If Anybody Ever Needed Alimony . . .

It’s difficult to fathom what the trial court in Madison County was thinking when it decided to deny alimony to a wife in a 22-year marriage whose total income was about 13% what her husband made. Here’s the case: Seymour v Seymour, Case No. 2150915 (Ala. Civ. App. June 30, 2017).

The wife appealed, so it’s simple enough for the appeals court to have remedied this problem. Unfortunately, inexplicably, and let’s just say incorrectly, it affirmed the trial court, leaving in place a patently unjust result.

Julia Yi Seymour grew up in Germany; English was a second language for her. Her husband was retired from military service, during which he had taken time to pursue a college degree. He earned $163,000. The wife’s financial status was decidedly bleaker: after a checkered work history punctuated by numerous false starts, she was earning $7,680 per year as a jewelry sales trainee, and she received $13,300 from the husband’s military retirement, for a total income of $21,000.

The appeals court seemed to be focused on the fact that the wife had been awarded rehabilitative alimony and that she should have done a better job pursuing training and advancement during the period of rehabilitation. “Based on the evidence in the record, the trial court could have determined that the former wife could earn more income but that she was voluntarily underemployed as a result of her lack of good-faith rehabilitation efforts. Under those circumstances, the trial court could have determined that it would be inequitable to award the former wife periodic alimony.”

In his dissent, Judge Thompson pointed out that the wife left Germany for the U.S., apparently to marry the husband. Neither the majority nor Judge Thompson say so, but military spouses often are required to subordinate their career goals to those of their spouse because of the need to relocate on the direction or whim of the command structure.

In Judge Thompson’s words: “The wife presented evidence in which she asserted she would need $3,862 per month to live independently. The wife earns approximately $688 per month from her current employment, and, assuming that the husband pays her the military-retirement benefits as specified in the divorce judgment, she receives approximately $1,088 as her portion of those benefits. At the time of the hearing in this matter, the wife had been living for several years with one of the parties’ daughters, and she is unable to support herself independently.”

Lee’s note: The stated purpose of reserving periodic alimony, as the court did here, is to take a second look at the needs and earning capacities of the parties after the passage of time. Time has passed now, and things haven’t worked out well financially for the wife. After she left her home and traveled to a distant country and unfamiliar culture where she had sacrificed her career to that of her husband for two decades, one would think she would be entitled to the benefit of the doubt about rebuilding her finances after divorce. Unfortunately, neither the trial court nor the appeals court was willing to give her that.

Taking a Credit Against Child Support

Mr. and Mrs. Wojtala adopted two children in Hawaii. Hawaii offers a stipend to adopting parents to supplement their income, and that supplement followed the Wojtala family when they eventually made their way to Alabama. This case, Wojtala v Wojtala, Case No. 2150784 (Ala. Civ. App. June 23, 2017), deals with the treatment of that subsidy in the subsequent divorce of the parents.

The wife got custody of the children, and the trial court calculated the husband’s child support at $1594 per month. However, the trial court allowed the husband a credit against his child support of the adoption stipend in its entirety, leaving a net child support for him to pay of only $242 per month. The wife requested postmajority support for the parties’ two adopted children because of their special needs, but the trial court rejected this claim. The wife appealed.

With respect to the credit against child support, the appeals court recalled its earlier ruling in the case of W.R. v. C.R., 75 So.3d 159 (Ala. Civ. App. 2011). “This court noted that payments from a third-party source may be offset against a child-support obligation if those third-party payments are intended to be a substitute for the parent’s income, but that no offset was available if the third-party payments are intended to be a supplement to the parent’s or parents’ income. 75 So.3d at 166-67. The court also pointed out that, had the parents not divorced, the children would have had the benefit of both parents’ income together with the adoption subsidy. This court concluded that ‘the adoption subsidy is supplemental to the adoptive parents’ income, and, as such, the subsidy cannot serve as a credit against the father’s child-support obligation.’ W.R. v. C.R., 75 So.3d at 169.”

The appeals court reversed the trial court and remanded with instructions to the trial court to consider the adoption stipend a supplement to both parties’ incomes. This will of course mean a larger child support award for the husband to pay.

The appeals court reached different conclusions with respect to each child on the issue of postmajority support. The son was diagnosed with ADD and ADHD, but he was able to work after school, and the appeals court let stand the trial court’s decision not to award postmajority support for the son.

The daughter, on the other hand, had been institutionalized during most of her recent years with bipolar disorder. It’s unclear from the written opinion whether the trial court had reserved the issue of postmajority support. However, the opinion ends with a statement endorsing this approach. The appeals court clarified that a petition for postmajority support can be filed after the child reaches the age of majority “as long as the disability occurred during the child’s minority and continued thereafter.” Citing Elliott v. Bretherick, 555 So.2d 1109, 1111 (Ala. Civ. App. 1989).

Lee’s note: The appeals court appears to be instructing trial courts to err on the side of reserving for postmajority support. But there seems to be no mandate to order it until just before the age of majority or maybe even after it.

You cannot deal with postmajority support for disabled children in Alabama without at least cocking one eye at the Alabama supreme court and its recent decision in Ex parte Christopher, 145 So. 3d 60 (Ala. 2013). The Christopher court swept away the concept of postmajority education support, declaring that the term “children” does not include adult children. The Christopher court made it clear that it did not at that time have the issue of postmajority support for disability before it. And the appeals court has subsequently declared that the concept of postmajority support for disabled children as established in Ex parte Brewington, 445 So. 2d 294 (Ala. 1983) “remains good law at this point.” Knepton v. Knepton, 199 So. 3d 44, 47 (Ala. Civ. App. 2015).

To Reduce Child Support, You Must Say Why

Child support is designed to go up and down as the children grow up, as Mom’s and Dad’s incomes change, and as child care cost and health insurance cost change. The parents simply show to the court what has changed (the lawyer term is a “material change in circumstances that is substantial and continuing”). Both parties file updated disclosure forms (CS-41, CS-42, and CS-43), and the court recalculates child support using the new numbers.

