Lori Hood v. Scott Hood

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REL: 07/29/2011 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 Decisions, 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 2100358 L o r i Hood v. S c o t t Hood Appeal from M o b i l e C i r c u i t Court (DR-00-500679.03) THOMPSON, Presiding L o r i Hood Mobile For Circuit thereasons and r e v e r s e Judge. ("the mother") a p p e a l s f r o m t h e judgment o f t h e Court i n favor of Scott Hood ("the f a t h e r " ) . s t a t e d h e r e i n , we a f f i r m t h e j u d g m e n t i ti n part. i n part 2100358 This to their recounted i s the second appeal i n v o l v i n g these p a r t i e s r e l a t e d 2001 divorce. In the the f o l l o w i n g procedural first appeal, this court history: "[The f a t h e r ] and [ t h e m o t h e r ] were d i v o r c e d b y a 2001 judgment of the t r i a l c o u r t t h a t incorporated an a g r e e m e n t r e a c h e d b y t h e p a r t i e s . The divorce j u d g m e n t a w a r d e d t h e m o t h e r c u s t o d y o f t h e two m i n o r c h i l d r e n born of the p a r t i e s ' m a r r i a g e , awarded the father a standard schedule of v i s i t a t i o n , ordered the f a t h e r t o p a y $ 4 1 9 p e r month i n c h i l d s u p p o r t , and r e q u i r e d t h e f a t h e r t o p r o v i d e h e a l t h insurance for t h e b e n e f i t o f t h e p a r t i e s ' c h i l d r e n and t o reimburse the mother f o r any noncovered m e d i c a l expenses. I n a d d i t i o n , the d i v o r c e judgment s t a t e d that the p a r t i e s waived a l l claims to alimony, but paragraph f i v e of the judgment r e q u i r e d the f a t h e r to pay t h e mother $296 p e r month from income from a trust fund established f o r the b e n e f i t of the f a t h e r ; p a r a g r a p h f i v e of the d i v o r c e judgment a l s o s p e c i f i e d t h a t t h e a m o u n t t o be p a i d t o t h e m o t h e r pursuant to that paragraph would increase i f the monthly b e n e f i t s paid to the father increased. 2 "In A p r i l 2007, the f a t h e r f i l e d a p e t i t i o n f o r a rule n i s i , seeking t o have t h e mother h e l d i n contempt f o r a l l e g e d l y denying him v i s i t a t i o n with t h e p a r t i e s ' two c h i l d r e n . Also i n A p r i l 2007, the father f i l e d a complaint seeking to modify custody and t o t e r m i n a t e h i s o b l i g a t i o n to pay the mother amounts p u r s u a n t t o p a r a g r a p h f i v e o f t h e d i v o r c e judgment. The m o t h e r r e s p o n d e d t o t h e father's p e t i t i o n f o r a r u l e n i s i b y f i l i n g an a n s w e r d e n y i n g the m a t e r i a l a l l e g a t i o n s i n t h a t p e t i t i o n . She a l s o c o u n t e r c l a i m e d , s e e k i n g an i n c r e a s e i n t h e f a t h e r ' s child-support o b l i g a t i o n and s e e k i n g t o have the father held i n contempt f o r h i s f a i l u r e to pay certain amounts as r e q u i r e d b y t h e 2 0 0 1 divorce judgment. 2 2100358 "The t r i a l c o u r t c o n d u c t e d an o r e t e n u s h e a r i n g . D u r i n g t h a t h e a r i n g , the mother r e q u e s t e d that the t r i a l c o u r t i n c r e a s e what she c h a r a c t e r i z e d as t h e f a t h e r ' s ' a l i m o n y ' o b l i g a t i o n imposed by paragraph f i v e of the 2001 d i v o r c e judgment. The f a t h e r d i d not object to that request, and, therefore, we c o n c l u d e t h a t t h a t c l a i m was t r i e d b y t h e i m p l i e d consent of the p a r t i e s . See R u l e 1 5 ( b ) , A l a . R. C i v . P. "On J u n e 1 1 , 2 0 0 8 , t h e t r i a l c o u r t e n t e r e d an order i n which i t denied the mother's contempt c l a i m a n d h e r c l a i m s e e k i n g an i n c r e a s e i n c h i l d s u p p o r t , denied the father's claim seeking a m o d i f i c a t i o n of c u s t o d y , and g r a n t e d t h e f a t h e r ' s c l a i m s e e k i n g t o modify v i s i t a t i o n . " Specifically, paragraph judgment s t a t e s : 2 five of the divorce "'The p a r t i e s a g r e e t h a t t h e [ f a t h e r ] s h a l l p a y t o t h e [ m o t h e r ] t h e sum o f $ 2 9 6 per month f r o m t h e income o f t h e t r u s t which i s i d e n t i f i e d a s "The H e l e n Trane Hood T r u s t f o r the Benefit of Benjamin S c o t t Hood," w i t h s a i d m o n t h l y payment t o increase b y t h e same p e r c e n t a g e as t h e increase i n the monthly b e n e f i t s increase which are p a i d to the [ f a t h e r ] from s a i d Trust.'" Hood v . Hood, (footnote 1 23 and order, 1160, 1161-62 ( A l a . C i v . App. 2009) omitted). Subsequent 2008, So. 3d to the t r i a l the t r i a l the mother appealed. court court's resolved entry of i t s June the remaining The m o t h e