
adults; in
denigrated,
two
and
and h e r
and
in
had
and
9
Kerr
the paternal
with
of
the
his refusal
had r e i n f o r c e d the
Dr.
years
continuously
dealing
that
acted
parents.
one-half
the husband
concluded
tendencies.
historically,
the
improve
poor
and
techniques
procedures
oppositional
treat
authority,
her younger b r o t h e r
noted
she
The d a u g h t e r h a d a h i s t o r y o f
verbally
Dr. Kerr
follow
to
her
i n school.
teachers
treatment,
that
and
the daughter
disregard
with
help
pattern
o u t b u r s t s , and temper t a n t r u m s .
being
to
disorder.
long-standing
diagnose
and
diagnosed
testified
h i s divorce complaint.
and p e r f o r m a n c e
explosive
daughter
to help
the husband f i l e d
specifically
relationship
counselor,
to
daughter's
testified
that,
grandmother
had
2090587
allowed
the daughter
to act out
and
t o engage
p h y s i c a l a g g r e s s i o n w i t h o u t any a t t e m p t
Kerr
together
support
concluded
with
the
ultimately
that,
the wife
daughter's
delayed
i f asked,
placed
that
the
t h a t she
McKinney
evaluate
noted
his
earning
had
inability
to
treatment
recovery.
would
and
program
Dr. K e r r
probably
work
request
to
had
opined
to
be
and w o u l d n o t g i v e h e r t h e
needed.
he
discipline
1
had
capability
been
of
50 y e a r s
hired
the
by
the wife
husband.
to
McKinney
o l d , t h a t he h a d e a r n e d
a
degree i n economics from Fordham U n i v e r s i t y , and t h a t
been
employed
insurance
h u s b a n d was
served
difficult.
o f t h e h u s b a n d b e c a u s e he w o u l d l e t h e r
t h a t t h e h u s b a n d was
master's
he
mental-health
stated that
the
more
to set appropriate boundaries
daughter
i n the custody
structure
husband's
the daughter's
do w h a t e v e r s h e w a n t e d
or
the
and
t o d i s c i p l i n e h e r , and
h a d t h e r e b y made t h e w i f e ' s p a r e n t i n g e f f o r t s
Dr.
in verbal
agency
i n the banking
i n 1991.
At
industry before
the
a l s o t h e s o l e o w n e r o f an
on t h e b o a r d
the husband's
of d i r e c t o r s
time
of
investment
of a l o c a l
bank.
opening
trial,
the
company
and
Based
upon
e d u c a t i o n and p r o f e s s i o n a l e x p e r i e n c e ,
McKinney
I n t e r e s t i n g l y , at t r i a l , the daughter a c t u a l l y
t h a t she w o u l d p r e f e r n o t t o l i v e w i t h e i t h e r p a r e n t .
1
10
opined
2090587
s t a t e d t h a t he c o u l d e a r n b e t w e e n $ 4 0 , 0 0 0 a n d
working
based
directly
on
the
for
a
husband's
major
years
insurance
company.
of e x p e r i e n c e
M c K i n n e y s t a t e d t h a t he w o u l d m o r e l i k e l y
range
the
of
$62,000
husband's
investment
could
to
$70,000 p e r
management
industries,
earn
between
$90,000
management p o s i t i o n
According
husband's
a
the
a g e n c y was
investment
owned
to
commercial
a
value
of
b u i l d i n g was
of
the
The
$520,000.
with
the
businesses
The
the
in
that
debt
( $ 5 2 0 , 000
- $ 1 3 9 , 000
be
one-half
building
divided
of
the
by
annually
valuation
of
value
the
in
paternal
a
^'^).
the
husband's
also
of
jointly
grandmother;
and had been
on
of
of h i s share
husband
owed
was
marital
11
and
husband
that
appraised
commercial
a p p r o x i m a t e l y $139,000; thus, the husband's
equity
awarded
value
fair
t h a t b u i l d i n g h o u s e d h i s two
at
master's
the
building
that
of
bank.
$170,000.
was
because
financial
$113,000
fair
$500 a n d
firm
and
a local
the
the
testified
special
businesses,
insurance
the
with
in
fact,
a s a l a r y i n the
Moreover,
experience
In
in that industry,
earn
year.
McKinney
$42,000 a n n u a l l y
share
approximately
$190,500
The
that
wife
interest
asked
i n those
she
assets.
