Kelli Faith Grocholski v. William Allen Grocholski

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REL: 08/05/2011 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 Reporter 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 SPECIAL TERM, 2011 2090851 Kelli Faith Grocholski v. William Allen Grocholski Appeal from F a y e t t e C i r c u i t Court (DR-08-103) PER CURIAM. Kelli Circuit Faith Grocholski Court's Grocholski estate. judgment ("the h u s b a n d " ) We a f f i r m i n p a r t ("the w i f e " ) divorcing two c h i l d r e n . h e r from the Fayette William Allen and d i v i d i n g the p a r t i e s ' m a r i t a l and reverse The p a r t i e s w e r e m a r r i e d have appeals i n part. on A u g u s t 17, 1988. The o l d e r child was b o r n The p a r t i e s of the wife's 2090851 previous marriage, c h i l d was born were adults and the husband of the p a r t i e s ' at the time of assets and The separated filed a complaint court conducted March 2010, trial, the d i v i s i o n a bench That i n January 2007, trial ore over tenus evidence and tended the 30, only of marital husband 2008. of documentary to show old at The two trial days evidence the in were following facts. husband, who was 63 years o w n e d a n d o p e r a t e d h i s own parties' marriage. 2008 had been $39,043. The The $65,949 law p r a c t i c e husband t e s t i f i e d and that the time of the i n F a y e t t e ; the the course of the t h a t h i s income f o r h i s income f o r 2009 had been w i f e d i s p u t e d the husband's t e s t i m o n y c o n c e r n i n g the husband's income, indicating that, "on a bad y e a r , [ t h e h u s b a n d ] p r o b a b l y made [ $ ] 2 0 0 , 0 0 0 . " the the the and course h u s b a n d h a d w o r k e d a s an a t t o r n e y t h r o u g h o u t to younger children Therefore, f o r a d i v o r c e on J u l y at which presented. The the Both of the trial. c o u r t was him; debts. parties pertinent marriage. the i s s u e t r i e d b e f o r e the t r i a l adopted husband's income was based lifestyle. 2 largely year, a Her on slow o p i n i o n as the parties' 2090851 The h u s b a n d ' s " S o c i a l S e c u r i t y S t a t e m e n t , " 2009, was s u b m i t t e d into evidence. That t h a t the husband's average "taxed Medicare to 2007 agreed that was that approximately was performed. Furthermore, paid i n cash The h u s b a n d both both parties t h a n was r e f l e c t e d i n of that indicated e a r n i n g s " f r o m 1997 parties f o r some testified document However, t h e h u s b a n d h a d more i n c o m e document. husband $33,000. d a t e d June 19, testified the legal that the work he he " d i d n ' t do a s g o o d a j o b as [ h e ] p r o b a b l y s h o u l d have, b u t [ t h a t h e ] d i d a b e t t e r job than i n the past," of keeping up w i t h t h e a m o u n t o f c a s h t h a t was c o m i n g i n t o h i s l a w f i r m . The h u s b a n d also in [ h e h a d ] done admitted h i spast Other practice, that t h e r e p r o b a b l y had been some inaccuracies tax returns. than occasionally the wife, working who w a s 44 y e a r s f o r t h e husband's o l d a t the time law of the t r i a l , h a d n o t w o r k e d o u t s i d e o f t h e home d u r i n g t h e c o u r s e o f the parties' marriage. had n o t wanted h e r t o work had honored t h a t marriage, master's The w i f e request. the wife degree from testified that t h e husband o u t s i d e o f t h e home a n d t h a t s h e During had obtained the course a the University 3 college of the parties' education of Alabama. and a The w i f e ' s 2090851 deposition indicated lifting be testimony, that some because of a so long as the stand for long periods trial, the wife deposition. for employment d u r i n g and The significant or wife back p a i n , " migraine pelvic "a had l o t of testified that that above-listed she lift she too had testified of her time "just "a stand It amount parcels for long undisputed of real of land, to at "sedated" had during not searched r e c e i v i n g "pain back p a i n , " l o t of The The for husband t e s t i f i e d testified wife issues," issues, pain." r e c e i v i n g treatment shots" "some u p p e r l o t of b l a d d e r great had chronic The each t h a t he of wife the thought t h a t she could periods. is and her However, much. been and could require a l o t of p e l v i c t h a t t h e w i f e c o u l d w o r k ; h o w e v e r , he not standing attending p h y s i c a l therapy. cause[] a ailments. trial, s e p a r a t i o n b e c a u s e she l e g cramps," was at b e l i e v e d she t h a t she "a l o t o f l o w e r h e a d a c h e s , and issues to that amounts t h a t she read d i s k her t h a t she the p a r t i e s ' " t r i g g e r p o i n t s " and testified but was employment d i d not testified her which herniated a b i l i t i e s are i m p a i r e d employed spent of that the personal parties property, retirement and 4 owned a substantial including brokerage multiple accounts, and 2090851 certificates of d e p o s i t worth time trial, of the sport-utility a 2000 Ford pickup also pickup a Sea-Doo E-GO with owned a boat a truck, 1978 a addition, the wife combined "estimated truck. a 16-foot and a automobile, Corvette Ford The John 1978 the Sequoia t r u c k , a 1997 pickup At Toyota Chevrolet watercraft, a cart, trailer, 2002 1978 pickup GMC personal golf a $350,000. M e r c e d e s Benz E320 a 2 0 0 0 C h e v r o l e t 1500 a 1998 tractor, parties a 1997 t r u c k , and owned along vehicle, F-150 automobile, 150 the approximately VIP parties Deere 950 powerboat "pull-behind" t r a i l e r . owned j