r c o n t e n d e d t h a t 3 11, issues, the trial 2100358 court had support erred court's 32, hold father's A l a . R. Jud. the father five received from contention, due the this court of paragraph mother to we received that he to been five." that, from the t r u s t from which "when, a n d b y how have court to pursuant to 1165. mother The failing increased Id. at to comply not to Addressing although the complied with increase in trial pursuant 4 to Thus, the this he that father had that part the payment t o the amount f u n d , " the mother had the with increase court could much, t h e p a y m e n t s t o t h e 1166. also as t h e i n c o m e increased. the trial c o u r t had e r r e d i n r e f u s i n g for had the f o r the t r i a l t h a t r e q u i r e d him t o i n c r e a s e evidence determined paragraph wrote to to modify reversed that paragraph fund in proportion present should five unable judgment by f a i l i n g under trust "openly acknowledged f u n d s he Id. at contempt of the d i v o r c e p a y m e n t s h e was was child- obligation child-support Admin. in father's court obligation, on a p p e a l t h a t t h e t r i a l paragraph the this the c o u r t had d e t e r m i n e d whether child-support the contended the modify judgment and remanded t h e c a u s e calculate to to Because the t r i a l father's Rule refusing obligation. a s c e r t a i n how the in failed have mother requirements court of of concluded 2100358 that to the trial hold present was in contempt. On reflects trial f o r the taken order not appeal remand, the amount had father the court from divorce that that 27, remand, March child-support the father He the filed alleged sought p r i m a r y p h y s i c a l also sought the five of the w h i c h he his begun in the following No new appeal as cohabiting had entered the modify the to been an award material he p a r t i e s ' daughter and the obligation. The paragraph the mother $296 per of alimony, someone alleging that opposite sex. The f a t h e r l a t e r amended h i s p e t i t i o n by w i t h d r a w i n g h i s claim for modification and r e q u e s t f o r an o f f s e t a g a i n s t any had a c c r u e d b a s e d on had resided with the child 5 support child-support extended period him. the month, had custody of father she of with a t h a t a l l e g e d change, of h i s o b l i g a t i o n under judgment to pay characterized court petition b a s e d on child-support termination divorce trial there c u s t o d y of of 2010, obligation. a that and, modification 4, record order. change i n c i r c u m s t a n c e s , a The failing a judgment e s t a b l i s h i n g a 2009, b e f o r e judgment. Id. on, entered father's October on court abused i t s d i s c r e t i o n i n but adding arrearage a that the p a r t i e s ' daughter 2100358 The in mother f i l e d which certain she alleged money judgment a motion to enforce required paragraph divorce for t o make p a y m e n t s t o h e r divorce In addition motions, previous court, month and she c o u r t had in child to pay the that that trial he court. contempt and to five to realleging hold the father in from her claims this ordered the father that had as pay $616 per to June 2008 an father attorney to pay a child-support She sought awarding her the an an attorney fee. the fee finding fee. The ordered arrearage attorney order 6 4, to failed to pay March retroactively effective mother $1,000 on the a judgment, f o l l o w i n g remand from support that, amended m o t i o n the i t had failed and an 2010, the had pursuant to paragraph judgment thus, s u p p o r t and, f a t h e r i n contempt the mother f i l e d asserted entered which as asserted and 2010, the contempt. motion, judgment. S e p t e m b e r 17, enforce trial a motion to h o l d the her the her filed divorce filed of pay mother l a t e r to she five to The On time failed making payments to her under t h a t p a r a g r a p h . the the had discontinued of at by father judgment had failure that, the divorce he his and that the had ordered the mother child accrued by father the in 2100358 On October 18, 2010, at which i t r e c e i v e d father that did she not appear presently boyfriend and that beginning after at which time she of the returns the the testified a that "property The she of fund basis that The had had that the divorce claimed as p a r t i e s had testified boyfriend she had for a account October 2009, those payments. the her received trust until The $296 m o n t h l y payment income had her father's terminated she mother The p a r t i e s ' c h i l d r e n and stated from trial documentary evidence. the fund stated she had benefits i n excess from She a bench on received considered her income-tax i t , although the she m o n t h l y payment settlement." mother a l l the held been l i v i n g