Marshall v. Marshall

168 So.3d 52

Cedric A. MARSHALL

v.Lisa Lashonda MARSHALL.

2130220.

Court of Civil Appeals of Alabama.

Nov. 21, 2014.

Anthony J. Bishop, Evergreen, for appellant.

Submitted on appellant's brief only.

Opinion

PER CURIAM.

Cedric A. Marshall (“the husband”) appeals from a judgment of the Monroe Circuit Court (“the trial court”) dissolving his marriage to Lisa Lashonda Marshall (“the wife”) and challenges the provisions of that judgment awarding the wife (1) periodic alimony and (2) $7,000 as part of the division of the parties' property. We affirm.

In 2012, the wife sued the husband for a divorce, and the husband asserted a counterclaim for a divorce. Before trial, the parties reached an agreement regarding all issues except (1) whether the wife should be awarded periodic alimony and, if so, how much; (2) how the parties' property should be divided; and (3) how responsibility for the payment of their debts should be allocated. The trial court subsequently received evidence ore tenus regarding those issues at a bench trial.

The record indicates the following. The parties married in 1996 and have two minor children (“the children”). In March 2012, the parties separated; the wife and the children moved from the parties' house (“the marital residence”) to a house the wife had rented, while the husband continued to live in the marital residence.

The wife pays rent in the amount of $600 per month. Both parties testified that the value of the marital residence was approximately $136,000 and that it was subject to approximately $108,000 in mortgage indebtedness. The wife testified that the mortgage payments were $816 per month, while the husband testified that they were $830 per month. Aside from the marital residence, the only specific item of marital property identified in the record is a 2008 Nissan Altima automobile. The record does not indicate the value of any of the marital property except the marital residence.

The wife worked during the earlier part of the marriage but stopped in order to attend a technical college. She first earned an associate's degree in cosmetology and later earned an associate's degree in child care. For a period after she earned her cosmetology degree, she was a licensed cosmetologist; however, she testified that she had not maintained her cosmetologist's license and that she would have to complete courses in cosmetology and pass a test in order to reinstate that license. The wife earned her degree in child care shortly before she initiated the divorce action. At trial, on direct examination, she testified that, after earning her degree in child care, she had applied for work with several day-care facilities and a clothing company; however, on cross-examination, she testified that she had applied for work with the clothing company only. She testified that her being responsible for caring for the children had made it harder for her to find employment, while the husband testified that the wife's responsibility for caring for the children was no obstacle to her finding employment because, he said, he and his family could care for the children while the wife worked. The wife was unemployed when the action was tried.

The parties agreed that the wife would have primary physical custody of the children and that the husband would have visitation. The parties also agreed that, for purposes of determining the husband's child-support obligation, the husband's total gross income from all sources was $5,332 per month and that the wife should be imputed with the amount of income she could earn if she were employed and earning the federal minimum wage. The parties further agreed that the husband's child-support obligation under Rule 32, Ala. R. Jud. Admin., was $933 per month.

The husband's total gross income of $5,332 included disability benefits in the amount of $1,794 per month paid to him by the Department of Veterans Affairs (“the VA”) for what he characterized as a “mild grade” of post-traumatic stress disorder (“PTSD”) caused by his military service. The husband is employed as a corrections officer at a state correctional facility, and he testified that, despite his PTSD, he is fully capable of performing his duties as a corrections officer. The husband's net income from his employment as a corrections officer is $2,383 per month. His VA disability benefits are not taxable. Thus, his total net monthly income from all sources is $4,177. Before he obtained his employment as a corrections officer, the husband had been temporarily unemployed and had commenced a Chapter 13 bankruptcy proceeding; however, that bankruptcy proceeding had been dismissed before the present action was tried. The husband did not lose possession of the marital residence during that bankruptcy proceeding and was still in possession of it when this action was tried.

The wife requested that the trial court award her the marital residence and periodic alimony in an amount equal to the monthly mortgage payment, which, as noted above, she testified was $816 per month. The wife did not request that the trial court award her periodic alimony with which to pay any of her other postdivorce living expenses. The trial court had before it evidence indicating that, if the wife were not awarded the marital residence, she would have to pay rent of $600 per month for housing for her and the children. The record does not contain any evidence indicating the nature or amount of any of her other postdivorce living expenses.

The husband testified that his postdivorce monthly expenses would include the $933 per month in child support the parties had agreed he would pay and the mortgage payment on the marital residence, which, as noted above, he testified was $830 per month. He further testified that, including those two monthly payments, his monthly expenses would total $2,930. In addition, he testified that the parties owed a dentist $357, owed one hospital $300, owed another hospital $9,000, and owed a finance company $9,000. However, the record does not indicate the terms pursuant to which the parties were required to pay those debts (“the miscellaneous debts”), which totaled $18,657.

Each party accused the other of infidelity, but neither introduced any evidence establishing that the other had been unfaithful. Moreover, both parties stipulated that the divorce should be granted on the ground of incompatibility.

After the trial, the trial court entered a judgment divorcing the parties. In accordance with the agreement reached by the parties, the judgment divorced the parties on the ground of incompatibility, granted the wife primary physical custody of the children, granted the husband visitation with the children, and ordered the husband to pay child support in the amount of $933 per month. The judgment resolved the disputed issues by awarding the husband the marital residence; by awarding the wife $7,000 in lieu of a share of the parties' equity in the marital residence (“the $7,000 award”), which the husband was to pay within 30 days; by ordering the husband to pay the monthly mortgage payments; by awarding the wife periodic alimony in the amount of $600 per month; by ordering the husband to pay the miscellaneous debts; by awarding each party the personal property in his or her possession; and by awarding the wife the 2008 Nissan Altima automobile.

The husband timely filed a postjudgment motion in which he challenged the award of periodic alimony and the $7,000 award. Specifically, he asserted that the award of periodic alimony was not supported by substantial evidence because, he said, the wife had failed to prove (1) the parties' standard of living during the marriage, (2) all the monthly expenses she would incur in order to maintain that standard of living after the divorce, (3) her inability to maintain that standard of living after the divorce using her own assets, and (4) the husband's ability to pay periodic alimony. The husband also asserted that any award of alimony should have been an award of rehabilitative alimony only. Finally, the husband asserted that the $7,000 award was inequitable because, he said, he did not have the ability to pay it.

Thereafter, the trial court denied the husband's postjudgment motion in an order stating, in pertinent part:

“[T]he Court finds as follows:

“The [marital residence] was awarded to the husband and the husband was [made] responsible for making the mortgage payments.

“The equity in the [marital residence] was $28,000.00. The husband was ordered to pay to the wife $7,000.00 as a property settlement.

“The wife rented a residence so that she and the children would have a place to live. The rent was $600.00 per month.

“According to the child support guidelines the [husband] was to pay $933.00 [per month in] child support.

“The husband's [gross] income is $5,332.00 per month. After paying the wife $1,533.00,^{[ 1 ]} the husband has $3,799.00 [of gross monthly income], less any income taxes owed on his monthly income.

“Considering all of the circumstances, the Court finds the award of alimony and the division of property is fair and equitable as it affects both parties.”

Following the denial of his postjudgment motion, the husband timely appealed.

“The well-established standard of review is that a divorce judgment based on ore tenus evidence is presumed correct. See Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). Such a judgment will be reversed only where it is unsupported by the evidence so as to be plainly and palpably wrong. Id. at 733. On appeal the division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. See O'Neal v. O'Neal, 678 So.2d 161 (Ala.Civ.App.1996). A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681

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