In the case of Tanner v Tanner, Case No. 2160105 (Ala. Civ. App. June 23, 2017), Ms. Tanner waited until the trial of her post-divorce enforcement hearing (filed by the husband to restrict her visitation and recover child support arrearage) to request that her child support be reduced. Responding to questions from the trial court, she stated that she was not working and that her new husband was providing insurance for the children. She did not allege, however, that this represented a change in circumstances in any way, let alone that it constituted that magical “material change in circumstances that is substantial and continuing.”

The trial court probably should have stopped at that point and required both parties to fill out the child support forms. Instead, it simply declined to reduce her child support, and it otherwise provided the relief the husband had requested. She appealed.

The appeals court didn’t say whether the trial court’s failure to insist on child support forms was error, but it did say that even if it was error, it was harmless error, because Ms. Tanner failed to allege a material change in circumstances. “The mother has failed to show how the inclusion of the child-support forms would have altered the disposition of the mother’s claim. The mother has not proven that she was prejudiced by the failure of the trial court to obtain the forms.”

The appeals court also affirmed the ruling of the trial court confining the mother’s visitation to the Family Center in Mobile for six months. However, the appeals court reversed the trial court’s order that the mother pay $1,400 for the fee of a guardian ad litem, “because the guardian ad litem failed to substantiate [her] request for an attorney fee with any evidence or documentation, such as itemized billing records.”

Lee’s note: This is not a criticism of the appeals court, which was simply following precedent. Let’s acknowledge, however, that had the trial court stopped and required financial disclosure forms from each party, it could have learned that there was indeed a “material change in circumstances that is substantial and continuing” (either in Mom’s favor or Dad’s). The trial court should have required the forms, which would have rather easily settled the question.

It would be easy enough, and not terribly disruptive, to remand the case to the trial court to take that step now. Instead, we are left with the chance that the trial court’s error (and let’s be honest: it was an error) prolonged an unjust result. This is undesirable from any reasonable perspective of judicial economy.

In Which County Do You File Your Divorce?

The question is one of “venue” (pronounced VEN you). The black-letter law on venue for a divorce comes from Ala. Code § 30-2-4, which provides that a divorce “may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred, or if the defendant is a nonresident [that is, residing outside Alabama], then in the circuit court of the county in which the other party to the marriage resides.”

The question where a party “resides” is one of fact, and that’s where today’s case comes in. The wife in Ex parte Hudson, Case No. 2160558 (Ala. Civ. App. June 23, 2017) filed for a legal separation in Baldwin County, Alabama, where she lived. The case doesn’t make it clear, but at the time of the filing, the husband was apparently staying in Baldwin County. The husband moved to transfer venue to Montgomery County, where he said the parties had lived together until their separation, where he had owned a house and still owned a business, where he was registered to vote, and where he intended to maintain his residence by soon purchasing another house.

The wife argued that the last place the parties had lived together before their separation was Baldwin County. She said that when they lived there together, they spent about 90% of their time in Baldwin County.

The trial court granted the husband’s motion and transferred venue to Montgomery County. The wife petitioned for a writ of mandamus instructing the trial court to vacate its order.

The appeals court said the burden of proving improper venue is on the party objecting to it (the husband) but that the trial court had ruled in the husband’s favor. This meant that the petition for writ of mandamus would not be granted without a showing of clear error on the part of the trial court.

The appeals court said that in Alabama, “residence” equates to domicile, which embraces the dual concepts of (1) the fact of residence, and (2) the intention to remain.

“We conclude that the trial court reasonably could have found that the separation occurred in Baldwin County but that the parties, or at least the husband, who is the defendant in the action below, resided in Montgomery County at the time the parties separated. This is true even though he had just sold the Montgomery County house. The trial court could have believed that the parties, or at least the husband, went to the house [in Baldwin County] simply to have a place to stay until a new house could be purchased in Montgomery County. There is no evidence in the record to show that the husband ever intended to remain in Baldwin County. Under our standard of review, the trial court’s determination is given a presumption of correctness.”

The appeals court denied the wife’s petition. So the divorce moved to Montgomery County.

 

Moral: On Appeal, Submit a Transcript

Trial transcripts are expensive. I haven’t priced them lately, but back when I was keeping up with such things, you could burn $1,000 easily on a transcript for a multi-day trial. So we can all forgive Matthew Robinson and his lawyer for trying to get by on his appeal without paying for the court reporter and transcript.

But if you read his case, Robinson v. Arnold, Case No. 2160238 (Ala. Civ. App. June 23, 2017), you quickly learn how that might get you into trouble. Arnold filed a petition seeking an order protecting her from abuse by Robinson (commonly called “Protection from Abuse” and abbreviated “PFA”).

Following a hearing at which both parties appeared and apparently presented evidence, the trial court entered the PFA order. Robinson filed a postjudgment motion. Without setting or conducting a hearing, the trial court denied Robinson’s postjudgment motion. Robinson appealed. He noted in his appeal that there was no transcript of the hearing. Instead, he submitted his own affidavit describing what had transpired. The appeals court rejected his affidavit on the grounds that it failed to comply with Ala. R. App. P. 10(d) and 10(f). These two provisions taken together allow a statement similar to the one Robinson submitted but require ample opportunity for the opposing party to offer objections or proposed amendments.

The first holding of the appeals court offered comfort to Robinson. The court stated that, in general, a party seeking a hearing on a postjudgment is entitled to one, so the trial court’s proceeding without a hearing was error. But that did not necessarily mean the judgment from the trial court was due to be reversed.

The appeals court endorsed the dissent from an earlier case, Gibert v. Gibert, 709 So.2d 1257 (Ala. Civ. App. 1998), to hold as follows: “When an appellant fails to provide a transcript or a statement of the evidence, this court presumes that the omitted evidence fully supports the determination of the trial court. In this context, we must presume that the transcript would reveal that the trial court afforded Robinson due process [and otherwise complied with applicable judicial standards] and that the evidence fully sustains its judgment so that Robinson was not harmed by the failure of the trial court to conduct a hearing on his postjudgment motion.”

There’s no way of knowing whether the result here would have been different had Robinson submitted that transcript, or even if he had simply complied with the Alabama Rules of Appellate Procedure and correctly submitted a factual summary. All we can know is that his failure to do either of these things allowed the appeals court to avoid having to decide whether the trial court’s error made any difference.