2090587
The
had
wife
been
testified
appraised
approximately
for
sale.
property
at
$20,000
The
that, although
$178,000,
before
parties
i t
still
owed
about
The
wife
a l l o w e d t o buy t h e husband's i n t e r e s t
so
that
she
could
continue
needed
residence
repairs
of
i t c o u l d be p l a c e d on t h e m a r k e t
of t r i a l .
at the time
the m a r i t a l
$45,000
asked
on
that
i n the m a r i t a l
raising
the c h i l d r e n
that
she
be
residence
in
familiar
a
divorce
surroundings.
In
November
judgment
that
2009,
awarded
the
joint
trial
legal
the p a r t i e s but awarded p r i m a r y
awarded s t a n d a r d
and
pay
$660.
The
coverage
equally
to
w i f e was
monthly
share
expenses.
of the c h i l d r e n
support
to maintain
and t h e p a r t i e s
to
to the w i f e .
with the
i n the
children
amount
of
medical-insurance
were
instructed
to
any o f t h e c h i l d r e n ' s u n c o v e r e d h e a l t h - r e l a t e d
The h u s b a n d was
coverage of at l e a s t
beneficiaries
visitation
child
instructed
on t h e c h i l d r e n ,
custody
entered
p h y s i c a l custody
The h u s b a n d was
ordered
court
f o r as
ordered
$500,000
long
as
to maintain
life-insurance
listing
the c h i l d r e n
he
o b l i g a t e d t o pay
support.
12
was
as
primary
child
2090587
The
judgment
ordered
equity
her t o pay
interest
30
days.
i n both
of
$40,000
his interest
each
awarded
retirement
The
husband
opened
i n h i s own
parties
were
their
joint
life"
insurance
vehicle,
and
list
and
was
o f two
ordered
credit-card
of the
The
was
wife
party
specific
the
awarded
the
of h i s
commercial
was
individual
bank
names,
but
the
moneys
held
in
awarded
awarded
"whole-
one
the p a r t i e s '
was
accounts
in their
a
specific
debts,
indebtedness
on
motor
remaining
E a c h p a r t y was
credit-card
a l l the
to the
100%
various
invested
awarded
Each
to pay
in
a
ordered
and
two
each
other
accounts.
Both
a
was
and h o u s e h o l d i t e m s .
one-half
wife,
The h u s b a n d a n d t h e w i f e
divide
a c c o u n t and
boat.
and
his businesses'
equally
policies.
of p e r s o n a l
party
to
awarded
in their
husband
and
the husband
vehicles
pay
The
name
checking
four
to
a l l interest
ordered
f o r h i s share
was
h i s businesses
accounts.
to the
i n the residence
p r o p e r t y that housed h i s businesses.
were
residence
and o r d e r e d t h e husband t o e x e c u t e
deed c o n v e y i n g
within
the m a r i t a l
the husband
i n the residence,
warranty
wife
awarded
parties
hearing,
the
filed
trial
p o s t j u d g m e n t m o t i o n s , and,
court
amended
13
the
judgment
following
to
clarify
2090587
which
c r e d i t - c a r d debts
which
were
addition,
t o be
split
the husband
Kawasaki
four-wheel
instructed
obtaining
husband
a
property.
custody
The
children's
solely
the
the
and t h e w i f e
appeal,
residence
by
to hold
the
and
debt
was
The w i f e was
marital
i n h e r name
on
In
secured
challenges
by
the
$500,000 i n l i f e
insurance
that
child-
and
the
during the
minority.
determination
that
courts
was
based
we p r e s u m e t h e t r i a l
determination
i s
accorded
appeal.'"
Ex
parte
1994)(quoting
upon
court's
ore
decision i s correct:
"'A
court
Perkins,
646
"This
court's unique p o s i t i o n
So.
14
entered
of
upon
correctness
2d
46,
oral
on
47 ( A l a .