e w e l r y , f i v e replacement pieces value" of F- of which In had $88,500. a The parties a p p a r e n t l y a c q u i r e d a l l the above-mentioned p r o p e r t y , whether real paying the cash. personal, The parties either through had no debt members of the i n h e r i t a n c e or associated with any by of property. The Club, that or parties where the were they owned a parties testified that annually. The would the "golf take parties parties also shed." one Fayette The County husband Country testified v a c a t i o n a n n u a l l y ; the would were take members multiple of a wife vacations booster club a s s o c i a t e d w i t h U n i v e r s i t y of Alabama a t h l e t i c s t h a t p e r m i t t e d 5 2090851 them to p u r c h a s e four Alabama games. football Although separated, the in both divorce filing the parties of husband the incurred of that she that that and she charged had medical husband separated credit until card he time the to since that, incurred f o r her one $64,785.89 at of h i s a Fowler charges. account separation. i n charges borrowed fees. credit the filed and an sons The The card wife that for monthly a from pay also filed could parties for The the living testified time the to testified $1,000 for a the divorce, expenses. 6 to She approximately h u s b a n d had with pharmacy. $86,000. funds of since Further, opened wife borrowed testified he had they husband f i l e d f o r a d i v o r c e had the a he of pendency testified had the p a r t i e s ' attorney's co-pays The wife used expenses the during husband the $4,684.63 the had debt at Bank of F a y e t t e . time t h a t the trial, debt to U n i v e r s i t y the husband $2,799.74 f o r g a s o l i n e purchase gasoline during time no wife, at C i t i z e n s testified From the had The from F o w l e r O i l C o m p a n y so also season t i c k e t s them i n c u r r e d for divorce O i l Company b i l l e d had of proceeding. "bank d e b t " The sets husband for divorce. the wife that parties had used a testified 2090851 that the monthly charges f o r the wife's approximately $1,000, testified that he h a d g i v e n cash week. per indicating testified that The he paid. the wife wife were husband The card also approximately introduced a budget $200 i n at trial h e r m o n t h l y e x p e n s e s were $7,379.91; t h e w i f e extensively a s t o how She stated per she a r r i v e d the p a r t i e s ' younger husband continue pay s h e was r e q u e s t i n g at that amount. month as a l i m o n y . The that which credit had been t o do s o . child paying was e n r o l l e d also and agreed indicated insurance while $5,000 i n c o l l e g e , and for his tuition The h u s b a n d f o r the c h i l d ' s health an a w a r d o f a t l e a s t that to he w o u l d he was e n r o l l e d i n college. The trial court entered 2010. Among o t h e r assets i n a manner s l i g h t l y the husband alimony. incurred things, to pay The t r i a l a the t r i a l i n h i s name debt she had i n c u r r e d since on 3, divided the m a r i t a l and i t o r d e r e d p e r month i n periodic t o C i t i z e n s Bank the wife and t h e t o pay t h e 86,000 the p a r t i e s ' separation, 7 May the husband to pay the debt was owed debt t o F o w l e r O i l , and i to r d e r e d judgment the wife, $1,500 ordered that court favoring the wife court divorce as w e l l 2090851 as the ordered debt owed to the the husband to pay college expenses attorney's The following and fees. The standard by an ore pharmacy. court also f o r a l l the p a r t i e s ' youngest son's to wife which pay The $10,000 trial toward the reviews a wife's appeals. this tenus proceeding court is well settled. "'When ore tenus evidence is presented, a presumption of correctness e x i s t s as t o t h e t r i a l c o u r t ' s f i n d i n g s on i s s u e s o f f a c t ; i t s j u d g m e n t b a s e d on t h e s e findings of f a c t w i l l not be disturbed unless i t i s c l e a r l y erroneous, without s u p p o r t i n g evidence, m a n i f e s t l y u n j u s t , or a g a i n s t the g r e a t weight of the evidence. J & M B a i l B o n d i n g Co. v . H a y e s , 748 So. 2 d 198 ( A l a . 1 9 9 9 ) ; G a s t o n v . Ames, 514 So. 2 d 877 (Ala. 1987).... H o w e v e r , when the t r i a l c o u r t i m p r o p e r l y a p p l i e s the law to [ t h e ] f a c t s , no p r e s u m p t i o n o f c o r r e c t n e s s e x i s t s as t o t h e t r i a l c o u r t ' s j u d g m e n t . A l l s t a t e I n s . Co. v . S k e l e t o n , 675 So. 2d 377 (Ala. 1996); Marvin's, Inc. v. Robertson, 60 8 So. 2d 391 ( A l a . 1992 ) ; G a s t o n , 514 So. 2 d a t 878; S m i t h v . S t y l e A d v e r t i s i n g , I n c . , 470 So. 2d 1194 (Ala. 1 9 8 5 ) ; L e a g u e v . M c D o n a l d , 355 So. 2d 695 (Ala. 1 978). "Questions of law are not subject to the ore tenus standard of review." Reed v. B o a r d of T r u s t e e s for Alabama State Univ., 778 So. 2d 7 91 , 793 n.2 (Ala. 2000). A trial court's conclusions on legal issues carry no p r e s u m p t i o n o f c o r r e c t n e s s on a p p e a l . Ex parte Cash, 624 So. 2d 576, 577 (Ala. 1993). This c o u r t reviews the a p p l i c a t i o n o f l a w t o f a c t s de n o v o . A l l s t a t e , 675 So. 8 judgment 2090851 2 d a t 379 ("[Where t h e f a c t s b e f o r e t h e t r i a l c o u r t a r e e s s e n t i a l l y u n d i s p u t e d and the c o n t r o v e r s y i n v o l v e s q u e s t i o n s of law for the court to consider, the [trial] c o u r t ' s j u d g m e n t c a r r i e s no p r e s u m p t i o n o f correctness.").'" Farmers I n s . Co. v . P r i c e - W i l l i a m s A s s o c . , 252, 254-55 v. Post, ( A l a . C i v . App. 2003) 831 S o . 