Easing Your Spouse Toward a Cooperative Divorce

I could hear the fatigue in Lynn‘s voice as she and I talked over strategy for her divorce. This was her second marriage, so she had divorced once before and knew how messy it could become. She and her husband agreed they needed to divorce, but they disagreed on how.

This was his first marriage, and divorce terrified him. With the enthusiastic support of his parents and siblings, he had lined up an aggressive gladiator divorce lawyer and paid him a retainer larger than anything they could possibly fight over. “Don’t talk to me about our divorce,” he instructed her. “You can call my attorney.” She did, but the attorney hasn’t returned her calls.

“What can I do?,” she asked. “I feel so powerless.” Lynn and I discussed three strategies, which I will summarize here.

1. Be patient. People going through divorce who lay down a big retainer on a divorce lawyer are always confident they’ve made the right decision in the 2-3 months immediately following their decision. They typically view that lawyer they hired as their savior, protector, and friend. If you’re unsure why, drop the term “cognitive dissonance” into your search engine and read up. After a person has made such a large financial commitment based on an adversarial divorce, it’s quite normal to actively ignore or reject any data that would indicate it was a mistake to write that big check.

During this initial period, respond in a minimal way to provocations from your spouse and your spouse’s lawyer. The idea is to allow your spouse to grieve over the ending of the marriage and begin putting his or her gladiator’s role in perspective.

2. Get an honest appraisal of your negotiating position. Make sure the positions you are taking are reasonable and no more generous to you than what a judge would do in an adversarial divorce. It might be helpful at this stage to visit with a lawyer for the express purpose of evaluating your negotiating positions.

The idea is that you want to make it easy for your spouse to say yes to a cooperative divorce. And that means helping your spouse see a resolution that seems palatable.

2. Make it easy to communicate. Within reason, take advantage of each graceful opportunity to talk, text, or email directly with your spouse, making sure you stay calm, rational, and coherent. You want your spouse to rediscover that communicating directly with you is not unpleasant, intimidating, or overly stressful.

Over time, as the intensity of the separation subsides, you hope that you and your spouse will develop a businesslike, non-threatening style of communication that builds confidence for both of you. Eventually, you and your spouse will get around to talking about the terms of the divorce, and you can help your spouse see his or her way to a cooperative resolution.

Listening To a Regretful Adulterer

I received a poignant email message this morning. With the permission of the sender, I’m sharing it with you. Let’s call him Herbert.

Dear Lee

I want to thank you for the help you have extended with your suggestions on coping with the most devastating of life’s offerings. I am separated now for the last 6 months. It sucks. I have been unfaithful to the point of obnoxious. I have been a terrible husband to my wife and she had patiently given me enough warnings to pull my socks up. I just didn’t listen.

And then she left me. I see myself everyday in the mirror and define my image as the most vile and to be hated human being to ever walk this earth. I say this with no motive as I know she isn’t going to read this and give me a chance. I say this because I have all along known how much she meant to me even in my wandering days. I wasn’t looking for love. I was looking for cheap thrills.

The three year period is something I don’t yet understand. While I read your note, I just don’t know why that should ever make sense. I am only happy for those who could move on and succeed.

The guilt of not seeing  the signs is overwhelming. I know I can do little about it now as it is beyond me. She is happy or it seems to be and I cannot be more supportive of that by staying the hell away from her. My trouble with time healing is that time merely makes the life’s routine normal as I see and endure it every day. I have faith and I do know god is the feeling of someone giving you a listening ear when I am at my wits end. and I am. I truly am.

I do not see myself marrying again or wanting another woman in my life. I don’t deserve that kind of life.

I just wanted to write to you with no motive whatsoever. Except may be to say thank you.

I wish you well.

As I told Herbert, I think he’s exceptionally brave and unusually self-aware, which is why I think it makes sense for you to have a moment to walk in his shoes. That is all.

Plain Talk in Winston County About Drugs and Parenting

One of the most enduring stories from Alabama during the Civil War concerns the stand taken by the “hill people” of Winston County against the secession of the southern states from the US. Too poor to own slaves and unwilling to risk their lives for the rich men who did, they rejected the optimistic and bellicose anti-North frenzy that had spread throughout the south. It’s not true that the “Free State of Winston” seceded from Alabama, but it did officially remain neutral throughout the war at great cost to lives, property, and business.

We heard a little of that “Free State” candor in a recent case from Winston County Juvenile Court, A.S. v. T.R.B., Case No. 2150996 (Ala. Civ. App. June 9, 2017).  The case focuses on the arcane issue of substantive due process vs procedural due process. I don’t care much about that, and the odds are you don’t care much about it either, so let’s focus instead on the plain-spoken juvenile court judge and his admonition to the unmarried parents before him.

Each parent apparently had assured the judge that he or she was drug free. When the mother alleged that the father had a drug problem, the court ordered each parent to submit to a drug test. The judge ordered both parents to submit to a drug test, and both tested positive. Mom’s screen was positive for THC (marijuana). Dad’s was positive for THC and a faint trace of methamphetamine.

At the end of the hearing, the judge went on the record to chastise both parents:

“And the whole time we’re talking about what’s in [the child’s] best interest. You know, what are we going to do? And I’m just–I’m really–I’m upset and I’m disappointed in the both of you.

“And here’s what we’re going to do. We’re not doing the final order today. We’re going to do a temporary order. Y’all are submitting income affidavits. [P.B. and T.R.B., Sr., the child’s paternal grandparents], y’all haven’t prepared on it, but you have custody of [the child] for the next six months.

“And the two of y’all [i.e., the parents] are going to go to court referral. You’re going to get every other weekend visitation. You’re going to get every other weekend visitation. [The father is] not to have any visitation any more than [the mother] has.

“Both of [the parents] are going to go and take drug tests on Friday before they pick up [the child]. And they’re going to sit there, and they’re going to show [the paternal grandparents] the drug test. And if they’ve failed, [the paternal grandparents] are authorized by the Court to deny them visitation.

“I’m going to be clear with both of y’all. If something ain’t changed in the next six months, y’all [i.e., the paternal grandparents] gear up. You’re getting custody. And here’s–no. And here’s the thing. Y’all [i.e., the parents] have done this to yourselves.”