w i t h years the court trial. trust documentation from the f u n d and had father the the p a r t i e s ' 2001 father's during for $296 mother a d m i t t e d t h a t from t e n u s and years. payment trial resided with a p p r o x i m a t e l y two monthly ore the of the mother t e s t i f i e d the trust that that her attorney company t h a t h a n d l e d the had the her father $ 7 0 0 he fund the attorney at had had the father's 7 prepare received had obtained father's an itemization from b e e n r e c e i v i n g on time trust of the the a trust monthly divorce. f u n d had trust been The paying 2100358 a p o r t i o n of h i s c h i l d support as other b e n e f i t s f o r the purchase of a house according to her entitled to fund, w e l l as as The at mother attorney had summaries trust fund the trust items as travel of 2007 t h e trust the father a house. loans, on in as that basis, to or expenses, The stated was payments amount o f summaries made She c a l c u l a t i o n s , she relative a monthly had purchase father. of to the showed what e a c h p a r t y fund such the $53,970.47 submitted Those on for interest obtained h i s student well f a t h e r , i n c l u d i n g $85,000 toward attorney's least and the that, presently from the trust $11,986.46. documentation father's trust her fund. had received from as one-time payments as well on behalf of the estate-planning summaries the the father work, indicated that for and in the March f u n d b e g a n m a k i n g m o n t h l y p a y m e n t s on b e h a l f for his student loans. 1 Those summaries of were The mother also submitted two compact discs that, a c c o r d i n g t o her, c o n t a i n e l e c t r o n i c c o p i e s of the documents her a t t o r n e y had obtained from the company h a n d l i n g the father's trust fund. However, e x c e p t f o r an e l e c t r o n i c v e r s i o n of the r e c o r d of appeal i n the p r i o r appeal and c e r t a i n o t h e r f i l e s r e l a t e d t o an e n t i r e l y d i f f e r e n t c a s e , t h e f i l e s on t h o s e d i s c s a r e p r o t e c t e d b y p a s s w o r d s , a n d t h e r e i s no i n d i c a t i o n t h a t t h e m o t h e r p r o v i d e d t h e t r i a l c o u r t w i t h t h o s e p a s s w o r d s n e c e s s a r y t o a c c e s s t h e f i l e s on t h o s e d i s c s . Although t h e d i s c s a r e p a r t o f t h e r e c o r d on a p p e a l , this c o u r t was n o t p r o v i d e d w i t h t h e p a s s w o r d s n e c e s s a r y t o a c c e s s 1 8 2100358 introduced The support into evidence mother based without testified on objection. that that the fact the father the t r i a l owed her court's child previous m o d i f i c a t i o n o f t h e f a t h e r ' s c h i l d - s u p p o r t o b l i g a t i o n had been retroactive seeking t o J u n e o f 2008. an a t t o r n e y ' s On N o v e m b e r terminating the the obligation was the father's of h i s t r u s t . entered t o pay t h e mother The trial court because t h e mother her boyfriend. The t r i a l of the p a r t i e s ' daughter the father's child-support the p a r t i e s ' remaining single court to cohabiting a judgment claims. court The t r i a l The t r i a l with court her boyfriend; made no f i n d i n g s o f f a c t b e a r i n g of a portion of that found that i t to the father obligation. five had admitted f i n d i n g o f f a c t i n t h e judgment -- t h a t admitted s h e was construed as p e r i o d i c a l i m o n y and s p e c i f i c a l l y cohabiting with that o b l i g a t i o n under paragraph judgment due t o be t e r m i n a t e d custody testified f e e o f $10,000. 9, 2 0 1 0 , t h e t r i a l p a r t i e s ' divorce income She a l s o to also awarded and modified court made denied only a t h e mother had the t r i a l court on t h e m o t h e r ' s a l l e g a t i o n s t h e i n f o r m a t i o n on them r e l a t e d t o t h e f a t h e r ' s t r u s t fund, and, as a r e s u l t , t h i s c o u r t h a s b e e n u n a b l e t o c o n s i d e r a n y s u c h i n f o r m a t i o n c o n t a i n e d on t h o s e d i s c s . 