622 S o . 2 d 4 1 0 , 412 ( A l a .
presumption
to directly
child-custody
presented
presumption
v. P h i l l i p s ,
a
evidence
a
Phillips
App. 1 9 9 3 ) ) .
review
of the t r i a l
testimony
Civ.
vehicle,
and
the parties'
division,
appellate
custody
awarded
marital-property
to maintain
When
tenus,
the parties.
of marital property.
refinance
husband,
individually
between
as t o any r e m a i n i n g
award,
requirement
paid
was s p e c i f i c a l l y
loan
harmless
equally
items
to
new
t o be
all-terrain
awarded f o u r s p e c i f i c
also
were
i s based
on t h e
observe the witnesses
trial
and
2090587
to
assess
custody
judge
their
cases e s p e c i a l l y ,
i s of
2d
1029,
2d
631,
great
1032
633
The
the p e r c e p t i o n
summarizes
says,
daughter
expressed
problem
with
the
equally
probative
mental-health
in
his
supports
and
daughter's mental-health
d a u g h t e r had
Ex
had
been
issues.
He
So.
810
So.
court
the
wife
Fann,
to
this
underlying
contention
is
that
testimony
indicating
that
the
the
d a u g h t e r and
setting
academic
goals.
position
hears
the
evidence
courts
do
not
s i t in
presented
ore
tenus
hearing."
Ex
parte
of
that
out
husband's
simply
cause
the
a d e s i r e to l i v e w i t h the husband.
to d i s c i p l i n e
best
trial
402
also points
failure
the
child
t h a t the
parte
the
been
in
Williams,
his contention
had
we
v.
brief
issues
testimony,
'In
o f an a t t e n t i v e
Williams
1981)."
...
2001).
t h a t , he
the
credibility.
importance.'
(Ala.
abused
and
( A l a . C i v . App.
husband
testimony
had
demeanor
exacerbated
Rather
and
make
a
that
judgment
before
of
the
Bryowsky,
67 6
15
the
So.
husband's
the
wife
court
witnesses.
2d
in
1322,
--
is
i t
Appellate
evidence
court
in
conflicting
determination
disputed
trial
the
was
daughter's
"[t]he t r i a l
custody
observes
there
the
support
than belabor
acknowledge
to
to
by
The
that
a
1324
was
custody
(Ala.
2090587
1 996);
see
1994).
also
Factual
are w i t h i n the
v.
J.S.D.,
upon the
court
record
erred
custody
The
divided
831
of
in
the
Ex
parte
Perkins,
determinations
646
based
sound d i s c r e t i o n of the
So.
2d
620,
presented,
622
we
cannot
the
to
parties' marital
4 6,
47
trial
court.
App.
conclude
(Ala.
evidence
See
C.B.B.
2002).
Based
that
award
primary
trial
court
the
physical
inequitably
assets.
"The
t r i a l c o u r t i s a f f o r d e d a wide degree of
d i s c r e t i o n i n d i v i d i n g the m a r i t a l a s s e t s of
the
p a r t i e s u p o n d i v o r c e . M o o d y v . M o o d y , 641 So. 2d
818
(Ala.
C i v . App.
1994).
The o n l y l i m i t a t i o n on t h a t
discretion
i s that
the
division
of
property
be
e q u i t a b l e under the circumstances
of the p a r t i c u l a r
c a s e , and t h e t a s k o f d e t e r m i n i n g what i s e q u i t a b l e
f a l l s t o t h e t r i a l c o u r t . R o s s v . R o s s , 447 So.
2d
812
( A l a . C i v . App.
1 9 8 4 ) . T h i s c o u r t must c o n s i d e r
t h e i s s u e s o f p r o p e r t y d i v i s i o n and a l i m o n y t o g e t h e r
when r e v i e w i n g
the
d e c i s i o n of the
trial
court,
A l b e r t s o n v . A l b e r t s o n , 678 So. 2d 118,
120
(Ala.
Civ.
App.
1995),
and,
because
the
facts
and
circumstances
of each d i v o r c e case are
different,
t h i s c o u r t must a l s o c o n s i d e r the p a r t i c u l a r f a c t s
and c i r c u m s t a n c e s
of the case b e i n g r e v i e w e d . Murphy
v.
M u r p h y , 624
So.
2d
620 , 623
(Ala. Civ.
App.
1993).
In making the d i v i s i o n , the t r i a l c o u r t
may
consider
s e v e r a l f a c t o r s , i n c l u d i n g the p a r t i e s '
respective present
and
future earning capacities,
t h e i r age a n d h e a l t h , t h e i r c o n d u c t , t h e d u r a t i o n o f
t h e m a r r i a g e , and
the value
and
type of m a r i t a l
p r o p e r t y . L u t z v . L u t z , 485 So. 2d 1174
(Ala. Civ.
App. 1 9 8 6 ) .