If you’re interested, that’s exactly what the judge did. The court scheduled a follow-up hearing seven months later. At that hearing the court apparently didn’t get the news it wanted about the parents’ drug use. The child is now living with Dad’s parents. Mom and Dad get weekend visitation, subject to a clean drug screen the preceding Friday.

3 Sure-Fire Tips for New Co-Parents

This article is provided by Tim Backes and Custody X Change.

Your divorce is inevitable. You’ve tried everything to avoid it, but it’s going to happen. No matter how you look at it, even if you know it’s the best course of action, it still hurts.

While it’s perfectly natural to feel that pain, if you’re a parent you’ll want to remember there are more than just yours and your ex-spouse’s feelings to consider. While you are no longer going to fulfill the role of a wife or husband in the short term, you are still a parent, and one half of a co-parenting duo.

A big reason why many couples put off divorce until they can no longer hold a faltering marriage together is to try and maintain some semblance of consistency for their children. Agreeing to work together as co-parents does the same thing for your children post-divorce. So what are those 3 tips?

1. Maintain a Unified Front

It’s all too easy for a recently divorced couple to badmouth their ex to their children no matter how conciliatory the split was. Sometimes you don’t even notice you’re doing it, but your children do.

It’s important to try and limit saying anything judgmental or negative about your children’s other parent. It’s OK and perfectly natural to think it, but you don’t want it to show.

Instead, by showing your children that although you and their other parent are no longer living together you are still in agreement with how you will raise them. This is the key way to maintain that sense of consistency and safety that kept you from divorcing sooner in the first place.

2. There is No Friend in “Co-Parent”

It’s very easy to forget you’re a parent and instead act as more of a friend when you and your children’s other parent aren’t living together. It’s a passive aggressive way to try and outdo or one up your ex-spouse.

By acting in such a manner, you break the concept of a unified front. It undermines the idea that although you and your ex are now divorced, you still plan to parent the same way. It also spurs a potential popularity contest between you and your ex that is absolutely not in the best interest of your children.

Children need parents. They will have friends from school and extracurricular activities. That doesn’t mean you have to be stern and cold, but you do need to maintain the boundaries that make you an authority figure and role model in their lives.

3. Follow the Rules

Part of your divorce should have been creating and agreeing to a parenting plan for your children. In that parenting plan you have to cover all the basics such as including a custody calendar. However, you can include additional provisions as well.

Whatever you and your ex put down in writing and agree to at the time of your divorce, do everything you can to follow it to a T. As mentioned before, you are still a parent and as a parent you are a role model.

By showing your children how to respect your ex and the agreements you have made, it shows them how to act responsibly. It also shows your ex that you’re not trying to undermine his or her role as a co-parent.

In Summary

Becoming a successful co-parent is actually not all that different from parenting as a married couple. You should show your children you respect your ex-spouse. You should show your children that while you can listen to them and have fun together, you are an authority figure as well. And, you should show them how to respect agreements you have made.

Don’t Try To Get DHR To Pay an Attorney Fee in Alabama

It’s a given in Alabama that when a party is in contempt of court, that party is liable to pay an attorney’s fee to the other party. So you can forgive Mark David Allen for asking for an attorney fee when DHR botched up his case. The case is Alabama Department of Human Resources v Allen, Case No. 2160310 (Ala. Civ. App. May 19, 2017).

The husband (Allen) alleged that he had paid all child support as ordered and on time. Yet DHR intercepted his income tax refunds, caused an income withholding order to be filed against him, and filed a motion to collect child support from him, alleging that he owed $58,000 in back child support.

After hearing testimony and reviewing documents, the trial court roasted DHR. In the words of the appeals court, the trial court found “that the father was not in arrears for other child support, that DHR had been negligent in its research regarding the arrearage allegedly owed by the father before attempting to collect the alleged arrearage, that DHR had encouraged the mother to file a false claim against the father for the alleged child-support arrearage, and that DHR had failed to entertain the father’s attempt to provide it with proof of payments regarding the alleged arrearage. The trial court ordered DHR to pay to the father attorney’s fees in the amount of $5, 000 ‘for [its] negligence and greed in having [the mother] file a false claim against [the father].'”

DHR appealed.

The appeals court never reached the question whether the husband was eligible to collect an attorney’s fee, because it found that DHR, as an arm of the State of Alabama, is entitled to sovereign immunity. The appeals court pointed out that the trial court could have assessed an attorney fee against a DHR official, just not against the Department itself.

“We conclude that DHR, as an agency of the sovereign state, was immune from suit for attorney’s fees for the father.” Because the trial court lacked subject matter jurisdiction to assess an attorney fee against DHR, its order directing DHR to pay one was void. And because the judgment was void, the appeals court dismissed the appeal with instructions to the trial court to vacate the portion of its judgment ordering DHR to pay an attorney fee.

Does Committing a Crime Satisfy the McLendon Standard for Changing Custody?

Most everybody who deals with custody issues in Alabama knows about the McLendon standard. Arising from the case of Ex parte McLendon, 455 So.2d 863 (Ala. 1984), the McLendon standard (after judicial reinterpretation and clarification over the years), now provides that a noncustodial parent seeking to change custody must show three things: (1) that he or she is now a fit parent; (2) that material change affecting the child’s welfare has occurred; and (3) (and this is the toughest) the advantage of changing custody will more than offset the disruptive effect of uprooting the child.

The father in this case, Weaver v Jefferson, Case No. 2160163 (Ala. Civ. App. May 19, 2017), had been awarded “primary physical custody” in the parties’ divorce. The appeals court interpreted this as sole physical custody, making its displeasure at the use of the term clear. “The term ‘primary’ physical custody is an incorrect term and is not recognized in Alabama law.”

When the father was arrested in Georgia and charged by his utility company with theft of services, the mother filed for an emergency modification and later a permanent modification of custody. The trial court granted her petition. As grounds, the trial court cited “a catastrophic medical condition of a new child” [the father had a new son, half brother to the child at issue here, who had suffered brain, kidney, and liver damage and who required considerable continuing medical attention]. The trial court also cited “some pending out-of-state legal issues” [presumably the theft of service charge]. It is important to note that even the mother’s lawyer acknowledged that the theft of services charge was unlikely to involve prison time for the father. The father appealed.