2 d 6 2 2 , 6 2 7 - 2 8 The wife allowing her records. sound first to discretion, ruling clearly exceeded Rice, serve December a third-party carrier. third-party cellular-telephone privilege. order erred i n not court's not reverse the t r i a l Ocwen (citing a trial c o u r t has F e d . Bank, Home I n s . C o . v . ( A l a . 1991)). filed subpoena on The h u s b a n d records 2002)). the t r i a l Ex p a r t e ( A l a . 2003) subpoena of P r a t t v i l l e cellular-telephone issue unless the wife On F e b r u a r y allowing will i t s discretion." 2008, court are within Court on a d i s c o v e r y 585 S o . 2 d 8 5 9 , 862 telephone the this 872 S o . 2 d 8 1 0 , 813 In the t r i a l the husband's matters and (quoting C i t y ( A l a . C i v . App. that discover "Discovery court's FSB, argues I n c . , 873 S o . 2 d on 19, 2009, the objected the were a notice basis subject 9 husband's cellular- to the issuance that some of of the to attorney-client the t r i a l the t h i r d - p a r t y subpoena of intent to court t o be entered issued an to the 2090851 husband's c e l l u l a r - t e l e p h o n e c a r r i e r ; however, the t r i a l ordered that directly to the could review that the the cellular-telephone trial court the r e c o r d s husband privilege. The and so that the i d e n t i f y any contended were be delivered husband's counsel p a r t s of the records covered by attorney-client husband's c e l l u l a r - t e l e p h o n e records delivered to more one year after subpoena could be issued. declined to a l l o w than records the records because, for the husband's the telephone trial court the the w i f e the the trial At trial the court to were the -¬ that ordered not trial before trial, the trial court the c e l l u l a r - t e l e p h o n e stated, review were not day court to d i s c o v e r counsel records until court the relevant of the l a c k of records to any and time because issues in the case. Alabama "Discovery the recognizes a broad s h o u l d be p e r m i t t e d i n f o r m a t i o n sought w i l l i f there matters of the So. 2d t h a t w o u l d be lawsuit." 484, 485 Ex admissible parte (Ala. of i s any AMI 1991). 10 Discovery as The wife that discovery i s not evidence West A l a b a m a discovery. likelihood a i d the p a r t y s e e k i n g the p u r s u i t of h i s c l a i m or d e f e n s e . to right limited i n the Gen. argues in trial Hosp., 582 that the 2090851 telephone records were relevant to whether the husband had c o m m i t t e d a d u l t e r y a n d t h a t a d u l t e r y was an i s s u e i n t h e c a s e . However, t h e o n l y or testimony reference was interrogatories. trial relating a The to adultery single i n the wife's in d i d not offer wife question any t o any a l l e g e d adultery a filings set of testimony at of the husband or to any names o r t e l e p h o n e n u m b e r s o f a l l e g e d p a r a m o u r s . Thus, as the trial does n o t appear did court t o have not assert determined, been adultery an i s s u e any c l a i m s i n the case. of adultery because the wife d i d not provide issue trial court erred records when by The periodic trial i t determined declined to allow cellular-telephone wife next argues relating erred that the to the issues the wife and to the that the cellular- i n the case to discover the records. that the t r i a l a l i m o n y was i n s u f f i c i e n t . court the wife the husband, any t e s t i m o n y were n o t r e l e v a n t accordingly, husband's the Because o f a d u l t e r y b y t h e h u s b a n d , we c a n n o t c o n c l u d e telephone and, by t h e husband The w i f e i n i t s allocation court's award also argues of the p a r t i e s ' "An a w a r d o f a l i m o n y a n d t h e d i v i s i o n o f m a r i t a l property are considered together and a r e m a t t e r s w i t h i n t h e d i s c r e t i o n of t h e t r i a l c o u r t . C a r t e r v. C a r t e r , 934 S o . 2 d 40 6 ( A l a . C i v . A p p . 2 0 0 5 ) ( c i t i n g 11 of that debt. 2090851 Ex p a r t e D u r b i n , 818 So. 2d 4 0 4 , 408 (Ala. 2001)). Because those matters are i n t e r r e l a t e d , the e n t i r e j u d g m e n t m u s t be c o n s i d e r e d i n d e t e r m i n i n g w h e t h e r t h e t r i a l c o u r t e x c e e d e d i t s d i s c r e t i o n as t o e i t h e r issue. See [Harmon v.] H a r m o n , [928 So. 2d 295 (Ala. C i v . App. 2005)]. Furthermore, a property d i v i s i o n d o e s n o t h a v e t o be e q u a l , b u t i t m u s t be e q u i t a b l e , J . H . F . v . P . S . F . , 835 So. 2d 1024 (Ala. Civ. App. 2 0 0 2 ) , a n d i t m u s t be ' s u p p o r t e d b y the p a r t i c u l a r f a c t s o f t h e c a s e , ' Ex p a r t e E l l i o t t , 782 So. 2d 3 0 8 , 311 (Ala. 2000). The d e t e r m i n a t i o n o f what i s e q u i t a b l e i s a m a t t e r of d i s c r e t i o n f o r the t r i a l court. See C a r t e r , s u p r a . " Clements 2007). v. The determining Clements, trial a and the 308, 1128, 311 1129 With court during need of living the 383, for (Ala. Civ. and when dividing l e n g t h of the m a r r i a g e , the f u t u r e employment value, to App. s e v e r a l f a c t o r s when alimony and which marriage.'" type Ex the prospects of p r o p e r t y owned, p a r t i e s have the (quoting Nowell ( A l a . C i v . App. 390 consider i n c l u d i n g "'the ( A l a . 