Merrick v. Merrick

Brian James Merrick v. Brandi Rhodes Merrick

No. 2200188

Alabama Court of Civil Appeals

October 29, 2021

Appeal from Autauga Circuit Court (DR-18-900070)

EDWARDS, JUDGE

Brian James Merrick ("the husband") appeals from a judgment entered by the Autauga Circuit Court ("the trial court") in a divorce proceeding between him and Brandi Rhodes Merrick ("the wife"). We dismissed a previous appeal by the husband as being from a nonfinal judgment. See Merrick v. Merrick, 321 So.3d 1268 (Ala. Civ. App. 2020).

The husband and the wife married on July 17, 2010, and separated in February 2018. On April 11, 2018, the wife filed a petition in the trial court, seeking a legal separation from the husband. Thereafter, the husband filed an answer and a counterclaim for a divorce, and the wife filed a reply to the husband's counterclaim. The wife subsequently amended her pleadings to also seek a divorce. Subsequently, the husband and the wife filed a complaint in the divorce proceeding asserting claims against Ben Milam and U Park U Sell, LLC ("UPUS"), an Alabama limited-liability company of which Milam is a member, alleging breach of a purported loan agreement and fraud.

The trial court conducted ore tenus proceedings on August 6 2019, and November 6, 2019. On December 26, 2019, the trial court entered an order purporting to divorce the husband and the wife, to divide their marital property, and to award the wife "periodic, rehabilitative alimony" of $2, 800 per month for 60 months. The December 2019 order also included a judgment against Milam for $35, 000 in compensatory damages and $35, 000 in punitive damages but failed to adjudicate any claim as to UPUS.

The husband filed a purported postjudgment motion, which he subsequently amended, requesting that the trial court modify its property division and arguing, in part, that the alimony award to the wife was not supported by the evidence and exceeded his ability to pay. On January 17, 2020, the husband filed a notice of appeal to this court, see Merrick, supra, which divested the trial court of jurisdiction to rule on the husband's purported postjudgment motion.^[1] See, e.g., Horton v. Horton, 822 So.2d 431, 434 (Ala. Civ. App. 2001)(noting that an appeal from an interlocutory order divests the trial court of jurisdiction to act except in matters collateral to the appeal).

On February 10, 2020, the wife filed a response to the husband's purported postjudgment motion, and the trial court held a hearing on that motion. The following day the trial court purported to enter an order making certain adjustments to the December 2019 order, specifically as to the property division between the husband and the wife, but denying all other relief requested by the husband. The February 11, 2020, order was a nullity. See Horton, supra.

As noted above, on September 11, 2020, this court dismissed the husband's appeal as being from a nonfinal judgment, see Merrick, supra. On November 4, 2020, the husband and the wife filed a joint motion to sever their claims against Milam and UPUS "so the parties can proceed in a separate, severed action to litigate those claims to finality."^[2] The following day, the trial court entered an order granting the motion to sever.

On December 2, 2020, the trial court entered a judgment, based on the ore tenus proceedings conducted on August 6, 2019, and November 6, 2019, divorcing the husband and the wife, dividing their marital property, and awarding the wife "periodic, rehabilitative alimony" of $2, 800 per month for 60 months. The trial court made no findings in the December 2020 judgment regarding the award of alimony.

On December 3, 2020, the husband filed a postjudgment motion requesting that the trial court modify its property division and arguing, in part, that the alimony award to the wife was not supported by the evidence, that the trial court had improperly considered his military-disability income in making the alimony award, and that the award exceeded his ability to pay. The trial court summarily denied the husband's postjudgment motion. On December 7, 2020, the husband filed a notice of appeal to this court.