The appeals court recited the McLendon standard set forth above. It acknowledged that the mother had clearly met test number one by demonstrating that she had stabilized her home life and was now a fit parent for the child. But it found no evidence to support the trial court on either of the other two tests: “Although the mother demonstrated that she is a fit custodian, the mother presented no evidence demonstrating that the medical needs of the child’s half brother or the father’s ongoing legal issues in Georgia had affected the welfare of the child or that the positive good brought about by the change in the child’s custody would more than offset the disruptive effect of uprooting the child.”

In the absence of such evidence, the appeals court reversed the trial court and remanded with instructions that it issue an order “consistent with this opinion,” presumably an order that the child will continue living with the father.

Reducing Child Support in Alabama

Child support in Alabama is designed to be dynamic, to go up and down as Mom’s and Dad’s incomes change, and as their respective expenses for child care and health insurance change. In Humber v Humber, Case No. 2150922 (Ala. Civ. App. May 12, 2017), we have an example of what happens to child support when one of the parents gets laid off from work.

The parties were divorced in 2003, and the court ordered the father to pay child support of $1300 per month. This at a time when the father worked for USX and had enjoyed income as high as $65,000. 12 years later, though, USX laid off the father, and his income after exhausting his unemployment dropped to $12,000 per year in “supplemental unemployment benefits” from USX. USX also provided health insurance coverage to the father and his children at no charge.

The father had applied for and been offered several jobs paying $8 or $9 per hour, but taking them would have ended his free health insurance from USX. He testified that he felt “stuck between a rock and a hard place” when weighing taking another job vs. hanging onto the free health insurance.

The father filed a petition to modify to reduce his child support.  The trial court calculated the revised child support by imputing income to him at $9 per hour for a 40 hour week, and it also apparently “imputed” a $400 cost for health insurance coverage, even though there was no evidence the father had paid any cost for health insurance. This resulted in a negative child support amount, so the trial court suspended the father’s child support obligation pending the mother’s proving “beyond a reasonable doubt” that he was financially able to pay it. The mother appealed.

The mother’s first argument was that the father had failed to prove that the reduction in his income was “substantial and continuing.” Specifically, she argued that the reduction might be only temporary, because USX might recall the father at any time. She also pointed out that he would be eligible to begin receiving a pension from USX in August of 2017 which would pay up to $2,500 per month. The appeals court rejected that argument, finding that the trial court had sufficient evidence before it to determine that the father’s reduction in income was substantial and continuing.

The mother also argued that the trial court had abused its discretion by suspending rather than simply reducing the father’s child support, when he had not requested this relief. The suspension was based on the trial court’s calculation of a negative child support amount, which was in turn based on its including that $400 credit for health insurance when the father wasn’t paying it. The appeals court found this to be error. “[T]he evidence does not support the trial court’s determination that the father was to be given a $400 credit toward his child-support obligation because he was paying for health-insurance coverage for the children.” Because it was error, the appeals court reversed and remanded the case to the trial court for a recalculation of child support.

Lee’s reflections: These children are fortunate that Mom makes $89,000 as an area supervisor for a fast food restaurant. The kids are going to be okay. Dad is enrolled in community college learning to be an electrician, and he will be eligible to begin receiving his USX pension before this year is out, so he’s going to be okay too. That doesn’t keep this from being an awful time for everybody, especially Dad, but we can hope it’s temporary.

What Are the Sources of Alimony in Alabama?

Alabama courts have consistently held that determining the appropriate amount of alimony to order in divorce is a three-step process:

  1. deciding whether the recipient spouse needs it;
  2. deciding whether the paying spouse can afford to pay it;
  3. evaluating any equitable principles that should cause it to be increased or decreased.

When it comes to that middle factor, whether the paying spouse can afford to pay alimony, the courts have consistently disregarded retirement plans from which the paying spouse is not already receiving benefits, even if the paying spouse has reached normal retirement age and is simply choosing not to receive benefits.

This is and always has been regrettable and weak policy. If a person has every right to receive a retirement benefit without actuarial adjustment and is simply letting the money sit there as a financial technique, the retirement account has become analogous to a savings account. To disregard it is to engage in a fiction that enables paying spouses to live lean just long enough to get divorced and then later to live it up while their divorced spouse suffers. Nevertheless, the principle is what it is.

The current case, Meehan v Meehan, Case No. 2150734 (Ala. Civ. App. May 12, 2017), gives us an excellent illustration of what does and does not count as a valid source for the payment of alimony. The husband had built houses for a living and was apparently quite good at it, earning $231,000 during 2013. But he had recently retired, and his income dropped to $65,000.

In connection with his retirement, the husband had created a revocable trust in his name as a planning tool “for the purpose of ensuring that all five of his children were taken care of after his death.” It’s not clear how much money the husband deposited in this trust. The husband had about $860,000 in two retirement accounts but was not withdrawing money from them at the time of trial.

The trial court ordered the husband to pay the wife $5,000 per month in alimony for five years and $2,500 after that until her death, remarriage, or cohabitation. This even though the husband claimed his income was only $4,800 per month. The husband appealed.

The appeals court accepted the husband’s argument that his retirement plans were off limits, but it rejected his argument that the revocable trust was also unavailable. In doing so, it mentioned that the husband had withdrawn $50,000 from one of the accounts in the trust after setting it up.

“The husband testified that he had used those funds to pay for taxes, insurance, and maintenance on [marital property] . . . Therefore, the trial court could have found that the husband regularly used the funds from the long-term-care account and that those funds were a source of income for the purpose of determining the award of periodic alimony.”

The appeals court also mentioned the trial court’s stated observation in open court that it doubted the husband’s version of the husband’s financial situation.

 

Not Ready for Divorce Decree, But You’re Entitled to Service

Poor Kevin Allison. Unwilling either to pay someone like me $100 for an uncontested divorce or to do his own homework to find out what is needed, he filed pro se but didn’t file all the required documents, so he got a three-sentence order from a clearly exasperated court: “FINAL ORDER OF DIVORCE filed by ALLISON KEVIN DWAYNE is hereby DENIED. The pleadings are inadequate and incomplete. The parties are highly encouraged to seek legal advice.” Taking this as a dismissal of his case (and apparently waving off the course of action the judge “highly encouraged,” namely that he talk to a real lawyer), he appealed the order.