2000) respect 2d should the source, standard accustomed 2d So. h e a l t h of the p a r t i e s , of the p a r t i e s , and court party's marital property, age 990 become parte v. Elliott, Nowell, 782 474 So. So. 2d 1985)). to i t s award of p e r i o d i c alimony, the s t a t e d i n i t s judgment: " A t t r i a l , t h e H u s b a n d was 63 a n d t h e W i f e was 44. The W i f e d e s c r i b e d v a r i o u s h e a l t h c o n d i t i o n s that she stated interfered with her ability to become e m p l o y e d , b u t t h e e v i d e n c e shows t h a t she i s 12 trial 2090851 h i g h l y e d u c a t e d and i n t e l l i g e n t and can r e a s o n a b l y be e x p e c t e d t o o b t a i n g a i n f u l employment i n t h e future. She d i d n o t w o r k d u r i n g most of the m a r r i a g e , h o w e v e r , a n d p e r i o d i c a l i m o n y i s due t o be awarded. In view of the factors l i s t e d i n t h i s o r d e r as w e l l as o t h e r f a c t o r s e s t a b l i s h e d by t h e e v i d e n c e ( i n c l u d i n g b u t n o t l i m i t e d t o t h e income a n a l y s i s as p r e v i o u s l y n o t e d ) , t h e Husband s h a l l p a y the sum o f one thousand five hundred dollars ($1,500) i n p e r i o d i c a l i m o n y t o t h e W i f e e a c h month, w i t h e a c h payment due b y t h e 5 t h d a y o f e a c h month. W h i l e t h i s i s s u b s t a n t i a l l y l e s s t h a n t h e $5,000 t o $7,000 t h e W i f e s o u g h t , i t i s t h e a p p r o p r i a t e amount s u p p o r t e d by the e v i d e n c e p r e s e n t e d i n view o f the income e v i d e n c e . " The trial earlier trial court's analysis i n i t s judgment. court of the p a r t i e s ' In that part income appeared of the judgment, stated: "Through most o f t h e m a r r i a g e , t h e p a r t i e s appear t o have enjoyed a relatively affluent lifestyle. The o n l y i d e n t i f i e d s u b s t a n t i v e s o u r c e o f i n c o m e was f r o m t h e H u s b a n d ' s l a w p r a c t i c e . The e v i d e n c e a t t r i a l e s t a b l i s h e d t h a t the p r a c t i c e has o p e r a t e d p r i n c i p a l l y i n cash i n b o t h r e c e i p t s and e x p e n d i t u r e s w i t h t h e W i f e ' s knowledge and c o n s e n t . Throughout t h e m a r r i a g e , t h e Husband r o u t i n e l y l e f t c a s h a t h i s l a w o f f i c e f o r t h e W i f e t o p i c k up a n d spend. The H u s b a n d testified he r a r e l y bills c l i e n t s f o r s e r v i c e s , does n o t n e c e s s a r i l y m a i n t a i n r e c e i p t s , engages i n l i m i t e d bookkeeping activity, a n d c o u l d n o t e s t i m a t e how much c a s h was t a k e n i n o n an a n n u a l b a s i s . At t r i a l , the Wife guessed at the a m o u n t o f money s h e t h i n k s t h e H u s b a n d made b a s e d o n the l i f e s t y l e they l e d ; however, t h e c o u r t cannot make a n a w a r d o f a l i m o n y o r o t h e r d i v i s i o n b a s e d o n s p e c u l a t i o n and c o n j e c t u r e . The j o i n t t a x r e t u r n o f the parties (acknowledged and adopted by t h e Wife during the marriage) c o n t r a d i c t s the assertion that 13 the 2090851 m o r e money was r e c e i v e d . An a n a l y s i s o f t h e W i f e ' s T r i a l E x h i b i t 1 and o t h e r e x h i b i t s showed t h a t t h e Husband's r e p o r t e d average a n n u a l income f o r the y e a r s 1 9 9 7 - 2 0 0 9 (a 1 3 - y e a r p e r i o d ) was approximately $34,000. This i n c l u d e d a year (2004), however, w h e r e h i s r e p o r t e d i n c o m e was s e v e r a l t i m e s g r e a t e r than p r i o r or subsequent y e a r s . Excluding 2004 ( w h i c h c o u l d be c o n s i d e r e d an o u t l i e r ) , t h e r e p o r t e d income averaged a p p r o x i m a t e l y $26,000. Further, these amounts i n c l u d e s u b s t a n t i a l i n t e r e s t income each year from the investments that are being divided by this order. Therefore, the income r e p o r t e d b y t h e p a r t i e s c a n n o t be r e c o n c i l e d w i t h the Wife's guesses about the a c t u a l income, nor can the amounts j u s t i f y the e x p e n s e s b e i n g c l a i m e d by the Wife. "The H u s b a n d t e s t i f i e d t h a t t h e e c o n o m i c c l i m a t e i n t h e l o c a t i o n w h e r e he p r a c t i c e s h a d drastically changed f o r the worse i n the r e c e n t y e a r s . It is known t h a t the r e c e s s i o n has caused significant d e c r e a s e s i n i n c o m e f o r many a t t o r n e y s , c a u s i n g many to close their practices. The Husband further t e s t i f i e d t h a t h i s i n c o m e was g r e a t e r when he was able to o b t a i n p e r s o n a l i n j u r y cases i n p r i o r y e a r s . The Husband t e s t i f i e d that those c a s e s were not c o m i n g i n t o h i s o f f i c e b a s e d on a d v e r t i s i n g f r o m other firms. The e x p l a n a t i o n g i v e n b y t h e H u s b a n d a b o u t t h e d e c r e a s e i n i n c o m e was supported by the evidence. F u r t h e r , t h e H u s b a n d was 63 a t t h e t i m e of trial. Case law e s t a b l i s h e s t h a t the court c a n n o t make a s p o u s e w o r k m o r e t h a n he o r s h e l i k e l y w o u l d have w o r k e d had the p a r t i e s s t a y e d married. The e v i d e n c e does not e s t a b l i s h t h a t the Husband voluntarily reduced his income to avoid paying alimony or f o r purposes r e l a t e d to the d i v o r c e . " The with wife regard evidence. to As argues the that the husband's quoted above, trial court's i n c o m e was the 14 trial not court, finding of supported relying by on fact the trial 2090851 exhibits found including that the years preceding the husband's husband's the divorce apparent from our review that average was that Social annual listed S e c u r i t y s t a t e m e n t f o r t h e y e a r s 1997 adjusted returns gross income with testified that that s t a t e m e n t were during those $34,000. court, in arriving i n the husband's approach is as shown that the Social income-tax the himself in his Social Security of h i s true following income exchange trial: "Q. [Attorney f o r the wife:] I'm g o i n g t o s h o w y o u w h a t I h a v e m a r k e d a s D e f e n d a n t ' s E x h i b i t 1. C a n y o u i d e n t i f y t h a t d o c u m e n t f o r me? "A. I t says, 19th, 2009.' 