9 2100358 that the father obligation as the in c u s t o d y of time court mother judgment of the the erred judgment arrears failed a motion and that request. She that the an trial that trial provision. and custody of set aside the child-support of the On The of should court that the father's trust the award constituted 10 forward the trial of the the and court the father in pursuant to mother's award mother the trial of of the motion modifying the d e n i e d the The court to the modifying in divorce alimony w e r e due a portion an the of i t s judgment trial of for have h e l d the mother contends t h a t concluding request put five granted p a r t i e s ' daughter in was amounts t h a t The fee pending at longer periodic mother's postjudgment motion. appeal, the father's no those portions obligation. her amend, o r v a c a t e the paragraph court t o pay to evidence award child-support attorney also argued that interpreting providing an alter, that no his ordered. to argued to t o pay previously contempt f o r f a i l i n g in part as p a r t i e s ' d a u g h t e r was in m o t h e r and had she trial as had filed which support of t h a t had in o r t h a t he trial The was father's balance appeals. court erred income from periodic alimony 2100358 rather that than an award paragraph four of of alimony the in gross. divorce judgment "[e]ach p a r t y waives a l l claims to alimony, f u t u r e , " and of funds t h a t she in paragraph settlement." court's funds judgment In Thus, judgment to the should Daniel 2002), this alimony and testified five she be v. court alimony under the discussed in We 841 the out provides hearing t h a t the been portion father's paragraph reversed. Daniel, that points that past, present, "always argues, terminating mother at the had She 2 a of of award property the obligation five and the trial to pay divorce disagree. So. 2d 124 6 (Ala. d i f f e r e n c e between Civ. App. periodic gross: "Our supreme c o u r t has e x p l a i n e d t h e d i f f e r e n c e between p e r i o d i c alimony and alimony in gross. H a g e r v . H a g e r , 293 A l a . 47, 299 So. 2d 743 (1974). Alimony i n gross i s c o n s i d e r e d 'compensation f o r the [ r e c i p i e n t spouse's] inchoate m a r i t a l rights [and] ... may a l s o r e p r e s e n t a d i v i s i o n o f t h e f r u i t s o f the m a r r i a g e where l i q u i d a t i o n of a c o u p l e ' s j o i n t l y owned a s s e t s i s n o t p r a c t i c a b l e . ' H a g e r v. H a g e r , 293 Ala. at 54, 299 So. 2d at 749. An A l t h o u g h the mother does not use the p h r a s e " a l i m o n y i n g r o s s " i n her p r i n c i p a l a p p e l l a t e b r i e f , i t i s c l e a r from her r e p l y b r i e f t h a t she i s c o n t e n d i n g t h a t t h e a w a r d i n p a r a g r a p h f i v e c o n s t i t u t e s alimony i n gross, which i s a form of p r o p e r t y settlement. See L a m b e r t v . L a m b e r t , 22 So. 3 d 4 8 0 , 485 ( A l a . C i v . App. 2008) ( " ' [ A ] l i m o n y i n gross i s a form of p r o p e r t y s e t t l e m e n t . ' " ( q u o t i n g T e n E y c k v . T e n E y c k , 885 So. 2 d 1 4 6 , 152 ( A l a . C i v . App. 2003))). 2 11 2100358 alimony-in-gross award 'must satisfy two r e q u i r e m e n t s , (1) t h e t i m e o f p a y m e n t a n d t h e a m o u n t m u s t be c e r t a i n , a n d (2) t h e r i g h t t o a l i m o n y m u s t be v e s t e d . ' C h e e k v . C h e e k , 500 So. 2d 17, 18 ( A l a . C i v . App. 1 9 8 6 ) . I t m u s t a l s o be p a y a b l e o u t o f t h e p r e s e n t e s t a t e o f t h e p a y i n g s p o u s e as t h a t e s t a t e e x i s t s at the time of the d i v o r c e . Hager v. H a g e r , 293 A l a . a t 5 5 , 299 So. 2 d a t 7 5 0 . In other words, alimony i n gross i s a form of p r o p e r t y s e t t l e m e n t . H a g e r v . H a g e r , 293 A l a . a t 54, 299 So. 2d a t 7 4 9 . An alimony-in-gross award is generally not modifiable. Id. " P e r i o d i c a l i m o n y , on t h e o t h e r h a n d , ' i s an a l l o w a n c e f o r the f u t u r e support of the [ r e c i p i e n t spouse] payable from the c u r r e n t e a r n i n g s of the [paying spouse].' H a g e r v . H a g e r , 293 A l a . a t 5 5 , 299 So. 2 d a t 7 5 0 . I t s p u r p o s e ... ' i s t o s u p p o r t the former dependent spouse and to enable that spouse, to the e x t e n t p o s s i b l e , to m a i n t a i n the status that the p a r t i e s had enjoyed during the marriage, u n t i l the spouse is self-supporting or maintaining a status similar t o t h e one enjoyed d u r i n g the marriage.' O ' N e a l v . O ' N e a l , 678 So. 2 d 1 6 1 , 165 ( A l a . C i v . App. 1 996) (emphasis added). P e r i o d i c a l i m o n y i s m o d i f i a b l e b a s e d upon changes i n t h e p a r t i e s ' f i n a n c i a l c o n d i t i o n s o r n e e d s , s u c h as an i n c r e a s e i n t h e n e e d o f t h e r e c i p i e n t s p o u s e , a d e c r e a s e i n t h e i n c o m e o f t h e p a y i n g s p o u s e , o r an i n c r e a s e i n the income of the r e c i p i e n t spouse. See T i b b e t t s v . T i b b e t t s , 762 So. 2d 8 5 6 , 858 ( A l a . C i v . App. 1999). The paying spouse's duty to pay p e r i o d i c a l i m o n y may be t e r m i n a t e d b y p e t i t i o n and p r o o f t h a t t h e r e c i p i e n t spouse has r e m a r r i e d or 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 . Ala. Code 841 1975, at § So. 2d As 30-2-55." 