The appeals court predictably dismissed his appeal. That was his first trip to the appeals court, which you’ll find at Allison v Helms, Case No. 2160017 (Ala. Civ. App. February 10, 2017).

Now Kevin is back, having returned to the trial court, and having attempted to compel service of process on his wife. This time the case is Ex parte Allison, Case No. 2160512 (Ala. Civ. App. May 12, 2017). The trial court denied his motion, and he petitioned for a writ of mandamus ordering the trial court to proceed with service.

This time Kevin was a winner. The appeals court said it could find no basis for the trial court’s refusal to initiate service. “The husband has demonstrated a clear legal right to have his divorce complaint served on the wife. We therefore grant the husband’s petition, and we order the trial court to instruct the clerk to serve the divorce complaint on the wife.”

So now we all troop back to the trial court in Marshall County. Maybe this time these two poor folks will actually get a divorce decree.

Because this post talks about my legal practice, I need to say this: no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Forcing Testimony About Adultery in a Divorce Trial

Every divorce lawyer has a story about one (sometimes both?) spouses being forced to “take the 5th” in a divorce trial. They’re speaking of the standard technique of forcing the other spouse to claim his or her 5th Amendment privilege against self-incrimination rather than being forced to come clean with the court about an adulterous affair.

Adultery is a Class B misdemeanor in Alabama, Ala. Code § 13A-13-2, with a 1-year statute of limitations. Ala. Code § 15-3-2. So can one spouse force the other to testify about adultery if the question is limited to adultery that occurred more than a year ago? That’s the approach the wife tried in Ex Parte Edmonson, Case No. 2160432 (Ala. Civ. App. May 5, 2017).

On the first day of the divorce trial the wife’s lawyer asked the husband whether he had had sexual relations with a woman not his wife more than 365 days before the date of trial. The Husband’s lawyer objected, and the Husband asserted his Fifth Amendment privilege. The trial court stopped the trial and asked both sides to submit letter briefs concerning the husband’s right to assert the privilege. After reviewing both briefs, the trial court stayed the action indefinitely “pending resolution of any criminal charges against [the husband] and said charges against [the husband], if any, are adjudicated at the trial level.”

Now what? Neither the husband nor the wife wanted that. The Husband filed a petition for writ of mandamus instructing the trial court to lift its stay, and the wife endorsed it.

The appeals court rejected the argument of both sides that the trial court had no power to order a stay because neither party asked for it. “[A] trial court has the inherent power to control litigation in its courtroom and to manage its docket.”

The parties disagreed on whether the husband could be forced to testify about adultery that occurred more than 365 days before the trial. The husband argued that, because adultery is a continuing offense. The appeals court dismissed his argument, though. “[T]he husband’s right against self-incrimination is not implicated by questions regarding allegedly adulterous acts that occurred more than one year before the date of trial because the husband can no longer be criminally prosecuted for those acts.”

Having removed the husband’s rationale for asserting his Fifth Amendment privilege, the appeals court then rejected the trial court’s rationale for an indefinite stay, calling it “beyond the scope of the trial court’s discretion.” The appeals court granted the husband’s petition and ordered the trial court to vacate its stay.

So now the appeals court has made the only decision it could, to allow the orderly procession of divorce cases through the courts regardless of the claim of Fifth Amendment privilege regarding adultery. Now that the husband’s Fifth Amendment privilege has been thoroughly aired and discussed by everyone in the courthouse, you have to believe the wife got more divorce court leverage from his alleged affair than she ever would had he simply said “yes, we had an affair.”

And another thing: in another day, with another governor and another legislature, perhaps adultery will no longer be a crime in Alabama.

 

Is the Farm a Marital Asset?

That old farm had been in the husband’s family since before the marriage. Was the wife entitled to share in its value in divorce? The Alabama appeals court says yes, even though neither spouse ever lived there.

The case is Davis v Davis, Case No. 2150657 (Ala. Civ. App. May 5, 2017). That link, by the way, takes you to the case as provided online free of charge on Google Scholar. I just found out about it last night. I’ll be linking to cases in this way in all future blog posts. If you want to pull up one of the cases I discuss in earlier posts, it’s easy to do. Just go to Google Scholar for Alabama case law and search for the case number.

The husband in this case was 97, the wife 71. They had been married nearly 60 years, and the husband told the court his wife had wanted a divorce for 40 of them. At the time of trial the husband was in poor health, was likely blind, and was being treated for cancer.

The husband had argued at trial that the farm was his separate property because he and his mother had bought it before the marriage and put it in his brother’s name. The brother had lost the farm (also before the marriage) because of failure to pay the taxes on it. The husband purchased the farm again in his own name after the marriage. He purchased it in his own name, shared some of its income with his siblings, and used the rest for unspecified purposes.

The trial court awarded the wife the parties’ marital residence (which all parties agree needed considerable repair to be habitable) and two parcels of real property valued at $3,200. The trial court awarded the family farm (the only income-producing asset) to the husband, apparently on the grounds that it was the husband’s separate property. In its award, the trial court said the husband needed money for his medical expenses, because “I can’t allow the man to die.” The trial court said that it “expressly resolve[d] the periodic alimony issue by the division of property,” even though the settlement it ordered allocated no income-producing property to the wife.

On the wife’s appeal, the appeals court tossed aside the husband’s assertion that he and his mother had purchased the farm before the marriage, saying “the evidence is undisputed that the family lost the farm because the taxes had not been paid on it. The evidence is also undisputed that, when the husband bought the farm ‘through a contract’ in the 1970s, he was married to the wife. He did not receive the farm by means of an inheritance or as a gift.”

The appeals court stated that the trial court’s apparent conclusion that the farm was separate property was not supported by the evidence. The appeals court reversed and remanded. “In reversing the judgment, we are not determining whether the trial court must award the farm or any portion of the farm to the wife. Instead, the trial court is directed to reconsider its division of marital assets in light of our holding that the farm is marital property.”