'Your S o c i a l S e c u r i t y S t a t e m e n t , ' "Q. A l lright. And whose S o c i a l S e c u r i t y does t h a t i n d i c a t e t h a t i t ' s f o r ? "A. W i l l i a m A. "Q. And i s that 'June statement Grocholski. you? "A. W e l l , I h a v e a s o n W i l l i a m A., mine. Yes, s i r . 15 The husband reflection by at t o 2007 t o t h e h u s b a n d ' s contained n o t an a c c u r a t e 13 It is and d i v i d e d t h a t number by 13. t h e amounts years, f o r the as r e f l e c t e d i n h i s f e d e r a l f o r 2008 and 2009 problem statement, income approximately the t r i a l f i g u r e , added t h e amounts Security b u t I assume i t ' s at 2090851 "Q. A n d t h i s i s a l i s t 2007; i s t h a t c o r r e c t ? "A. I don't "[Attorney Your COURT: understand Social income from Security -¬ f o rthe husband]: 1962 t o Object to form. He a s k e d i f t h a t was Honor. "THE of your On t h e b a s i s "[Attorney f o r thehusband]: his taxable income. o f -¬ Or how e x a c t l y d i d you phrase it? "[Attorney f o r the wife]: I f t h i s i s h i s income f o r taxed Social Security earnings. "[Attorney f o r the husband]: O k a y. It ' s yo u r taxed Social Security earnings or your taxed Medicare earnings. I t w o u l d n ' t be a l l e a r n i n g s . "[Attorney f o rthe wife]: Right. "A. I don't understand these records. I don't understand Social Security procedures. For i n s t a n c e , i n -- when I was 1 5 y e a r s o l d i n 1 9 6 2 , I d o n ' t t h i n k I f i l e d an i n c o m e tax return. Then t h e r e a r e p e r i o d s o f t i m e I s e e h e r e -- I d o n ' t -¬ these c a n ' t b e my incomes, because there were p e r i o d s when I made m o r e t h a n t h a t . T h e r e a r e -- I know when I'd g e t a check -- a g a i n , I don't understand the process. When I ' d g e t a check t h r o u g h t h e o f f i c e when I was w i t h a p a r t n e r , I ' d g e t a w e e k l y d r a w a n d a -- h a d a F I C A [(Federal Insurance Contributions A c t ) ] . And I t h i n k t h a t ' s w h a t t h i s i s , m a y b e , w h a t e v e r F I C A -- a n y w a y , a n d a f e d e r a l a n d a s t a t e d e d u c t i o n . B u t t h e n we w o u l d do a disbursement f o r , let's s a y -- I t h i n k s h e p r e s e n t e d i n o n e o f h e r r e s p o n s e s we h a d a $ 3 0 0 , 0 0 0 16 2090851 case. W e l l , a l l we g o t on t h a t was a 1099. I d i d n ' t g e t any F I C A t a k e n out o f i t and I d i d n ' t g e t any S o c i a l S e c u r i t y o r s t a t e and f e d e r a l t a x e s out o f i t . So I d o n ' t know how t h a t would work i n t o this operation. But I don't t h i n k i t would be r e f l e c t e d i n here. "Q. Okay. "A. Now, I d o n ' t know, b u t t h a t ' s my understanding. "Q. Okay. So y o u r i n c o m e w o u l d be g r e a t e r than what's r e f l e c t e d i n the S o c i a l S e c u r i t y s t a t e m e n t ? "A. T h a t ' s my u n d e r s t a n d i n g o f i t . A g a i n , I'm not a Social Security expert. B u t I know t h a t some o f t h e s e d o n ' t a p p e a r t o be t h e i n c o m e t h a t I w o u l d have r e p o r t e d , obviously." Because the Security the is trial not trial court statement court's to relied determine on his f a c t u a l f i n d i n g as s u p p o r t e d by the evidence of the husband's average to annual income, husband's the record. Social income 1 The d i s s e n t s t a t e s t h a t t h e t r i a l c o u r t d i d n o t make a f i n d i n g o f f a c t as t o t h e amount o f t h e h u s b a n d ' s i n c o m e . In thus construing the f i n a l judgment, the d i s s e n t i s being o v e r l y t e c h n i c a l . Although i t i s true that the t r i a l court d i d not s e t out e x a c t l y what i t b e l i e v e d the husband's income t o be, i t analyzed i n some d e t a i l the amount o f income r e p o r t e d i n the husband's S o c i a l S e c u r i t y s t a t e m e n t and the tax returns. I t used t h a t a n a l y s i s to r e j e c t the wife's testimony r e g a r d i n g the husband's income, and i t u s e d t h a t a n a l y s i s to e s t a b l i s h the husband's alimony o b l i g a t i o n . Thus, i m p l i c i t i n t h e t r i a l c o u r t ' s d e t e r m i n a t i o n was a f i n d i n g t h a t the f i g u r e s c o n t a i n e d i n the S o c i a l S e c u r i t y s t a t e m e n t and the income-tax r e t u r n s a c c u r a t e l y r e f l e c t e d the husband's income. 