1250. previously noted, paragraph judgment p r o v i d e s : 12 five of the divorce 2100358 "5. The p a r t i e s a g r e e t h a t t h e [ f a t h e r ] s h a l l p a y t o t h e [ m o t h e r ] t h e sum o f $ 2 9 6 p e r m o n t h f r o m t h e i n c o m e o f t h e t r u s t w h i c h i s i d e n t i f i e d as 'The H e l e n T r a n e Hood T r u s t f o r t h e B e n e f i t o f B e n j a m i n S c o t t Hood,' w i t h s a i d m o n t h l y payment t o i n c r e a s e by the same p e r c e n t a g e as the increase i n the monthly benefits increase which are p a i d to the [ f a t h e r ] from s a i d t r u s t . " The a m o u n t o f an certain, see paragraph award Daniel, i s not. supra; First, amount o f t i m e d u r i n g the award happening was determine the entitled. See So. 3d former ___ , there to the amount wife's benefits cannot division of marital provision event, i . e . , an Thus, there is which the the award [Ms. a 2011) share to property, of the alimony both the time at which the former wife's vest and the total amount the former upon increase no the the in to mother was 1, former 2011] an the husband's unmodifiable i n gross, award w i l l wife this way ("Additionally, constitute or in be Second, increase 2081182, A p r i l App. deemed to to limiting future of be made automatic (Ala. Civ. award award an Rose v. Rose, ___ i s no father. of the i s required t h e a w a r d i s t o be p a i d . to uncertain paid i n gross however, which subject o f an benefits of alimony will because completely receive are indefinite."). Furthermore, the parties 13 have treated the award as 2100358 constituting alimony in periodic gross. modification of For the to the p r e v i o u s alimony example, award, the present has for in r e t u r n s , w h i c h i s not in gross periodic also but, shows former that the husband's benefits Adkins Adkins, ("The payments former wife the 3d case with 18, their 23 income by the tax 3d also divided the 14 i t s treatment share her valid as tax i f marital the former husband, not a tax be of the former App. f o r the ("The record property."); (Ala. Civ. B r u n n e r v. as filings-- a income payments as alimony ("The in she income-tax taxable 2008) or her to payment as alimony."); former wife on at 1077 designated App. monthly a led action leading the 3d be 1071, that l i s t e d her has not action with income deductible Civ. that as been So. periodic (Ala. intent 61 wife sought i t s t r e a t m e n t as So. would had are and former have t e s t i f i e d that income Rose, that of consistent benefits characterization i n the mother as nonmodifiable parties receipt five is See husband's v. her the consistent with instead, alimony. both as f a t h e r i n the Moreover, paragraph than mother the consistently treated called the a p p e a l and appeal. rather Ormsby, parties treated d e d u c t i o n by 2010) to as 10 the is So. also stated as taxable the former 2100358 husband. The provision l e n d s s u p p o r t t o t h e former w i f e ' s argument t h a t the alimony a w a r d was The "claims former fact husband admits i n t e n d e d t o be that the to alimony, parties purported past, present of the d i v o r c e judgment paragraph five The characterization alimony from App. i n gross an 1983). In the present does in a rather case, of the award us after that award alimony. d i v o r c e judgment i s properly than from have alimony intent, as determined i t s form or (Ala. Civ. d i s c u s s e d , the f i v e c o m p o r t s more as p e r i o d i c their p r o v i d e d f o r an a s we a l i m o n y i n g r o s s , as d o e s t h e p a r t i e s ' treatment this separate not persuade in a alimony of the award i n p a r a g r a p h i t s characterization their future," waive an a w a r d o f p e r i o d i c award of the award to See K e n c h e l v . K e n c h e l , 440 S o . 2 d 5 6 7 , 569 substance with of than or p e r i o d i c the substance label. and of the d i v o r c e judgment i n gross rather that 'in gross.'"). paragraph of alimony in his brief rather readily than as g l e a n e d as from the e n t r y of the d i v o r c e judgment. Because for an award paragraph of five periodic a l i m o n y i n g r o s s , we of the d i v o r c e judgment alimony rather conclude that the t r i a l 15 than an provided award of court d i d not e r r 2100358 in terminating Section the father's 30-2-55, A l a . Code obligation 1975, under provides, that paragraph. in relevant part: "Any decree of 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 court t o p r o v i d e f o r the t e r m i n a t i o n of 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 s p o u s e r e c e i v i n g s u c h a l i m o n y has r e m a r r i e d or t h a t such spouse i s l i v i n g 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." The of mother admitted the trial opposite t h a t she sex since court properly