The p r o p e r t y d i v i s i o n made b y t h e t r i a l
16
trial
wife.
husband a l s o a s s e r t s t h a t the
the
2d
conflicting
(Ala. Civ.
i t s determination
c h i l d r e n to
on
So.
2090587
court w i l l
n o t be s e t a s i d e
on a p p e a l
p a l p a b l e abuse o f t h a t d i s c r e t i o n . I d . "
Cantrell
2000);
v. C a n t r e l l ,
see a l s o
773 S o . 2 d 4 8 7 , 4 8 9 - 9 0
Ex p a r t e
Foley,
absent
a
( A l a . C i v . App.
864 S o . 2 d 1 0 9 4 , 1097 ( A l a .
2003).
Although
the husband
marital-property
statement
the
division
to
consider
property.
monetary
divorce
was
that
The
percentages
judgment;
numerous
husband
of
much
court
wife
less
than
contends
that
the
was a w a r d e d ,
to
wife
the property
she
trial
primary
wage
funds
assets.
expended
has
the
awarded
to perceive
overall
i n the
monetary
that the
and awarded t h e
sought.
was
dividing
The
husband
inequitable
because
by h i s c a l c u l a t i o n s , a p p r o x i m a t e l y
indicated that
earner
had
division
4/5 o f t h e m a r i t a l e s t a t e .
lengthy
the
what
court
when
of
a w a r d e d h i m m o r e t h a n he r e q u e s t e d
much
the
on t h e r e l a t i v e
p e r c e n t a g e s e a c h p a r t y r e c e i v e d , he f a i l s
trial
court's
note
the t r i a l
property
solely
we
factors
makes
marital
i n focusing
the t r i a l
erroneous,
i n C a n t r e l l to the e f f e c t that
discretion
marital
contends
However,
the wife
and had p r o v i d e d
by
In a d d i t i o n ,
the evidence
the p a r t i e s
the wife
17
had been
between
to
adduced
from the
the family's
2/3
acquire
3/4
a n d 3/4 o f
the m a r i t a l
evidence i n d i c a t i n g
2090587
that
the
husband
apparently
doing
defraying
the
had
so
in
household
Moreover,
the
i n the
paternal
grandmother,
equity
in
his
does
not
division
of
any
so
parties'
assets
the
equal
the
support
(using
the
Under
division
husband's
The
of
the
the
division.
to
asserts
"secure"
this
that
his
acquiring
l i f e - i n s u r a n c e coverage
accounts,
and
review
of
the
that
the
Neither
issue
the
trial
both
allocation
of
$250,113.55
to
that
nearly
cannot
conclude
i s without
child-support
i n the
retirement
assets
We
party
removing
presented,
property
marital
the
and
and
remaining
as
his
party's
wife
circumstances
of
owns w i t h
wife.
following
the
burden
contention
figures
the
him
We
court's
simple
other
ordering
2
to
the
husband's
contention
also
A
parties'
erroneous
husband
jointly
husband's
$245,619 t o
the
a l l of
retirement
favored
of
greater
himself,
wife.
awarded
accounts)
i s revealed:
an
the
a
the
personal
unfairly
retirement
considered
on
businesses.
portion
husband.
was
underpaid
place
expenses
his
two
assets
accounts,
to
c o m m e r c i a l b u i l d i n g he
numbers
requested
order
husband
interest
the
systematically
court
be
that
merit.
erred
in
obligation
by
amount of
$500,000.
2
n o t e t h a t t h e h u s b a n d does n o t a s s e r t t h a t t h e t r i a l
l i f e - i n s u r a n c e mandate i s an i m p r o p e r d e v i a t i o n f r o m
18
2090587
The
A l a b a m a Supreme C o u r t has
children
are
insurance
policies
an
order
n.4
commonly
as
(Ala. 1991).
insurance
d i s c r e t i o n of
So.
2d
1288
of
support
the
obligation
However,
the
obligations
has
to
and
that
the
total
will
be
enhanced
addition,
July
husband's
based
the
the
upon
court
had
a
App.
heard
f o r the
pre-
and,
child-support
the
usual
K i r k l a n d v.
of
life
183,
a
is
186
life
within
Kirkland,
assertion
be
evidence
of
not
and
the
obligation
his
total
than
tending
meeting
860
may
r e q u i r e m e n t s o f R u l e 3 2 ( A ) , A l a . R.