Minimum Contacts for a Long-Arm Divorce

There are three ways a party filing for divorce in Alabama – or for that matter, filing any civil case – can get jurisdiction over a defendant who lives in another state:

  1. The defendant consents to being served.
  2. The plaintiff serves the defendant personally (hands the defendant appropriate documents) while the defendant is physically present in Alabama. Usually this is done by a trained process server.
  3. Showing to the court that the defendant has minimum contacts with Alabama such that it’s “not inconsistent” with the Alabama or U.S. Constitutions to allow the action to proceed.

This third method – minimum contacts – is often called “long-arm jurisdiction,” for obvious reasons. If you think it sounds like a really fuzzy definition, you’re right. If you think that fuzziness is bad, you’re wrong. The imprecision of the language allows courts and judges to interpret it as they perceive fairness dictates, and generally they do a pretty good job. The case we’re studying here is an example of the court’s seeming to get it right.

The wife in Logarides v Logarides, Case No. 2160332 (Ala. Civ. App. April 28, 2017 filed for divorce in Alabama even though the husband lived in Virginia. He did not object to the divorce (subject matter jurisdiction over the marriage existed just because the wife lived in Alabama) but argued that the court lacked personal jurisdiction over him and therefore could not order him to pay child support or medical expenses for the couple’s children.

Both parties submitted affidavits. The husband’s stated that he lived in Virginia and had “no meaningful contact” with Alabama. The wife’s stated that the parties were married in Alabama, that the wife had lived in Alabama while the parties were married and the husband was stationed overseas, that the children were born in Alabama, and that the husband had opened bank accounts in Alabama. She also showed that the husband had shown an Alabama address on at least one joint tax return and on various banking documents.

The trial court denied the husband’s motion to dismiss and, after findings of fact, ordered the husband to pay temporary child support and medical expenses for the children. The husband filed a petition for writ of mandamus seeking to have the appeals court order the trial court to dismiss the wife’s claim for support.

The appeals court first observed that the wife had the burden of demonstrating that the trial court had personal jurisdiction over the husband. This was the purpose of her submitting the evidence noted above. The appeals court said, “Considering the evidence submitted by the wife in a light most favorable to her as the plaintiff, the trial court could have concluded that it had personal jurisdiction over the wife and children.”

The husband had relied on Burke v. Burke, 816 So.2d 498 (Ala. Civ. App. 2001), in which the appeals court had permitted subject matter jurisdiction over the marriage but not personal jurisdiction over the defendant. The appeals court distinguished Burke, however, because the Burke defendant asserted without contradiction by the plaintiff that she “resides in the State of Florida, that she has never resided in the State of Alabama, that she does not transact business in the State of Alabama, and that she has not visited the State of Alabama.” 816 So.2d at 501.

Here, in contrast, the plaintiff alleged those various contacts the defendant had with Alabama, and the defendant did not refute them in any meaningful way. The appeals court therefore denied the defendant’s petition.

5 Things Fathers Should Know About Custody

This article is provided by Lauren Bennett and the Law Firm of Stephen Vertucci.

The dead-beat dad – we all know the stereotype – files for divorce, possibly because of infidelity on his part, then skips out on child support payments and weekly visitations with his children and eventually ceases any possible relationship with them. Why is this the such a stereotypical situation, when it’s been proven that most fathers are loving, caring parents that want nothing more than to spend time with their children and see them thrive? A mixture of Hollywood and history have added to this stigma, but times are changing and a “men’s rights” movement is in full force – which plays in favor of loving fathers.

Since most fathers are genuinely interested in their children’s lives, going into court ready to prove your dedication to a potentially biased judge is essential. Knowing the facts about often misinterpreted child custody facts can better prepare you for an emotionally stressful trial, and result in a plan that is best for the entire family.

  • The mother doesn’t always get sole-custody of the child(ren)

The common myth that the mother always gets full custody of the children is constantly disproved by courts and experts throughout the country. This idea came from the fact that long ago, mothers were typically the primary caretakers in the family, thus leading to a stronger relationship with the children and increased chances of being awarded custody if a divorce occurs.

In the modern age, many women work equally to the amount of the father and two-income households have become the norm – this evens the playing field for mothers and fathers in terms of how much time each parent gets to spend with the children. The Family Court is not permitted to use gender bias when determining custody of a child.

  • Child custody arrangements can be modified

The courts understand that life changes and that a child custody arrangement may need modification to keep up with it. At the forefront of the child custody process is the child’s best interest – the court will always attempt to do what is best for the child.

When one or both parents request a child custody modification, the court does not take the process lightly. This process is notoriously emotional and stressful, which is why its suggested that a modification only be requested when it is clearly a better option than what was originally agreed upon.

Once a parent requests a modification, the court will consider changes in the child’s schedule, geographic location changes of the parents or child, and environmental changes in the home the child is currently residing in that cause danger to the child’s physical, mental, or emotional health.

  • Child custody cases are often settled before reaching court

Although many people think that child custody cases are resolved in court by a judge, only about 4% of cases see the inside of a courtroom. Child custody cases are almost always solved outside of court by the parents or through a process known as mediation.

The mediation process allows both parties to work together and come to an amicable agreement – and skip the hefty fees of dragging a case to court. According to Stephen Vertucci, a Colorado attorney who has experience mediating child custody cases, “If you and your spouse can agree, the court will usually go along with your decision. It is nearly always preferable for the parents to work these things out on their own.” Other than the financial aspect, mediation has huge benefits, including:

  • The ability to work together with your ex-spouse and come to an agreement that is best for your children
  • Coming to an agreement much quicker than in court – typically within a week or two
  • A neutral party conducting the mediation that is not personally invested in either side of the custody battle
  • The ability to speak freely throughout the process without having your words used as evidence in court

While it seems that mediation must be done face-to-face with your ex-spouse, it’s possible for it to be done separately. This works well if you and your ex don’t have the best relationship and prefer to not be in the same room. The mediator will go back and forth between the two of you until an agreement is reached; allowing you and your spouse to work amicably together while maintaining your space.