The husband argues on appeal that the trial court erred by awarding the wife alimony and, alternatively, by concluding that he had the ability to pay what he characterizes as "an amount higher than [he] can fairly pay on a consistent basis." In the husband's appellate brief, he discusses precedents regarding various factors that a trial court must consider in making an alimony award, including the pertinent standards for (1) periodic alimony, see Shewbart v. Shewbart, 64 So.3d 1080, 1087-88 (Ala. Civ. App. 2010), which addresses whether, based on the recipient spouse's circumstances, that spouse may be in need of "regular installment payments made from one spouse to another to enable the recipient spouse, to the extent possible, to maintain his or her standard of living as it existed during the marriage," id. at 1087, and (2) rehabilitative alimony, which is intended to "allow[] a spouse time to begin (or to resume) supporting himself or herself," Enzor v. Enzor, 98 So.3d 15, 21 (Ala. Civ. App. 2011), i.e., to allow the recipient spouse "time to re-establish a self-supporting status," generally through additional education or training. Jeffcoat v. Jeffcoat, 628 So.2d 741, 743 (Ala. Civ. App. 1993), overruled on other grounds by Crenshaw v. Crenshaw, 816 So.2d 1046 (Ala. Civ. App. 2001). This court has described rehabilitative alimony as a "subclass of periodic alimony," Enzor, 98 So.3d at 21, but it has been acknowledged that periodic alimony and rehabilitative alimony are intended to serve distinct purposes. See Damrich v. Damrich, 178 So.3d 872, 880 (Ala. Civ. App. 2014) ("The wife's second issue on appeal is whether the circuit court erred by failing to award periodic alimony in an amount sufficient to allow her to enjoy the same standard of living that she had enjoyed during the marriage. The circuit court awarded the wife rehabilitative alimony in the amount of $2, 500 for 24 months. Rehabilitative alimony is a subclass of periodic alimony. ... The purpose of rehabilitative alimony is to allow a spouse to begin or to resume supporting himself or herself."); see also id. at 883 (Thompson, P.J., concurring in part and dissenting in part); Enzor, 98 So.3d at 23 (Moore, J., concurring in part and dissenting in part).

The issue of alimony in the present case is governed by Ala. Code 1975, § 30-2-57, which is titled "Rehabilitative or periodic alimony" and which applies to "actions for divorce ... filed on or after January 1, 2018." Ala. Code 1975, § 30-2-58. Section 30-2-57 provides, in pertinent part:

"(a) Upon granting a divorce or legal separation, the court shall award either rehabilitative or periodic alimony as provided in subsection (b), if the court expressly finds all of the following:

"(1) A party lacks a separate estate or his or her separate estate is insufficient to enable the party to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage.

"(2) The other party has the ability to supply those means without undue economic hardship.

"(3) The circumstances of the case make it equitable.

"(b) If a party has met the requirements of subsection (a), the court shall award alimony in the following priority:

"(1) Unless the court expressly finds that rehabilitative alimony is not feasible, the court shall award rehabilitative alimony to the party for a limited duration, not to exceed five years, absent extraordinary circumstances, of an amount to enable the party to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage.

"(2) In cases in which the court expressly finds that rehabilitation is not feasible, a good-faith attempt at rehabilitation fails, or good-faith rehabilitation only enables the party to partially acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall award the party periodic installments of alimony for a duration and an amount to allow the party to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage as provided in subsection (g).

"....

"(d) In determining whether a party has a sufficient separate estate to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall consider any and all relevant evidence, including all of the following:

"(1) The party's own individual assets.

"(2) The marital property received by or awarded to the party.

"(3) The liabilities of the party following the distribution of marital property.

"(4) The party's own wage-earning capacity, taking into account the age, health, education, and work experience of the party as well as the prevailing economic conditions.

"(5) Any benefits that will assist the party in obtaining and maintaining gainful employment.

"....

"(7) Any other factor the court deems equitable under the circumstances of the case.

"(e) In determining whether the other party has the ability to pay alimony, the court shall consider any and all evidence, including all of the following:

"(1) His or her own individual assets, except those assets protected from use for the payment of alimony by federal law.

"(2) The marital property received by or awarded to him or her.

"(3) His or her liabilities following the distribution of marital property.

"(4) His or her net income.

"(5) His or her wage-earning ability, considering his or her age, health, education, professional licensing, work history, family commitments, and

...