Personnel v. Personnel

Wesley Person v. Lillian Person

2150225

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2016-2017

October 21, 2016

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Crenshaw Circuit Court

(DR-13-49)

MOORE, Judge.

Wesley Person ("the husband") appeals from a divorce judgment entered by the Crenshaw Circuit Court ("the trial court") to the extent that it ordered him to pay child support and alimony to Lillian Person ("the wife"). He also challenges a pendente lite order entered during the pendency of the divorce proceedings. We affirm the trial court's judgment in part and reverse it in part.

Procedural History

On August 29, 2013, the wife filed a complaint seeking a divorce from the husband. On September 4, 2013, the trial court entered an order providing, among other things, that the husband pay pendente lite spousal support and child support to the wife. On April 8, 2014, the husband answered the complaint and counterclaimed for a divorce. On February 17, 2015,the wife amended her complaint, adding allegations that the husband had committed adultery.

After a trial, the trial court entered a judgment on July 31, 2015, finding that the husband had committed adultery during the parties' marriage, dividing the parties' property, ordering the husband to pay $1,000 per month in alimony, awarding the wife sole physical and legal custody of the parties' two minor children, and ordering the husband to pay $2,500 per month in child support. With regard to child support, the trial court specifically stated:

"As to present, and future child support, the provisions of Rule 32, [Ala. R. Jud. Admin.,] havenot been followed in the award of child support herein made. This court finds that the application of said guidelines in this case would be manifestly unfair or inequitable because the parties live on an undetermined amount of income."

The trial court also stated:

"While the Court finds that the [husband] is in fact $320,000.00 in arrears in respect to child support and spousal support, the court defers, at this time, to make any ruling in respect to the payment of such arrearage. Provisions for the payment of the arrearage will depend upon the manner in which the parties comply with all of the other provisions in this order. A decision will be entered by this court as to the payment of the above arrearage after the court has determined the manner in which each party has complied with all the other provisions in this order."

On August 27, 2015, the husband filed a postjudgment motion. On October 26, 2015, the postjudgment motion was denied. On December 7, 2015, the husband filed his notice of appeal.

Facts

The evidence indicated that the parties had been married over 20 years at the time of the trial. During the marriage, the husband had played for the National Basketball Association ("the NBA") for 11 years and had earned $40 million. At the time of the trial, the parties had a Prudential Annuities Service Account valued at $2.2 million and a Polaris PlatinumII Awards Annuity with an estimated value of $91,000; those accounts were awarded to the wife. The husband also had a pension through the NBA that he testified was valued at $711,000; that pension was awarded to the husband. The parties also owned multiple homes, farmland, a community center, a skating rink, a bowling alley, and approximately 20 vehicles.

The evidence also indicated that the wife does not have a college degree and that she had never worked during the marriage. The evidence indicated further that the parties' income leading up to the time of the separation had been solely from their approximately $5 million in investments. The wife testified that the husband had spent over $1 million during the parties' separation. She further testified that she had heard that the husband had secret accounts but that she had been unable to locate them.

Finally, there was evidence presented indicating that the husband had committed adultery, and the husband admitted that he had failed to pay any pendente lite child support or alimony for over two years during the pendency of this case.

Discussion

I.

On appeal, the husband first argues that the September 4, 2013, pendente lite order is void and is, therefore, due to be set aside. Therefore, he argues, his arrearage that accrued during the pendency of the litigation is due to be set aside.

In Morgan v. Morgan, 183 So. 3d 945, 966 (Ala. Civ. App. 2014), this court explained:

"A pendente lite order is replaced by the entry of a final judgment. Reid v. Reid, 897 So. 2d 349, 355 (Ala. Civ. App. 2004) ('A pendente lite order is one entered during the pendency of litigation, and such an order is generally replaced by a final judgment.'). Thus, a pendente lite order is not made final by the entry of a final judgment such that it may be appealed as a part of the final judgment. Rather, the review of a pendente lite support order 'is by way of mandamus, inasmuch as it is not a final [judgment].' Sizemore v. Sizemore, 423 So. 2d 239, 241 (Ala. Civ. App. 1982). See alsoAshbee v. Ashbee, 431 So. 2d 1312, 1313 (Ala. Civ. App. 1983) ('As to the wife's claim that alimony pendente lite should have been awarded, we note that the proper method of seeking appellate review of such an action on the part of the trial court is through a petition for a writ of mandamus. ... Since this issue has been raised improperly, we are unable to consider it [in an appeal of a final divorce judgment].') (citing Sizemore v. Sizemore, supra). Accordingly, the husband may not raise issues pertaining to the propriety of the ... pendente lite support order in th[e] appeal of the final divorce judgment."