1 17 2090851 The true wife also income, argues i n determining trial the that, court should evidence of the p a r t i e s ' l i f e s t y l e no debt. to rely In on i t s judgment, that evidence the p a r t i e s ' m a r i t a l " s p e c u l a t i o n and so concluding, In the property, on context and trial the trial ground We court the husband's considered fact court i n c o m e b a s e d on conjecture." the this the have the that they expressly that their any has estimate lifestyle erred. approved of the marital consideration i n determining party's lifestyle c o n f l i c t e d w i t h the p a r t y ' s r e p o r t e d 1999), this imputing several had Turner, court years claimed computer allowed 745 held So. that that party's 2d the 8 80 , trial 8 84 (Ala. court before to that field him needs to and have he and was the judgment was no current income, " ' i n the ha[d] accumulate real had maintained assets c o n t r i b u t i n g to 18 a life while the but style of the income husband and which the in evidence business paying bills the the App. erred The a income. Civ. not entered. estate of i n c o m e when i n c o m e t o t h e h u s b a n d b a s e d on e v i d e n c e o f h i s indicated his v. be agree w i t h the wife t h a t , i n lifestyle Turner of would party's In had refused o f m a k i n g an e q u i t a b l e d i v i s i o n o f court the the ha[d] bills for [wife] and 2090851 children.'" Turner, judgment) . Thus, permitted to determining As consider the marriage, into the to trial earned the as was the m i n u t i a at actual husband affluent lifestyle," going 2d evidence that party's that the So. pursuant i n t e r p r e t e d by indicate during 745 of 884 (quoting Turner, of a a trial trial the is in 2 court, court lifestyle party's income. court's financial $34,000 a n n u a l l y . parties f o u n d by enjoyed the the p a r t i e s ' trial a records However, "relatively court. Without spending h a b i t s , which We note t h a t , i n the c o n t e x t o f m a k i n g an equitable d i v i s i o n o f m a r i t a l p r o p e r t y as w e l l as d e t e r m i n i n g familys u p p o r t o b l i g a t i o n s , c o u r t s i n o t h e r j u r i s d i c t i o n s have a l s o approved of the c o n s i d e r a t i o n of the p a r t i e s ' l i f e s t y l e i n d e t e r m i n i n g i n c o m e when t h e e v i d e n c e o f t h e p a r t i e s ' i n c o m e so c o n f l i c t e d w i t h t h e e v i d e n c e o f t h e p a r t i e s ' l i f e s t y l e as t o make i t u n r e l i a b l e . S e e , e . g . , J o h n s o n v . F r i t z , 406 N.W.2d 614, 616 ( M i n n . C t . A p p . 1987) ( h o l d i n g t h a t "a c o u r t c a n t a k e i n t o a c c o u n t the l i f e s t y l e of a s o l e b u s i n e s s owner i f the f i g u r e s o f f e r e d do n o t c o m p o r t w i t h t h e e v i d e n c e o f that p e r s o n ' s l i f e s t y l e " ) ; M c C o r m i c k v . M c C o r m i c k , 159 V t . 472, 4 7 7 , 621 A . 2 d 2 3 8 , 240 (1993) ( h o l d i n g t h a t " [ l ] i f e s t y l e and p e r s o n a l e x p e n s e s may s e r v e as t h e b a s i s f o r i m p u t i n g i n c o m e where conventional methods for determining income are i n a d e q u a t e " ) ; and P a l a z z o v. P a l a z z o , 9 Conn. App. 486, 488¬ 89, 519 A . 2 d 1230, 1232 (1987) ( d e c l i n i n g t o h o l d t h e trial c o u r t i n e r r o r f o r " c o n c l u d [ i n g ] t h a t through the m a n i p u l a t i v e use of c o r p o r a t e f u n d s , [a p a r t y h a d ] m a i n t a i n e d a l i f e s t y l e d i s p r o p o r t i o n a t e t o t h e amount o f h i s c l a i m e d n e t monthly i n c o m e " and n o t i n g t h a t "'[Where a p a r t y t h r o u g h h i s own w r o n g f u l conduct l i m i t s the f i n a n c i a l e v i d e n c e a v a i l a b l e to the c o u r t , t h a t p a r t y cannot c o m p l a i n about the resulting c a l c u l a t i o n o f a m o n e t a r y a w a r d . ' " ( q u o t i n g V a i u s o v. V a i u s o , 2 Conn. App. 1 4 1 , 1 4 9 - 5 0 , 477 A . 2 d 678, 684 (1984))). 2 19 2090851 is only could somewhat not without have detailed lived as accumulating indebtedness trial. As financial on any records of principally d i d not on not have been engaging the lifestyle the time of alimony. 2003). his c o u r t may in speculation not the time the income of the found was basis. circumstances, the we the and record to stop trial court conjecture compute conclusion was alimony, working. speculate on the was 63 This Rather, i f a paying 894 So. spouse i n c o m e , t h a t s p o u s e may 20 using actual error. assessing trial court years o l d court has future events that i n c o m e s t r e a m o f a s p o u s e when d e t e r m i n i n g Edwards, would in the a g r e e , t h a t when periodic may they court trial t h a t t h e h u s b a n d , who trial, Edwards v. or her the the a l s o c o n t e n d s , and the that a t r i a l a f f e c t the both p a r t i e s agreed that Its contrary in considering year the at accurately reflect of per of in amount they amount however, assets evidence equitable erred the wife that that no husband. the apparent had major a cash foregoing on debt; which operated Given the The their i t is did massive business, of they previously discussed, husband's income above, 2d 698 retires, petition held may periodic (Ala. Civ. thereby at App. reducing for a modification 2090851 of h i s or her p e r i o d i c - a l i m o n y e q u i t i e s of the that the amount of We made an would soon a periodic alimony factual error error considering legal the in that the a i t appears award of alimony, with the marital property, Stone v. reversed and 2009), the the to trial the that i t was trial cause remanded and Stone, the 26 court's fair wife. the trial court income, and errors of court precluded because issue assuming second by the question division So. the impacted the 3d of j u d g m e n t i s due of the 1232, for reconsideration a from a retirement those the the husband's possible that is intertwined see the parties' lifestyle, considering Because C i v . App. awarded c a l c u l a t i n g the of By determining foregoing, alimony (Ala. in in evidence court's factor t o be Id. working, determining in error husband. stop impermissible c