$61,000.
to
show
that
w e l l have
concluded
will
eventually
owe
interest.
In
age
intervening
considerations.
child-
financial
reach the
is
the
his
postjudgment
not
regarding
more
and
19
2d
to
2003).
husband
during
So.
children
the
younger c h i l d w i l l
2017,
"[m]inor
to maintain
i n his view,
family
that
by
minor
possibly
history
amount
of
court."
i s that,
592
a party
husband's
cannot
trial
husband
until
trial
requirement
that
beneficiaries
Whitten,
benefit
(Ala. Civ.
thrust
insurance
the
W h i t t e n v.
the
stated
a s p e c t of c h i l d s u p p o r t ' p u r s u a n t
p o l i c y f o r the
1283,
as
"Whether to o r d e r
the
The
designated
'an
of d i v o r c e . "
previously
upwardly
Moreover,
Jud.
of
majority
years,
the
modifiable
the
Admin.
husband
2090587
may
be r e q u i r e d t o p a y p o s t m i n o r i t y
the
c h i l d r e n reach
insurance
if
not
to secure
insurance
prevents
might
not
insurance
Although
the face
have
decided
policies
value
to
awarded
of those
policies;
difficult,
levy
a
similar
i n the judgment
not presented
cannot conclude
by
ordering
obligation
The
with
trial
addition,
attorney
fees
she
that
the
court's
husband
in
asks
the
present
we do n o t
that
the
awarded to the husband
Because
e r r o r as t o t h i s
court
to
policies,
the
issue,
committed r e v e r s i b l e
secure
his
child-support
i n l i f e - i n s u r a n c e coverage.
judgment
this
f o r defending
claims,
him
by t h e judgment.
record
the t r i a l
$500,000
the wife
to
i t is likely
of the p r e e x i s t i n g p o l i c i e s
husband has
which,
be
the record contains evidence of the
o r e x c e e d t h e amount o r d e r e d
error
life
a t a g e 58 may
of the p a r t i e s ' w h o l e - l i f e insurance
equal
we
we
existing
face value
the
payments
obtaining
and
r e q u i r e m e n t on t h e h u s b a n d , n o t h i n g
divorce.
have
those
of m a j o r i t y ,
after
t h e h u s b a n d f r o m n a m i n g t h e c h i l d r e n as b e n e f i c i a r i e s
the
value
age
support
impossible.
Although
on
the
educational
law
i s due
t o be
affirmed.
court
f o r an a w a r d
the t r i a l
court's
judgment
i s well
settled
regarding
20
In
o f $5,000 i n
(as t o
each
2090587
issue
raised).
on a p p e a l
The w i f e ' s r e q u e s t
i s granted
i n t h e amount
f o r an a t t o r n e y - f e e a w a r d
o f $2,500.
AFFIRMED.
Thompson,
Moore,
writing,
P . J . , a n d Thomas,
J . , concurs
which
Bryan,
i n part
J., joins.
21
J . , concur.
and
dissents
i n part,
with
2090587
MOORE, J u d g e , c o n c u r r i n g
I
concur
court's
with
judgment
the
to
majority's
the
p h y s i c a l custody of the
p a r t i e s ' property.
majority's
extent
insurance
amount
i t
affirmance
extent
that
i t
of
the
awarded
c h i l d r e n t o t h e w i f e and
not
I r e s p e c t f u l l y d i s s e n t , h o w e v e r , as t o
the
of
the
requires
less
than
trial
the
court's
husband
judgment
to
"maintain
$500, 000.00
with
the
the
life
parties'
insurance
whether
to
require
a parent
to
maintain
p o l i c y f o r the b e n e f i t of h i s [ o r h e r ]
sound d i s c r e t i o n of the t r i a l
G o e t s c h v. G o e t s c h , 990
So.
t h i s c o u r t has
supporting parents
2d 403,
to maintain
children w i l l
supporting
parent d i e s . "
842
Civ.
(Ala.
412
previously held,
children [ i s , ]
minor
minor
as t h e p r i m a r y b e n e f i c i a r i e s , f o r so
c h i l d r e n i s w i t h i n the
that
to
support i s payable hereunder."
"Generally,
of t h e i r
primary
i n s u r i n g h i s l i f e and p r o v i d i n g d e a t h b e n e f i t s i n an
l o n g as c h i l d
As
trial
the
children being designated
life
dissenting in part.
divided
affirmance
that
i n p a r t and
App.