Similarly, in the present case, review of the September 4, 2013, order could have been properly obtained by filing a petition for a writ of mandamus. Because this issue has been raised improperly, "we are unable to consider it" in the appeal from the divorce judgment in this case. Morgan, 183 So. 3d at 966.

II.

The husband next argues that the trial court's judgment is not final because, he says, the trial court declined to provide for the manner of payment of the arrearage accruing from the pendente lite order. In Johnson v. Johnson, 191 So. 3d 164, 171 (Ala. Civ. App. 2015), this court held:

"If a final judgment is entered while a pendente lite alimony arrearage remains unpaid, the final judgment relieves the payor spouse from paying the pendente lite alimony arrearage, unless payment of the pendente lite alimony arrearage is ordered in the final judgment. This is so because an award of pendente lite alimony is interlocutory in nature and a subsequent final judgment can abrogate a former interlocutory order."

In the present case, the trial court clearly set forth the amount of arrearage owed by the husband. Compare D.M.P.C.P. v. T.J.C., 91 So. 3d 75, 76 (Ala. Civ. App. 2012) (noting that the trial court's "failure to adjudicate theamount of the father's child-support arrearage render[ed] the ... order from which the mother has appealed nonfinal"). A determination of a party's arrearage is "the equivalent of a monetary judgment for that amount." Henderson v. Henderson, 680 So. 2d 373, 374 (Ala. Civ. App. 1996). That judgment may be collected by "'any ... process for collection of the judgment, such as garnishment.'" State ex rel. Walker v. Walker, 58 So. 3d 823, 827-28 (Ala. Civ. App. 2010) (quoting Leopold v. Leopold, 955 So. 2d 1031, 1036 (Ala. Civ. App. 2006)). Therefore, we conclude that the divorce judgment is final so as to support the present appeal.

III.

The husband next argues that the trial court erred in awarding child support without receiving evidence as to the parties' respective incomes or the needs of the children.

In Morgan, 183 So. 3d at 961-62, this court reasoned:

"'"'This court has held that if the record does not reflect compliance with Rule 32(E)[, Ala. R. Jud. Admin.] (which requires the filing of "Child Support Obligation Income Statement/Affidavit" forms (Forms CS-41) and a "Child Support Guidelines" form (Form CS-42)), and if child support is made anissue on appeal, this court will remand (or reverse and remand) for compliance with the rule. SeeMartin v. Martin, 637 So. 2d 901, 903 (Ala. Civ. App. 1994). On the other hand, this court has affirmed child-support awards when, despite the absence of the required forms, we could discern from the appellate record what figures the trial court used in computing the child-support obligation. See, e.g., Dunn v. Dunn, 891 So. 2d 891, 896 (Ala. Civ. App. 2004); Rimpf v. Campbell, 853 So. 2d 957, 959 (Ala. Civ. App. 2002); and Dismukes v. Dorsey, 686 So. 2d 298, 301 (Ala. Civ. App. 1996). Nevertheless, without the child-support-guidelines forms, it is sometimes impossible for an appellate court to determine from the record whether the trial court correctly applied the guidelines in establishing or modifying a child-support obligation. SeeHorwitz v. Horwitz, 739 So. 2d 1118, 1120 (Ala. Civ. App. 1999).'"

"'Harris v. Harris, 59 So. 3d 731, 736-37 (Ala. Civ. App. 2010) (quoting Hayes v. Hayes, 949 So. 2d 150, 154 (Ala. Civ. App. 2006)).'

"Wellborn v. Wellborn, 100 So. 3d 1122, 1126 (Ala. Civ. App. 2012).

"This court is unable to determine from the record the manner in which the trial court determined the amount of the parties' gross incomes.

The trial court is not bound by the income figures advanced by the parties, and it has discretion in determining a parent's gross income. However, '"[t]his court cannot affirm a child-support order if it has to guess at what facts the trial court found in order to enter the support order it entered...."' Willis v. Willis, 45 So. 3d

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