had at been c o h a b i t i n g w i t h least terminated November 2009. the father's a person Thus, the periodic-alimony obligation. The mother next discretion says, the in denying t h e e v i d e n c e was her same payments paragraph the motion undisputed terms of paragraph f i v e to increase the contends that payments to the the to to certain due before Discussing for contempt t h a t the trust fund alimony N o v e m b e r 2 0 0 9 , we contempt, court abused i t s because, f a t h e r had mother r e q u i r e d that As trial of t h e d i v o r c e j u d g m e n t by proportion him. the this court has had violated failing thereunder increased payments under agree. written: "'"Civil contempt" i s d e f i n e d as a " w i l l f u l , c o n t i n u i n g f a i l u r e or r e f u s a l of any p e r s o n t o c o m p l y w i t h a c o u r t ' s l a w f u l w r i t , subpoena, process, order, rule, or 16 she in its that 2100358 command t h a t b y i t s n a t u r e i s s t i l l c a p a b l e of being complied with." Rule 70A(a)(2)(D), Ala. R. Civ. P. The determination o f whether a party is in contempt i s w i t h i n the sound d i s c r e t i o n o f the trial court, and t h a t determination w i l l n o t be r e v e r s e d a b s e n t a s h o w i n g t h a t the court exceeded the limits of i t s discretion. S t a c k v . S t a c k , 646 So. 2 d 51 ( A l a . C i v . App. 1994).' "'Routzong v . B a k e r , 20 So. 3d 8 02 , 8 1 0 ( A l a . C i v . App. 2009). '"The failure to perform an act r e q u i r e d b y t h e c o u r t f o r t h e b e n e f i t o f an o p p o s i n g p a r t y c o n s t i t u t e s c i v i l contempt." C a r t e r v. S t a t e e x r e l . B u l l o c k C o u n t y , 393 So. 2 d 1 3 6 8 , 1370 ( A l a . 1981).' J . K . L . B . F a r m s , L L C v . P h i l l i p s , 975 So. 2 d 1001, 1012 ( A l a . C i v . App. 2007). Furthermore, ' " [ t ] h e purpose of a c i v i l contempt p r o c e e d i n g i s to e f f e c t u a t e c o m p l i a n c e w i t h c o u r t o r d e r s and n o t t o p u n i s h the contemnor." W a t t s v . W a t t s , 706 So. 2 d 7 4 9 , 751 ( A l a . C i v . A p p . 1 9 9 7 ) . ' H a l l v . H a l l , 892 So. 2 d 9 5 8 , 962 ( A l a . C i v . A p p . 2004)." Reed v. In Dyas, 28 the p r i o r So. 3d appeal, 6, 8 ( A l a . C i v . App. this court 2009). wrote: "In t h i s case, the f a t h e r openly acknowledged t h a t he h a d n o t c o m p l i e d w i t h t h a t p a r t o f p a r a g r a p h f i v e t h a t r e q u i r e d him to i n c r e a s e the payment to the mother i n p r o p o r t i o n to the i n c r e a s e i n the a m o u n t o f f u n d s he r e c e i v e d f r o m t h e t r u s t fund. The f a t h e r a d m i t t e d t h a t t h e f u n d s he r e c e i v e d f r o m the t r u s t f u n d had i n c r e a s e d over the y e a r s s i n c e the divorce and that he had not increased the p r o p o r t i o n a t e p a y m e n t t o t h e m o t h e r as r e q u i r e d by paragraph f i v e of the d i v o r c e judgment. The f a t h e r d o e s n o t c o n t e n d t h a t he was u n a b l e to pay the a d d i t i o n a l amount. R a t h e r , he c o n t e n d s t h a t the a m o u n t s p a i d b y h i s f a m i l y o r t h e t r u s t f u n d on h i s b e h a l f e x c e e d t h e a m o u n t he was r e q u i r e d to have 17 2100358 paid under paragraph five. "However, a l t h o u g h i t i s c l e a r t h a t t h e f a t h e r did not comply w i t h the p r o v i s i o n s of paragraph f i v e of t h e d i v o r c e judgment, t h e r e c o r d does n o t c o n t a i n any e v i d e n c e p r e s e n t e d t o t h e t r i a l c o u r t regarding when t h e a m o u n t s p a i d t o t h e f a t h e r b y t h e t r u s t fund increased o r b y how much t h o s e p a y m e n t s h a d increased. T h u s , t h e r e was no way f o r t h e t r i a l c o u r t t o d e t e r m i n e , b a s e d on t h e e v i d e n c e p r e s e n t e d t o i t , w h e n , a n d b y how m u c h , t h e p a y m e n t s t o t h e mother s h o u l d have been i n c r e a s e d p u r s u a n t t o t h e requirements of paragraph f i v e . Given the lack of evidence i n the record p e r t a i n i n g to the s p e c i f i c f a c t s o f t h i s i s s u e , we c a n n o t s a y t h a t t h e t r i a l court exceeded i t s d i s c r e t i o n i n f a i l i n g to f i n d the f a t h e r i n contempt f o r h i s f a i l u r e t o comply w i t h the terms of paragraph five of the divorce judgment." Hood, 23 So. 3d at 1166. The mother has made the same a r g u m e n t i n t h e p r e s e n t a c t i o n as she d i d i n t h e p r i o r a c t i o n , but, unlike has provided e v i d e n c e a s t o p a y m e n t s made t o h e r a n d t o t h e f a t h e r from the father's has to trust provided extent i n the p r i o r fund. a basis to which her pursuant action, Therefore, on w h i c h the father i n this the courts should to paragraph the mother five action, may the mother determine have i n c r e a s e d of the divorce the h i s payments judgment. 