( A l a . C i v . App.
insurance
support
J o r d a n v.
In
22
court."
2008) .
f o r the b e n e f i t
quite obviously,
1997).
minor
the reason f o r " r e q u i r i n g
life
receive
a
Jordan,
the
...
i n the
688
present
to
insure
event
So.
case,
2d
as
the
839,
the
2090587
husband
correctly points
out,
the
total
amount
of
s u p p o r t he w i l l be r e q u i r e d t o p a y u n d e r t h e d i v o r c e
is
$60,720;
3
however,
husband t o m a i n t a i n
the
divorce
judgment
child
judgment
requires
the
a l i f e - i n s u r a n c e p o l i c y on h i s l i f e i n t h e
amount o f $500,000, an amount more t h a n 8 t i m e s g r e a t e r
than
t h e t o t a l amount o f c h i l d s u p p o r t he i s r e q u i r e d t o p a y u n d e r
the d i v o r c e
judgment.
A l t h o u g h i n t e r e s t w o u l d a c c r u e on any
c h i l d - s u p p o r t payments
highly
improbable
$439,280.
the husband might f a i l
that
any
Further, although
accrued
t o make, i t i s
interest
would
total
t h e main o p i n i o n a s s e r t s t h a t t h e
h u s b a n d ' s c h i l d - s u p p o r t o b l i g a t i o n may be m o d i f i e d i n a f u t u r e
a c t i o n o r t h a t he may be r e q u i r e d t o p a y p o s t m i n o r i t y
support,
I c o n c l u d e t h a t t o r e q u i r e t h e h u s b a n d t o s e c u r e an o b l i g a t i o n
resulting
from a p o t e n t i a l judgment i n a f u t u r e a c t i o n
has not y e t been
trial
court
exceeded
Treusdell,
had
filed
i s beyond
considered
i t s discretion
that
speculative.
possibility,
i n doing
671 So. 2d 699, 701
so.
See
( A l a . C i v . App.
Even
i f the
i t would
Treusdell
1995)
that
have
v.
("[T]he
T h e h u s b a n d ' s c h i l d - s u p p o r t o b l i g a t i o n commenced on
December 1, 2009.
The y o u n g e r c h i l d w i l l r e a c h t h e age o f
m a j o r i t y on J u l y 16, 2017. Thus, t h e h u s b a n d w i l l be r e q u i r e d
t o make 92 m o n t h l y payments o f $660, w h i c h t o t a l $60,720.
3
23
2090587
matter
of c h i l d
that matter,
support
the court
i s d i s c r e t i o n a r y , and i n r u l i n g
must c o n s i d e r
t h e needs o f t h e
on
child
and t h e p a r e n t ' s p r e s e n t a b i l i t y t o meet t h o s e n e e d s , w i t h o u t
s p e c u l a t i o n r e g a r d i n g t h e f u t u r e . " ( e m p h a s i s a d d e d ) ) ; Tatum v.
Carrell,
897
So.
2d
j u d g m e n t where t h e r e
must be r e v e r s e d . " ) ;
268
( A l a . C i v . App.
313,
324
( A l a . C i v . App.
i s no e v i d e n c e , o t h e r
than
and G a z i p u r a v. G a z i p u r a ,
1994)
("The
2004)
("A
speculation,
652 So. 2d 266,
mere p o s s i b i l i t y
that
the
h u s b a n d may become u n e m p l o y e d i n t h e f u t u r e i s s p e c u l a t i v e and
should
n o t be e f f e c t i v e i n d e v i a t i n g f r o m t h e
[child-support]
guidelines.").
B a s e d on t h e f o r e g o i n g ,
disparity
between
the
I c o n c l u d e t h a t s u c h an e x t r e m e
husband's
actual
o b l i g a t i o n and t h e amount o f l i f e i n s u r a n c e
maintain
he i s r e q u i r e d t o
i n o r d e r t o s e c u r e t h a t o b l i g a t i o n i s an a b u s e o f t h e
trial
court's
trial
court's
discretion.
judgment
husband t o m a i n t a i n
life
child-support
Accordingly,
to the extent
a $500,000
J . , concurs.
24
that
i t requires
the
the
l i f e - i n s u r a n c e p o l i c y on h i s
f o r the b e n e f i t of the c h i l d r e n .
Bryan,
I would reverse
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