Opinion
2180908
03-13-2020
Lori Vaughn GRIGGS v. Shannon Keith GRIGGS
Angela Cochran Morgan, Fort Payne, for appellant. Tamara W. Neeley and W.N. Watson, Fort Payne, for appellee.
Angela Cochran Morgan, Fort Payne, for appellant.
Tamara W. Neeley and W.N. Watson, Fort Payne, for appellee.
MOORE, Judge.
Lori Vaughn Griggs ("the wife") appeals from a judgment entered by the DeKalb Circuit Court ("the trial court") divorcing her from Shannon Keith Griggs ("the husband"). We affirm the judgment in part and reverse it in part.
Procedural History
On October 20, 2017, the husband filed a complaint seeking a divorce from the wife. On December 12, 2017, the wife answered the complaint and filed a counterclaim seeking a divorce from the husband. After a trial held over multiple days, the trial court entered a judgment divorcing the parties, dividing the parties' property, awarding the parties joint legal and physical custody of the parties' three children, and declining to award alimony or child support. On June 3, 2019, the wife filed a postjudgment motion. Thereafter, on June 27, 2019, the trial court entered an order modifying the divorce judgment, in pertinent part, by ordering the husband to pay child support in the amount of $663 per month. On August 6, 2019, the wife filed her notice of appeal.
Facts
The parties were married on February 27, 2007. The parties had 3 children together, who were ages 12, 11, and 8 on the final day of the trial. The wife testified that, after the husband filed his divorce complaint, she discovered that he had been having an affair leading up to the time the complaint was filed. According to the wife, the husband had been verbally and physically abusive to her. The husband, on the other hand, denied being verbally or physically abusive and testified that the wife had been argumentative and that she had been physically violent on occasion.
The evidence indicated that the husband had earned $118,000 in 2018, having worked some overtime on the weeks when he did not have the children. The wife, on the other hand, had earned approximately $18,000 working as a pre-kindergarten teacher's aide at the school that the parties' children attended. The wife testified that her contract with the school board had not been renewed. The wife does not have a college degree.
The wife testified that she had been the primary caregiver of the children during the marriage. At the pendente lite hearing, the wife testified that, since the parties had separated, the husband had spent more time with the children than he had in the past. The husband testified that, as of the time of the trial, there was "pretty much" no opportunity for him to work overtime. The husband testified that, based on his work schedule at the time of the trial, his yearly earnings would be approximately $75,000 to $80,000. The husband testified that he spends time with the children doing activities such as hunting and coaching their sports teams. During the parties' separation, the children spent alternating weeks with each party. The older two children testified that they desired to continue that arrangement, and the youngest child testified that he was fine with that arrangement.
The parties owned three parcels of real property. Two of the parcels –- the marital home, which was situated on 13 acres, and a separate 77-acre parcel -- had been owned by the husband before the parties' marriage. The husband testified that he had not paid down the debt associated with the marital home during the marriage because he had had to refinance the property during an economic recession. He testified that there was no debt associated with the 77-acre parcel before the parties' marriage, but, he said, that parcel had been included in the refinancing of the marital home. The husband was awarded the marital home and the 77-acre parcel; the wife was awarded a 67-acre parcel.
The husband's most recent appraisal on the marital home indicated that it is worth $210,000. An appraisal on the 77-acre parcel indicated that that parcel is worth $205,000; its tax-assessed value is $161,700. The debt associated with the marital home is approximately $84,266.96. The third parcel of real property -- the 67-acre parcel -- was purchased during the marriage. An appraisal on the 67-acre parcel indicated that it is worth $77,000; it has a tax-assessed value of $111,000. The husband testified that he agreed with the appraiser regarding the values of the 77-acre parcel and the 67-acre parcel, but the wife testified that she believed the tax-assessed values were correct. At the time of the trial, the debt on the 67-acre parcel was approximately $27,529.33. The husband was ordered to pay the outstanding indebtedness associated with all three parcels of real property.
The husband testified that the parties' monthly expenses included a house payment in the amount of $1,400, an electricity bill of between $200 to $400, television expenses in the amount of $90, a cellular-telephone bill in the amount of $160, and wireless-Internet charges in the amount of $50. The parties had also had a payment on the 67-acre parcel of property, a tractor payment, and sports expenses for the children.
Discussion
I. Alimony and Division of Property
On appeal, the wife argues that the trial court erred by failing to award her alimony and by awarding the husband a greater portion of the parties' real property.
A.
With regard to alimony, we note that the trial court did not make specific findings of fact on that issue, and the wife did not challenge in her postjudgment motion the sufficiency of the evidence as to that issue. "[I]n a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review." New Props., L.L.C. v. Stewart, 905 So. 2d 797, 801–02 (Ala. 2004). Accordingly, we cannot consider the wife's argument regarding the issue of alimony.
B.
