Goldman v. Goldman

197 So.3d 487

Sebastian GOLDMAN

v.Senta White GOLDMAN.

2140488.

Court of Civil Appeals of Alabama.

Nov. 6, 2015.

Charles H. Dunn of Boyd, Fernambucq, Dunn & Fann, P.C., Birmingham, for appellant.

William K. Bradford of Bradford Ladner, LLP, Mountain Brook; and Gary C. Young, Mountain Brook, for appellee.

On Application for Rehearing

THOMAS, Judge.

The opinion of September 11, 2015, is withdrawn, and the following is substituted therefor.

Sebastian Goldman (“the former husband”) and Senta White Goldman (“the former wife”) were divorced by a judgment (“the divorce judgment”) of the Jefferson Circuit Court (the trial court”) on July 29, 2011. The record indicates that the divorce judgment awarded the former wife sole physical custody of the parties' two minor children and ordered the former husband to pay $1,303.61 in monthly child support and $750 in monthly periodic alimony. The former wife was also awarded 35% of the former husband's military-retirement benefits upon his retirement. On March 6, 2013, the former husband filed a petition in the trial court seeking a downward modification of his child-support and alimony obligations, citing a material change in circumstances.¹ The former wife answered the petition on July 16, 2013.

On November 13, 2013, the former wife filed an amended answer seeking an award of an attorney fee and a counterclaim asserting, in pertinent part, that the former husband was in arrears in his child-support and alimony obligations and seeking a finding of contempt.² The former husband filed an answer to the counterclaim on November 25, 2013. The former wife amended her counterclaim on June 3, 2014, asserting that, although the former husband had retired from the military, she had not received the 35% of his military-retirement benefits that she had been awarded in the divorce judgment.

A trial was held on October 20, 2014, on the former husband's petition and the former wife's counterclaim, at which the trial court heard evidence ore tenus. At the trial, the former husband testified that when the divorce judgment was entered in 2011 he was on active duty in the Army and earned a monthly gross income $7,904.84. The former husband further testified, however, that he was medically discharged from the Army in October 2012 and that, after exhausting his accumulated leave, he began receiving military-retirement benefits in January 2013. The undisputed evidence presented indicated that the monthly amount that the former husband received was separated into $1,108.28 in taxable, military-retirement benefits and a monthly disability payment of $3,145.49 from the United States Department of Veterans Affairs (“the disability benefits”). The former husband also testified that he was currently employed by the City of Hueytown as a police officer and that his gross monthly income from that employment was $5,287 and that his net monthly employment income was $3,387. The former wife testified that she worked as a secretary with the Bessemer City School System; a Form CS–42 prepared by the trial court and included in the record indicates that her monthly gross income was $2,515.

The trial court entered a judgment on the claims asserted in both the former husband's petition and the former wife's counterclaim on October 28, 2014 (“the 2014 judgment”), that, in pertinent part, denied the former husband's petition to modify his child-support and alimony obligations, determined that the former husband had failed to pay $14,862.64 in alimony, ordered the former husband to pay $500 per month toward the alimony arrearage, and ordered the former husband to pay the former wife $12,000 in attorney fees. The trial court also found the former husband in civil and criminal contempt and sentenced him to 175 days in the Jefferson County jail; however, that sentence was suspended to allow the former husband the opportunity to purge himself of the contempt. The former wife filed a motion to alter, amend, or vacate the judgment on November 24, 2014; the former husband filed a postjudgment motion on November 25, 2014. After a hearing, the trial court entered an order on January 30, 2015, modifying the 2014 judgment by removing the criminal-contempt sentence of 175 days' incarceration.³ The trial court also determined that the former wife had not received the 35% of the former husband's military-retirement benefits that she had been awarded in the divorce judgment and awarded the former wife $387.80 per month from the former husband's military-retirement benefits and an accrued arrearage of $14,736.40. The former husband filed a timely notice of appeal to this court on March 13, 2015.

In his brief on appeal, the former husband argues that the trial court erred by denying his petition to modify alimony, by denying his petition to modify child support, and by finding him in contempt. The former husband also argues that the trial court miscalculated the amount of military-retirement benefits and the amount of past-due alimony that he owed to the former wife. Lastly, the former husband argues that the monthly amount he was ordered to pay toward the alimony arrearage and the amount of the attorney fees he was ordered to pay the former wife were excessive.