  • The parent who files for divorce doesn’t automatically forfeit custody

A common misconception about the child custody process is that the parent bringing the case is automatically forfeiting their chances of getting custody. While this seems “logical” – it’s entirely false. The family court likes to see parents putting the needs of their children before their own desires. When a parent comes forward and decides that ending the marriage is what is best for the family – the court sees that as a strength. Don’t automatically assume you don’t have chance for child custody, even if you were the one who filed the divorce papers.

  • The Family Court takes several factors into account when determining custody

As mentioned before, family courts are forbidden from taking parent gender into consideration when determining custody. However, this does not prevent a judge from using his or her personal discretion in a custody ruling – meaning they can award custody to the mother if they believe a “traditional” situation is the best option. What is uniform across all states is the “best interest of the child” standard which may ambiguous at times, leading the judge to use his or her personal discretion.

Some aspects you can expect a judge to consider when determining the “best interest of the child” are the following:

  • Age of the children – Some judges believe that younger children (typically under the age of 5) need to be placed with the mother, as these are considered the “tender years” of development. In the past, the “tender years” doctrine ensured the mother would get custody of children 5-years-old and younger but has since been phased out of the legal system. Some judges still believe younger children should be placed with their mothers, especially nursing infants.
  • The parent/child relationship – You can certainly expect the judge to consider the relationships between the children and each parent. If the mother stayed home with the children and spent most of the time caring for them, there’s a bigger likelihood she will have a stronger bond with them. But this doesn’t always mean it’s the end of the road for fathers – judges will consider the time spent with the children, along with personal accounts from each parent and usually the children.
  • Living situation of each parent – This one is huge – most judges will consider a parent that has their own established home over one that is in a temporary living situation. If you’ve moved into a hotel or are staying with a friend while you go through your child custody battle or divorce while your spouse stays in the family home, you can expect the judge to side with the opposing side. Make sure your living situation is as stable as possible before entering a child custody battle if you want to have a better shot at getting custody of your children.

There’s no doubt that divorce and child custody are stressful and intimidating processes. But, if you go in ready, you are more likely to have an ideal outcome for you and your loved ones – especially your children. It’s important that you explore all your options and strongly consider the best scenario for all parties involved in order to have a quick and manageable process, and get back to normalcy as soon as possible.

Classic Case of Signer’s Remorse

I don’t know Ronnie Ray Jones, Jr. From reading about his divorce case in Jones v. Jones, Case No. 2160014 (Ala. Civ. App. April 7, 2017), that’s probably for the best. Poor Mr. Jones can’t seem to hold on to a divorce lawyer or make up his mind. He fired his first lawyer and hired Delk, lawyer number 2. Working with lawyer number 2, Mr. Jones negotiated a settlement and signed a stipulation of agreement. A few days later, both parties and their counsel notified the court that they had settled. The court ordered them to submit final documents within 30 days. On that same day, the wife’s lawyer sent lawyer number 2 a draft of the final documents.

The husband never signed the documents. A few days after the 30-day deadline had run, lawyer number 2 asked to withdraw on the grounds that Mr. Jones instructed her to do so. That same day, the court set a hearing on “all pending motions” and immediately entered it on the State Judicial Information System. Four days before the scheduled hearing date, Belser, lawyer number three, entered an appearance on behalf of the husband.

Neither the husband nor lawyer number three showed for the hearing. The trial court called the office of lawyer number three and left a voicemail stating that unless he responded in half an hour, the court would continue the hearing without him. 34 minutes later, the court did so, ratifying the stipulated agreement and divorcing the parties.

Three weeks after the hearing and the court’s order of divorce, the husband filed a motion seeking to alter, amend, or vacate the judgment. The husband said he knew about the hearing but thought it related only to the withdrawal of lawyer number two and was therefore moot. Lawyer number three said he didn’t know about the hearing. Said he had looked on the Information System but hadn’t seen it.

The court scheduled a hearing on the husband’s motion. After the hearing, the husband filed an “addendum” to his postjudgment motion claiming confusion about what was in the stipulation of agreement.

Three days later, the trial court denied the husband’s motion, pointing out that he had the assistance of counsel when he signed the stipulation of agreement and that he had presented no evidence that he was illiterate or coerced when he signed. The husband appealed, arguing that there was no “meeting of the minds” at the time he had signed the stipulation of agreement. In a gutsy move, the wife did not respond to the husband’s arguments with a brief of her own.

The appeals court said the husband’s assertion is at odds with basic contract law.  “[One] may be ‘bound’ by a contract in ways that he did not intend, foresee, or understand.” The appeals court quoted Lilley v. Gonzales, 417 So.2d 161, 163 (Ala. 1982): “Where a contract is unambiguous and plain in expression, we know of no canon of construction that warrants an interpretation the only effect of which is to relieve a party to the contract from consequences deemed by him hard or unfair. Where the parties express without ambiguity their intention, no court can alter the agreement, and no room for judicial construction is left.”

The appeals court affirmed the trial court’s ruling.

What To Do When Your Spouse Won’t Leave the House

I’m assuming for purposes of discussion here that your spouse is living in your marital home and has agreed to leave but now doesn’t seem to be moving or making any plans to move. Let’s break this down to a series of “ifs:”

If you have a binding agreement specifying a date certain for your spouse to vacate the house and a judge has incorporated that agreement into a decree, that means you don’t just have a contract; you have an order from a judge instructing your spouse to move. And that means that, unless your spouse can show he is unable to comply, he is in contempt of the court. In most states, that means the judge may not only order him to comply immediately but also assess him for your attorney fee for forcing his compliance. That’s a powerful hammer you can threaten to use without actually using (as in a polite matter-of-fact conversation with your spouse) and make it clear your spouse has all the incentive he needs to get moving. Pronto.

If you have a binding agreement that’s not yet incorporated into a decree, it’s good to have but much less useful for forcing compliance. In order to force compliance, you would need either to incorporate the agreement into a decree so you can have the leverage described in the preceding paragraph, or resort to suing your spouse to force compliance on your own.

If all you have is an informal assurance from your spouse that she’ll be gone by a date certain, even if that assurance is in writing, your spouse has failed to comply with a moral obligation. You may be able to shame her into complying, but you will have difficulty forcing compliance. What the broken promise does do is to make it easier for you to negotiate a firm date for the move.