With regard to the property division, this court has explained:
"In dividing property and awarding alimony, a trial court should consider ‘the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; [the parties'] station[s] in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the cause of the divorce.’ Russell v. Russell, 777 So. 2d 731, 733 (Ala. Civ. App. 2000). Also, a trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case. Golden v. Golden, 681 So. 2d 605 (Ala. Civ. App. 1996) ; and Brewer v. Brewer, 695 So. 2d 1 (Ala. Civ. App. 1996). ‘A property division that favors one party over another does not necessarily indicate an abuse of discretion.’ Fell v. Fell, 869 So. 2d 486, 496 (Ala. Civ. App. 2003) (citing Dobbs v. Dobbs, 534 So. 2d 621 (Ala. Civ. App. 1988) )."
Turnbo v. Turnbo, 938 So. 2d 425, 430 (Ala. Civ. App. 2006).
On appeal, the wife does not challenge the propriety of the trial court's division of property as a whole. Instead, she focuses solely on the division of the parties' real property. Therefore, the issue whether the trial court erred in its overall division of property is waived. See, e.g., Horne-Ballard v. Ballard, [Ms. 2180194, Jan. 24, 2020] ––– So. 3d –––– (Ala. Civ. App. 2020).
Indeed, she specifically states that she "cannot say that the trial court did not make an equitable division of the parties' personal property and the husband's retirement account." Wife's brief at p. 44.
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Specifically, with regard to the real property, the wife argues that, although the marital home and the 77-acre parcel were acquired by the husband before the marriage, the trial court should have considered those properties to be marital property because, she says, they were regularly used for the common benefit of the parties during the marriage and because she was added to the deeds for both properties. We note, however, that the trial court did not state in its judgment that it did not consider those properties to be marital property, and we cannot assume that it did not consider them as such. Moreover, even considering those properties to be marital property, we cannot conclude that the division of the real property was inequitable.
The wife maintains that the division of the real property was inequitable because, she says, the husband received real property that had a larger percentage of equity. Considering the husband's most recent appraisals of the marital home and the 77-acre parcel, those 2 parcels of real property, which he was awarded, are valued jointly at $415,000 ($210,000 + $205,000). The wife testified that the 67-acre parcel that she was awarded has a value of $111,000. The husband was ordered to pay the debt on all three properties, a total amount of $111,796.29 ($84,266.96 (marital home and 77-acre parcel) + $27,529.33 (67-acre parcel)). Therefore, with regard to the marital home and the 77-acre parcel that the husband was awarded, the husband received real property with a net equity of $330,733.04. With regard to the 67-acre parcel that was awarded to the wife, because the husband was ordered to pay the indebtedness associated with that parcel, the wife was awarded a parcel with a net equity of $111,000.
The husband clearly received a greater portion of the real property. However, as noted previously, "a trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case." Turnbo, 938 So. 2d at 430. Considering the fact that the husband owned the marital home and the 77-acre parcel that he was awarded before the parties' marriage; the fact that the mortgage on the marital home had not been paid down during the marriage but, rather, had been refinanced during an economic recession to include the 77-acre parcel; the fact that the wife was awarded the 67-acre parcel of real property that had been purchased during the marriage; and the fact that the husband was required to pay all the debt associated with all three parcels, we cannot conclude that the trial court exceeded its discretion in dividing the parties' real property.
II. Custody
The wife argues that the husband should not have been awarded joint physical custody of the children because, she says, he committed domestic violence against her. Section 30-3-131, Ala. Code 1975, provides:
"In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence. Notwithstanding the provisions regarding rebuttable presumption, the judge must also take into account what, if any, impact the domestic violence had on the child."
We note, however, that the wife did not argue the applicability of § 30-3-131 until she filed her postjudgment motion. Therefore, the trial court was not required to consider that argument. See J.S. v. J.C., 219 So. 3d 666, 673 (Ala. Civ. App. 2016) ("Although the father notes on appeal that he alleged in his postjudgment motion, among other things, a due-process violation based on the juvenile court's failure to allow him to file a sworn deposition, the juvenile court was not required to consider that new legal argument raised for the first time in a postjudgment motion."). Moreover, the husband denied having physically abused the wife and also testified that the wife had been physically violent on occasion. Under the ore tenus rule, the trial court could have believed the husband's testimony instead of the testimony of the wife. See, e.g., Shewbart v. Shewbart, 64 So. 3d 1080, 1089 (Ala. Civ. App. 2010) ("On appeal from ore tenus proceedings, this court presumes that the trial court properly found the facts necessary to support its judgment and prudently exercised its discretion."). Based on the foregoing, we cannot conclude that the trial court erred in its award of custody.