o n c l u d e , b a s e d on legal trial then-existing circumstances. husband considered o b l i g a t i o n as d e t e r m i n e d b y 1236 to be of those the trial awards. In the court to erred obtain discussed, same c o n t e x t , the i n f i n d i n g that gainful the wife wife she employment testified could in that 21 also the she argues that reasonably future. suffered As be expected previously f r o m a number 2090851 of maladies contrast, working, and t h a t , the husband as a r e s u l t , testified with the l i m i t a t i o n periods. The e v i d e n c e also during the assisting education; marriage, the the wife was c a p a b l e of that the wife f o r long had both however, she had n o t been employed the exception of occasionally office. Based f o r e g o i n g , we c o n c l u d e t h a t t h e t r i a l court's finding the evidence; erred Co., of being thus, we gainfully cannot i n i t s determination the that the conclude that regard. the t r i a l by court See F a r m e r s I n s . 873 S o . 2 d a t 2 5 4 - 5 5 . the wife division of the p a r t i e s ' issue. the on e m p l o y e d was s u p p o r t e d i n this Finally, its an h e a l t h s t u d i e s and a master's h i s law w i f e was c a p a b l e at In that showed with husband n o t work. t h a t she c o u l d n o t s t a n d undergraduate degree i n general degree i n higher she c o u l d Matters marital 1149-50 debts issue that property. S e e Combs ( A l a . C i v . App. 2008) of alimony. See S t o n e , We of do court erred i n not reach this are part of the d i v i s i o n of v. Combs, (assessing propriety of m a r i t a l property, the t r i a l debts. of debt a l l o c a t i o n i n reviewing division contends 4 So. division property 3d 1 1 4 1 , of m a r i t a l division). The i n turn, i s intertwined with the 26 S o . 3 d a t 1 2 3 6 . 22 Because we 2090851 are reversing the t r i a l division of alimony, the entering a new court's the m a r i t a l trial debt a l l o c a t i o n estate and will have court judgment as p a r t judgment on remand, with i t s award the of to division i t s periodic opportunity, to address of i t sproperty regard when questions of and award o f alimony. B a s e d on t h e f o r e g o i n g , we a f f i r m t h e t r i a l denying the wife's r e c o r d s , we r e v e r s e as the i t addresses cause discovery the t r i a l alimony to the t r i a l consistent with AFFIRMED this Thomas, the and p r o p e r t y court husband's division, f o r the entry insofar a n d we o f a new order telephone c o u r t ' s d i v o r c e judgment remand judgment opinion. I N PART; R E V E R S E D Thompson, P . J . , and P i t t m a n Bryan, of court's J . , concurs J . , concurs I N PART; AND REMANDED. and Moore, J J . , concur. i n the r e s u l t , i n part writing. 23 without writing. and d i s s e n t s i n part, with 2090851 THOMAS, I Judge, concur court's concurring i n s o f a r as determination discover the in part the that main the was insofar capable as dissenting opinion wife of being not of part. the trial entitled husband the to and court's determination gainfully the main o p i n i o n reverses employed. that I the dissent the p o r t i o n of the c o u r t ' s judgment d i v i d i n g the m a r i t a l p r o p e r t y and the in affirms was cellular-telephone records i n s o f a r as i t a f f i r m s t h e t r i a l wife and trial determining husband's alimony o b l i g a t i o n . The trial testimony court regarding l i v i n g expenses. that testimony, credibility the the c o u r t was husband what respective testimony. the husband's trial determine determine confronted with weight to It credibility and the give is not widely income Faced w i t h the d i f f i c u l t the of was and disparate the parties' task of r e c o n c i l i n g required to determine wife as witnesses the evidence this court's of witnesses or the and and to their function weight to evidence. "The A l a b a m a S u p r e m e C o u r t h a s s t a t e d t h a t ' t h e law i s s e t t l e d t h a t w e i g h i n g e v i d e n c e i s not the usual f u n c t i o n o f an appellate court. This is e s p e c i a l l y t r u e where ... the assessment of the c r e d i b i l i t y of witnesses i s involved.' Knight v. B e v e r l y H e a l t h C a r e B a y M a n o r H e a l t h C a r e C t r . , 82 0 24 the to give 2090851 So. 2 d 92, 102 ( A l a . 2001) ( c i t a t i o n omitted) . Accordingly, appellate courts i n this state g e n e r a l l y d o n o t r e v i e w e v i d e n c e i n o r d e r t o make f a c t u a l c o n c l u s i o n s ; i n s t e a d , they review judgments in order t o determine whether the t r i a l court committed r e v e r s i b l e e r r o r . " J . C . v . S t a t e D e p ' t o f Human R e s . , 986 S o . 2 d 1 1 7 2 , 1 1 8 4 ( A l a . Civ. App. 2007). The trial regarding court's the "speculation finding parties' living and conjecture" precluded from c o n s i d e r i n g l i f e s t y l e credible that 2d that and should the t r i a l the t r i a l the wife's court court little was e n t i t l e d amounted thought evidence; testimony be g i v e n testimony n o t , as t h e main a finding that was the wife's expenses asserts, a finding that opinion i t was r a t h e r , i t was on t h e s u b j e c t weight, to a was n o t determination t o m a k e . S e e J . C . , 986 S o . a t 1184. Likewise, the trial court's findings regarding the h u s b a n d ' s r e p o r t e d i n c o m e do n o t i n d i c a t e , a s t h e m a i n opinion asserts, on t h e that the t r i a l court impermissibly husband's S o c i a l S e c u r i t y statement. included income information listed i n