3 We n o t e t h a t t h e f a t h e r h a s n o t a s s e r t e d t h e d o c t r i n e o f r e s j u d i c a t a as a b a r t o t h e mother's contempt a c t i o n a g a i n s t h i m , d e s p i t e t h e f a c t t h a t h e r a c t i o n r a i s e s t h e same i s s u e s as h e r p r i o r c o n t e m p t p e t i t i o n t h a t was l i t i g a t e d t o a f i n a l judgment. "Res j u d i c a t a i s an a f f i r m a t i v e d e f e n s e a n d i f i t i s n o t r a i s e d i n t h e t r i a l c o u r t , i t i s deemed t o have been 3 18 2100358 It i s undisputed father's the trust mother additional father's for by him that that, f u n d was monthly beginning time, the and that the father. Thus, benefits paid 5 making a i t appears to this student-loan i n March or on However, time action fund payment 2007. divorce, The were of used monthly by of make demonstrates the payment March i t i s undisputed that the approximately to the the evidence to fund were b e i n g obligation behalf the demonstrates I t also trust that, of $700 m o n t h l y . trust child-support i t was exceed $700. from in funds from the father's the p a y i n g him presented funds at of of $200 2007, the that that, used to mother father $187 had the pay $525 to 4 the monthly begun father waived." I m p e r i a l C r o w n M a r k e t i n g C o r p . v . W r i g h t , 560 1025, 1027 (Ala. 1989). So. to did 2d T h i s payment appears t o r e p r e s e n t an amount o f child s u p p o r t t h a t the f a t h e r had v o l u n t a r i l y i n c r e a s e d from what had been o r d e r e d i n the d i v o r c e judgment. 4 In his appellate brief, the father argues that the monthly benefits he received from the trust fund never e x c e e d e d $ 7 0 0 , r e l y i n g on t e s t i m o n y f r o m t h e m o t h e r i n w h i c h s h e a g r e e d w i t h t h e f a t h e r ' s a t t o r n e y on cross-examination t h a t t h e f a t h e r had n o t b e e n p a i d more t h a n $700 p e r month by the t r u s t . H o w e v e r , when t h e w h o l e c o n t e x t o f t h e m o t h e r ' s testimony i s considered, i t i s clear that, i n agreeing with t h e f a t h e r ' s a t t o r n e y , s h e was n o t c o n s i d e r i n g t h e i t e m s , s u c h as t h e f a t h e r ' s c h i l d - s u p p o r t o b l i g a t i o n , t h a t t h e t r u s t f u n d h a d b e g u n t o p a y on t h e f a t h e r ' s b e h a l f . 5 19 2100358 not, to a t any p o i n t , i n c r e a s e the wife increase as t h e p e r i o d i c a l i m o n y he was required i n the monthly by paragraph benefits he five received based from paying on the his trust fund. In failing to increase t h e amount of alimony due the mother pursuant to paragraph f i v e of the d i v o r c e judgment, the father the "fail[ed] benefit conclude failed trial for to perform o f " the mother. that the t r i a l to hold court's the t r i a l not court the that appropriately. abused Thus, i t sd i s c r e t i o n i n contempt. To that we when i t extent, the and t h e cause i s remanded to enter a judgment that, adjudging to the extent the father 6 father i n contempt p a y m e n t s t h a t he f a i l e d terminate by t h e c o u r t f o r 28 S o . 3 d a t 8. judgment i s reversed, note however, hold Reed, court the f a t h e r t o be i n c o n t e m p t . We an a c t r e q u i r e d the t r i a l f o r any court d i d periodic-alimony t o make a f t e r he f i l e d h i s p e t i t i o n t o alimony Discussing obligation, the trial court acted the termination of p e r i o d i c alimony A l t h o u g h we c o n c l u d e t h a t t h e t r i a l court erred i n f a i l i n g t o h o l d t h e f a t h e r i n c o n t e m p t , we w i l l l e a v e i t t o t h e t r i a l c o u r t t o d e t e r m i n e , b a s e d on t h e e v i d e n c e p r e s e n t e d , t h e p e r i o d d u r i n g w h i c h t h e f a t h e r was i n v i o l a t i o n o f t h e d i v o r c e j u d g m e n t a n d t h e amount owed t h e m o t h e r a s a r e s u l t o f that violation. 6 20 2100358 based the on t h e r e c e i v i n g opposite spouse's c o h a b i t a t i o n s e x , o u r supreme court with someone o f has w r i t t e n : "The Court of C i v i l Appeals, i n i t s cases c o n s t r u i n g § 30-2-55, has e s t a b l i s h e d t h e r u l e t h a t 'once t h e r e i s s u f f i c i e n t p r o o f t h a t t h e s p o u s e i s o p e n l y l i v i n g o r 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 s e x , no a l i m o n y a c c r u e s o r m a t u r e s b e y o n d the time t h a t such c o h a b i t a t i o n began.' R u s s e l l v. R u s s e l l , 586 S o . 