III. Child Support
The wife finally argues that the trial court's award of child support was in error. She specifically argues that the trial court incorrectly calculated the husband's child-support obligation before it decided to deviate from the calculated amount. "Although the trial court expressed that it was deviating from the [Rule 32, Ala. R. Jud. Admin.,] child-support guidelines, the trial court has a mandatory duty to first correctly determine the basic monthly child-support obligation of the husband in order to ascertain the extent of its deviation." Sutchaleo v. Sutchaleo, 228 So. 3d 475, 479 (Ala. Civ. App. 2017)
The wife argues that the trial court should not have used the gross monthly income that the husband included on his CS-41 form, which translates to a yearly income of $88,314.72. She points out that the husband earned $118,000 in 2018. We note, however, that the husband testified at the trial that he no longer had the opportunity to work overtime and that he would earn between $75,000 and $80,000 in 2019. Considering the ore tenus standard of review, see, e.g., Shewbart, 64 So. 3d at 1089, the trial court could have believed the husband's testimony; therefore, we cannot conclude that the trial court exceeded its discretion in using the husband's gross income reflected on his CS-41 form.
The wife also argues that the trial court erred by failing to include her child-care expenses in calculating the husband's child-support obligation. The wife testified at the trial that she had been employed as a pre-kindergarten teacher's aide at the school that the parties' children were attending. She submitted a CS-41 form on April 19, 2018, indicating that she did not incur any child-care costs. The wife testified, however, that her contract with the school board had not been renewed. In the wife's postjudgment motion and at the postjudgment hearing, the wife's attorney argued that the wife had obtained a new job at a Child Development Center and that, because she no longer worked at the children's school, she would incur child-care expenses for the children. The trial court instructed the wife's attorney to submit an updated CS-41 form. On June 19, 2019, the wife submitted an updated CS-41 form that listed her income as $1,465 per month and her child-care expenses as $260 per month.
In its order on the wife's postjudgment motion, the trial court specifically stated:
"That the [husband] shall pay child support to the [wife] in the amount of $663.00 MONTHLY.... This is a deviation from Alabama Rule of Judicial Administration 32 pursuant to subsection (1)(a) of that rule because the parties share ‘physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court.’ A copy of the CS-42 [form] prepared by the court will be filed simultaneously herewith that demonstrates the Rule 32 amount. The Court took the amount the [husband] would have to pay pursuant to Rule 32, divided it in half because the parties share an equal amount of time with the children. This may not be the perfect way to calculate child support in shared physical custody situations, but ‘the Guidelines "do not specifically address the problem of establishing a support order in joint legal custody situations," although such custodial arrangements, as we have noted, "may be considered by the court as a reason for deviating from the guidelines,"
especially "if physical custody is jointly shared by the parents." Comment, Rule 32, Ala. R. Jud. Admin.’ Boatfield v. Clough, 895 So. 2d 354[, 357] (Ala. Civ. App. 2004)."
The trial court used the wife's updated income in its CS-42 calculation; however, it did not include any child-care expenses. Rule 32(B)(8), Ala. R. Jud. Admin., provides, in part: "Child-care costs, incurred on behalf of the children because of employment or job search of either parent, shall be added to the ‘basic child-support obligation.’ " We conclude that the trial court failed to comply with Rule 32 by not including the wife's child-care expenses in calculating the husband's monthly child-support obligation.
As noted previously, in Sutchaleo, this court explained that, even if a trial court expresses in its judgment that it is "deviating from the child-support guidelines, the trial court has a mandatory duty to first correctly determine the basic monthly child-support obligation of the husband in order to ascertain the extent of its deviation." 228 So. 3d at 479. In Sutchaleo, this court concluded that the trial court in that case had failed to use the correct income for the husband in calculating the husband's child-support obligation before deciding to deviate from the calculated amount. 228 So. 3d at 480. Therefore, this court reversed the trial court's judgment and remanded the cause for the trial court to calculate the husband's child-support obligation in compliance with Rule 32 and to reconsider its child-support award. Id.
In this case, the trial court specifically stated that it had calculated the amount of the husband's child-support obligation, and then divided it in half because of the joint-physical-custody award; however, as explained previously, the initial calculation of child support was incorrect because the trial court failed to include the child-care expenses incurred by the wife. In accordance with Sutchaleo, we reverse the trial court's judgment as to child support and remand the cause for the trial court to recalculate the husband's child-support obligation by considering and including the wife's child-care expenses in its recalculation, as required by Rule 32(B)(8). 228 So. 3d at 480. "If the trial court decides to deviate from the basic monthly child-support obligation as established by application of the child-support guidelines, the trial court shall comply with Rule 32(A), Ala. R. Jud. Admin., by entering a written finding on the record indicating why application of the child-support guidelines would be unjust or inappropriate." Id.
Based on our disposition of this issue, we pretermit the wife's remaining argument with regard to child support.
Conclusion
Based on the foregoing, the trial court's award of child support is reversed, and the cause is remanded with instructions for the trial court to recalculate the husband's child-support obligation in accordance with this opinion. The judgment is affirmed in all other respects.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Edwards and Hanson, JJ., concur.
Thompson, P.J., concurs in the result, without writing.
Donaldson, J., recuses himself.