I. Calculation of Military–Retirement Benefits

Taking the former husband's issues out of turn, we first address whether the trial court miscalculated the amount of past-due military-retirement benefits that the former husband owed the former wife. The record indicates that the divorce judgment awarded the former wife 35% of the former husband's military-retirement benefits. In the 2014 judgment, the trial court awarded the former wife $14,736.40, representing payments due from August 2011 through September 2014 at $387.80 per month, plus accrued interest. The evidence presented at trial was undisputed that the former husband was not discharged from the Army until October 2012. The former husband argues that he did not begin to receive military-retirement benefits until January 2013; thus, according to the former husband, the former wife was due payments from January 2013 through September 2014, totaling $8,143.80. The former wife concedes that the trial court's calculation is erroneous; however, the former wife argues that the past-due military-retirement-benefit amount should be calculated from October 2012 through September 2014 and total $9,307.20. We therefore reverse this portion of the trial court's judgment and remand this cause for the trial court to determine the appropriate amount of past-due military-retirement benefits to award to the former wife.

II. Petition to Modify Alimony

“Periodic alimony and its subsequent modification are matters resting within the sound discretion of the trial court, and the trial court's judgment as to those issues will not be reversed absent a showing of an abuse of discretion. Tiongson v. Tiongson, 765 So.2d 643, 645 (Ala.Civ.App.1999).

“In Bray v. Bray, 979 So.2d 798 (Ala.Civ.App.2007), this court set forth the applicable standard of review as follows:

“ ‘ “Our standard of review when reviewing an appeal from a judgment granting or denying a requested modification of alimony is well settled.

“ ‘ “ ‘An obligation to pay alimony may be modified only upon a showing of a material change in circumstances that has occurred since the trial court's previous judgment, and the burden is on the party seeking a modification to make this showing....’

“ ‘ “Glover v. Glover, 730 So.2d 218, 220 (Ala.Civ.App.1998) (citation omitted).”

“ ‘Ederer v. Ederer, 900 So.2d 427, 428 (Ala.Civ.App.2004).

“ ‘ “Where a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong.”

“ ‘Sellers v. Sellers, 893 So.2d 456, 457–58 (Ala.Civ.App.2004).’

“979 So.2d at 800.”

Santiago v. Santiago, 122 So.3d 1270, 1278 (Ala.Civ.App.2013).

As our supreme court explained in Ex parte Billeck, 777 So.2d 105 (Ala.2000), veteran's disability benefits received in lieu of military-retirement benefits may not be considered as income of the obligor in determining an award of alimony.⁴ It is undisputed that the former husband receives the disability benefits in lieu of military-retirement benefits. Thus, the disability benefits must be excluded from the former husband's income for purposes of calculating his alimony obligation to the former wife. The former husband testified that he received $3,387 in net monthly income from the City of Hueytown. See Rieger v. Rieger, 147 So.3d 421, 431 (Ala.Civ.App.2013) (“For purposes of determining a spouse's ability to pay, and for purposes of calculating an appropriate amount of periodic alimony, the trial court should ordinarily use the spouse's net income as the starting point for these evaluations.”). He also received $1,108.28 per month in military-retirement benefits; however, we also note that the former wife was awarded 35%, or $387.80 per month, of the former husband's military-retirement benefits, leaving him $720.48 per month.⁵ The former husband further testified that his monthly expenses totaled $4,117; his monthly expenses were essentially unchallenged by the former wife. Considering that the former husband's available monthly income is $4,107.48 ($3,387 + $720.48 = $4,107.48), it appears that the former husband's monthly expenses exceed his available income. Thus, we conclude that the former husband demonstrated a material change in circumstances warranting a downward modification of his alimony obligation and that the trial court exceeded its discretion in denying his petition to modify his alimony obligation. Accordingly, that portion of the trial court's judgment is reversed, and the trial court is instructed to terminate the former husband's alimony obligation and to reserve jurisdiction to make a...