i t s findings on t h e husband's appears that the t r i a l Although court of fact relied the t r i a l regarding the S o c i a l S e c u r i t y statement, i t included that information, 25 court along 2090851 with the p a r t i e s ' the parties' and testimony The t r i a l tax-return information, reported income of the wife or disparity of the testimony court judgment not the parties' the p a r t i e s ' evidence lifestyle. and evidence the main b a s e d on actually conclusion tax returns; i t only of the husband, Because on t h i s I on t h e s u b j e c t . i t found a n d i t was not r e q u i r e d opinion disagree issue. recites s t a t e what reverses findings of fact make, that t h e i n c o m e on t h e S o c i a l S e c u r i t y d i d not expressly income state. the that c o u r t ' s j u d g m e n t d o e s n o t make a d e t e r m i n a t i o n statement actual d i d not agree with regarding the husband's income e q u a l e d trial to illustrate that with the t r i a l the main The t o be the t r i a l the to the so court's court d i d opinion's 3 The main o p i n i o n acknowledges t h a t the t r i a l c o u r t d i d n o t make a n y f i n d i n g o f f a c t r e g a r d i n g t h e h u s b a n d ' s a c t u a l i n c o m e ; h o w e v e r , t h e m a i n o p i n i o n t h e n s t a t e s t h a t we s h o u l d r e a d an i m p l i c i t f i n d i n g i n t o t h e t r i a l c o u r t ' s j u d g m e n t s o t h a t t h i s c o u r t may t h e n r e v e r s e t h e t r i a l c o u r t ' s j u d g m e n t i n s o f a r a s i t i s b a s e d on t h a t i m p l i e d f i n d i n g . Two wellestablished principles militate against this court's implying a finding of f a c t and t h e n reversing the t r i a l court's j u d g m e n t b a s e d on t h a t i m p l i e d f i n d i n g . F i r s t , when a t r i a l c o u r t d o e s n o t make a n y s p e c i f i c f i n d i n g s o f f a c t on an i s s u e , we " w i l l assume t h a t t h e t r i a l c o u r t made t h o s e findings necessary to support i t s judgment." Key v. A l l i s o n , [Ms. 1 0 9 0 5 8 2 , December 17, 2010] So. 3d , ( A l a . 2010). See a l s o T r a n s a m e r i c a C o m m e r c i a l F i n . C o r p . v . A m S o u t h B a n k , N.A., 60 8 S o . 2 d 3 7 5 , 378 ( A l a . 1992 ) ( " U n d e r t h e o r e t e n u s 3 26 2090851 I further disagree with t h e main opinion the trial court n e c e s s a r i l y e r r e d when i t n o t e d years o l d a n d t h e n s t a t e d t h a t " t h e c o u r t c a n n o t make a s p o u s e work more than he o r she l i k e l y married." that that would have parties stayed alimony, the t r i a l factors, t h e age o f t h e p a r t i e s and t h e i r court When t h e h u s b a n d was 63 worked considering i s allowed an to consider, had the award among future of other employment prospects. See C l e m e n t s v . C l e m e n t s , 990 S o . 2 d 3 8 3 , 390 ( A l a . Civ. 2007). not believe error App. f o r the Therefore, trial h u s b a n d was n e a r i n g The ultimate whether the t r i a l the division of court I do to consider the the end o f h i s w o r k i n g question we a r e f a c e d that fact i t was that the life. with i n this case i s court exceeded i t s d i s c r e t i o n i n determining the parties' marital property and i n r u l e , the t r i a l c o u r t ' s judgment and a l l i m p l i c i t f i n d i n g s necessary to support i t carry a presumption of correctness "). S e c o n d , when c o n f r o n t e d w i t h a j u d g m e n t t h a t c o n t a i n s an a m b i g u i t y , we s h o u l d i n t e r p r e t t h e j u d g m e n t i n a way t h a t u p h o l d s t h e j u d g m e n t r a t h e r t h a n i n a way t h a t a l l o w s f o r r e v e r s a l . S e e E a s t i s v . V e t e r a n s O i l , I n c . , [Ms. 2 0 9 0 4 0 9 , December 17, 2010] So. 3d , ( A l a . C i v . App. 2010) (holding that, " [ f ] o l l o w i n g our w e l l e s t a b l i s h e d r u l e s of j u d i c i a l i n t e r p r e t a t i o n , a n y a m b i g u i t y t h a t may b e p r e s e n t i n ... t h e t r i a l c o u r t ' s j u d g m e n t s h o u l d b e r e a d i n a way t h a t upholds, r a t h e r than destroys, the t r i a l court's judgment"). T h e r e f o r e , we s h o u l d n o t r e a d a f i n d i n g o f f a c t i n t o t h e t r i a l court's judgment that causes the judgment to become reversible. 27 2090851 determining the husband's t h a t q u e s t i o n , we may the or trial court not alimony obligation. determine what weight evidence. be court; court to judges the and surroundings with be of w h i c h we are factfinding." trial justices) our u n f a m i l i a r and parte 2000). I a l s o note t h a t , reached a different court, such does the trial court witnesses." App. 1989). trial the "The going beyond 771 not that heard the v. G r i m s l e y , Because, I 545 d i s c e r n no So. familiar into an 475, 477 trial court by f o r our and 2d 75, 28 the have trial r e v e r s a l of observed 77 the the (Ala. Civ. part of the determining I would a f f i r m the in i t s entirety. (Ala. court might reached e r r o r on area ill-suited c o u r t i n d i v i d i n g the m a r i t a l p r o p e r t y or i n obligation, (appellate are 2d evidence must the and "even though t h i s constitute a basis which Grimsley So. of court court we f o r w h i c h we R.T.S., trial trial otherwise, d e c i s i o n than the husband's alimony of risk the appellate jurisdiction Ex deciding s u b s t i t u t e our judgment f o r t h a t s h o u l d have g i v e n t o c e r t a i n allowed In judgment

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