Zarr v. Zarr

• Decision Date: 08 January 2016
• Docket Number: 2140275.
• Citation: 201 So.3d 559
• Parties: Janet ZARR v. Robert ZARR, Jr.
• Court: Alabama Court of Civil Appeals

201 So.3d 559

Janet ZARR
v.
Robert ZARR, Jr.

2140275.

Court of Civil Appeals of Alabama.

Jan. 8, 2016.

201 So.3d 562

Mark D. Ryan and Samuel K. Wilkes of Ryan & Wilkes, P.C., Bay Minette, for appellant.

Carson I. Nicolson of Stone, Granade & Crosby, P.C., Daphne, for appellee.

PITTMAN, Judge.

Janet Zarr (“the wife”) appeals from a judgment of the Baldwin Circuit Court (“the trial court”) dissolving her marriage to Robert Zarr, Jr. (“the husband”). We affirm in part, reverse in part, and remand with instructions.

The husband, who was born in 1963, and the wife, who was born in 1964, married in March 1986. Three children were born of the marriage; however, only the youngest child was still a minor when the divorce judgment was entered in August 2014.¹

In January 2011, the parties separated, and, later that same month, the husband brought an action against the wife, seeking a divorce, custody of the parties' minor child, and an equitable division of the parties' property. The wife answered the husband's complaint and counterclaimed for a divorce, custody of the parties' minor child, an award of child support, an equitable division of the parties' property, and an award of periodic alimony. Thereafter, the trial court entered an order adopting an agreement between the parties that the husband would place in escrow pending resolution of the divorce action one-half of certain funds BP p.l.c. (“BP”) had paid to Coastal Marine Builders, LLC (“CMB”), a company owned and operated by the husband, for losses CMB had sustained as a result of the BP Deepwater Horizon oil spill (“the escrowed CMB money”); that the wife would have exclusive possession of the parties' marital residence; and that the husband would pay the wife $1,100 per month while the divorce action was pending.

The trial court received evidence ore tenus on 4 separate days during a 23–month period that began in May 2012 and ended in March 2014. In August 2014, the trial court entered a judgment divorcing the parties; finding that both parties were responsible for the breakdown of the marriage; awarding them joint physical custody of their minor child, with custody alternating weekly; ordering the husband to pay child support in the amount of $653 per month; ordering the husband to pay periodic alimony in the amount of $500 per month; dividing the parties' property; and apportioning responsibility for the payment of the parties' debts. The wife filed a postjudgment motion challenging, among other things, the child-support award, the periodic-alimony award, and the property division. Following a hearing, the trial court entered an order granting the wife's postjudgment motion insofar as it had sought relief regarding a clerical error in the judgment but denying it insofar as it had sought relief regarding the child-support award, the periodic-alimony award, and the property division. Thereafter, the wife timely appealed to this court.

Because the trial court received evidence ore tenus, our review is governed by the following principles:

201 So.3d 563

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ' Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002) ). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985) ). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

The wife first argues that the trial court erred with respect to the child-support award because, the wife says, the trial court deviated from the Rule 32, Ala. R. Jud. Admin., child-support guidelines without making an express finding that it would be manifestly unjust or inequitable to apply those guidelines and without stating the reasons why it would be manifestly unjust or inequitable to apply those guidelines. Rule 32(A), Ala. R. Jud. Admin., provides, in pertinent part:

“Guidelines for child support are hereby established for use in any action to establish or modify child support, whether temporary or permanent. There shall be a rebuttable presumption, in any judicial or administrative proceeding for the establishment or modification of child support, that the amount of the award that would result from the application of these guidelines is the correct amount of child support to be awarded. A written finding on the record indicating that the application of the guidelines would be unjust or inappropriate shall be sufficient to rebut the presumption if the finding is based upon:

“....

“(ii) A determination by the court, based upon evidence presented in court and stating the reasons therefor, that application of the guidelines would be manifestly unjust or inequitable. ”

(Emphasis added.) Rule 32(A)(1), Ala. R. Jud. Admin., lists examples of reasons for deviating from the Rule 32 guidelines. One of those reasons is “[s]hared physical custody.” Rule 32(A)(1)(a), Ala. R. Jud. Admin.

In the case now before us, the pertinent part of the trial court's judgment states:

“6. Child support is hereby set by this Court at $653.00 per month. The Court notes the child support set is a deviation from the Rule 32 Guidelines filed in this matter, as the Court is not counting any income that the Husband might generate in the future from Coastal Marine Builders, LLC, and this figure is solely based [on] income that the Husband receives from Infirmary Health Care Services.”

(Emphasis added.)

In DeYoung v. DeYoung, 853 So.2d 967, 970 (Ala.Civ.App.2002), this court stated:

“When the court determines that the application of the guidelines would be manifestly unjust or inequitable and then deviates from those guidelines in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin.

201 So.3d 564

M.S.H. v. C.A.H., [829 So.2d 164 (Ala.Civ.App.2002) ] (citing Thomas [v. Norman ], 766 So.2d [857] at 859 [ (Ala.Civ.App.2000) ] ). Rule 32(A), Ala. R. Jud. Admin., allows the trial court to deviate from the guidelines so long as the deviation is based on ‘evidence presented in court’ contained in a ‘written finding on the record.’ In other words, the subsection requires the trial court to state a reason justifying its deviation from the guidelines. However, because child support is for the benefit of the minor child, see State ex rel. Shellhouse v. Bentley, 666 So.2d 517, 518 (Ala.Civ.App.1995), the best interest of the child is the controlling consideration of the trial court in any action seeking to modify child support. Gautney v. Raymond, 709 So.2d 1279, 1281 (Ala.Civ.App.1998).”

In the case now before us, the trial court stated that it was deviating from the Rule 32 guidelines by omitting any income the husband might derive in the future from CMB from his gross income for purposes of calculating his child-support obligation; however, the trial court did not make written findings of fact indicating why that deviation from the Rule 32 guidelines was justified. We can infer from the fact that the trial court awarded the parties joint physical custody, with custody alternating weekly, that the trial court deviated from the Rule 32 guidelines because it had awarded the parties shared physical custody, see Rule 32(A)(1)(a) ; and Bonner v. Bonner, 170 So.3d 697, 705 (Ala.Civ.App.2015) (“ ‘[S]hared physical custody is a recognized basis for ... a deviation [from the Rule 32 guidelines].’ ” (quoting Shewbart v. Shewbart, 19 So.3d 223, 231 (Ala.Civ.App.2009) )); however, a trial court is required to state its reason for deviating from the Rule 32 guidelines expressly, see DeYoung, supra. Therefore, we reverse the trial court's judgment insofar as it awarded the wife child support and remand the cause with...