2 d 1 2 , 13 ( A l a . C i v . A p p . 1 9 9 1 ) . See Wood v . Wood, 682 S o . 2 d 138 6 ( A l a . C i v . A p p . 1996). T h e r e f o r e , t h e husband i s n o t l i a b l e f o r any a l i m o n y a f t e r t h e date t h e w i f e began c o h a b i t a t i n g w i t h h e r b o y f r i e n d i n 1986. The t r i a l c o u r t thus erred i n f i n d i n g t h e husband i n contempt and i n ordering him to pay alimony f o r that p e r i o d a f t e r the c o h a b i t a t i o n began." Ex parte Ward, previously boyfriend 782 noted, at least So. the 2d 1 2 8 5 , 1288 mother as e a r l y began ( A l a . 2000 ). cohabiting as November 2009, with which As her i s when the f a t h e r s t o p p e d p a y i n g p e r i o d i c a l i m o n y t o h e r a n d a f t e r he had filed Thus, hispetition the t r i a l court father i n contempt mother claims Finally, in failing failure accrued. with to terminate to hold to pay regard However, the payments t o any a l i m o n y to hold the f o l l o w i n g November contends the father certain obligation. d i d not e r r i n f a i l i n g f o r the period t h e mother h i s alimony child t h e mother that i n contempt support failed 21 the t r i a l that, 2009. court because erred of h i s she says, to preserve that had issue 2100358 for appeal. App. 2010), In K e l l e y v. K e l l e y , this court 52 S o . 3 d 534 (Ala. C i v . wrote: "The wife next asserts that the t r i a l court exceeded i t s discretion by f a i l i n g to f i n d the husband i n contempt of c o u r t f o r h i s f a i l u r e t o pay alimony, t o m a i n t a i n h e a l t h i n s u r a n c e on t h e w i f e , and t o p r e s e r v e the m a r i t a l assets i n accord with t h e p e n d e n t e l i t e o r d e r . ... "We c a n n o t a d d r e s s t h e i s s u e s r e g a r d i n g unpaid a l i m o n y and h e a l t h i n s u r a n c e because t h e w i f e f a i l e d to preserve those issues f o r appeal. ' [ I ] na nonjury case i n which the t r i a l c o u r t m a k e s no s p e c i f i c f i n d i n g s o f f a c t , a p a r t y m u s t move f o r a new t r i a l or otherwise properly raise before the t r i a l court the question r e l a t i n g to the s u f f i c i e n c y or weight o f the evidence i n order t o p r e s e r v e that question f o r appellate review.' New P r o p s . , L . L . C . v . S t e w a r t , 905 S o . 2 d 7 9 7 , 8 0 1 - 0 2 ( A l a . 2 0 0 4 ) . See a l s o P o i n t C l e a r L a n d i n g A s s ' n , I n c . v . K a y l o r , 959 So. 2 d 6 7 2 , 677 ( A l a . C i v . A p p . 2 0 0 6 ) ( a c c o r d ) ; a n d R u l e 5 2 ( b ) , A l a . R. C i v . P. " I n t h i s c a s e , t h e t r i a l c o u r t made no f i n d i n g s of f a c t ; i t s i m p l y e n t e r e d a judgment d i v o r c i n g t h e p a r t i e s and d i v i d i n g t h e m a r i t a l p r o p e r t y . Although the w i f e filed a postjudgment motion, the t r i a l c o u r t ' s f a i l u r e t o f i n d t h e h u s b a n d i n c o n t e m p t on the basis of unpaid alimony and l a p s e d health i n s u r a n c e was n o t a s s e r t e d a s e r r o r i n t h a t m o t i o n . As a r e s u l t , t h e w i f e h a s f a i l e d t o p r e s e r v e those issues f o r appellate review." 52 So. 3d a t 544. In findings Thus, the present of fact to preserve case, the t r i a l relative f o r appeal to court the issue the issue 22 d i d n o t make of child whether any support. the evidence 2100358 demonstrated father in required that the contempt by the for trial required to raising that file focusing have of divorce judgment. mother's the judgment to contempt additional in the affirm the on the for cause failing a l i m o n y due the for the the to enter opinion. Both parties' mother the raise mother that improper issue, cannot consider the the of issue reverse i t failed child the to before five of the we paragraph did change find the November was from h i s trust trial court's court to judgment requests denied. 23 for in the increase fund. We the consistent an father the judgment. consider court's 2009, of paid support. trial a result a was specifically m o t h e r as trial support of pay, he the this court to to and are and that presented appeal court's foregoing, of not trial a result, extent balance did the motion Although hold child judgments, postjudgment related to a l l the daughter monthly b e n e f i t s the prior she the required pay motion, As the to supra. parties' contention Based a was Kelley, on custody failure filed issue. instead court court's postjudgment a trial We remand evidence with attorney's this fee on 2100358 AFFIRMED I N PART; REVERSED Pittman, Bryan, I N PART; AND REMANDED. a n d Thomas, J J . , c o n c u r . Moore, J . , concurs i n the result, 24 without writing.

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