Arnold v. Arnold

• Decision Date: 13 July 2007
• Docket Number: No. 2051015.,2051015.
• Citation: 977 So.2d 501
• Parties: Lori B. ARNOLD v. Joseph R. ARNOLD Joseph R. Arnold v. Lori B. Arnold.
• Court: Alabama Court of Civil Appeals

977 So.2d 501

Lori B. ARNOLD v. Joseph R. ARNOLD

Joseph R. Arnold v. Lori B. Arnold.

No. 2051015.

Court of Civil Appeals of Alabama.

July 13, 2007.

J. Cliff Heard of Benkwith & Heard, P.C., Montgomery, for appellant/cross-appellee Lori B. Arnold.

Johnnie Smith, Montgomery, for appellee/cross-appellant Joseph R. Arnold.

THOMPSON, Presiding Judge.

On September 28, 2005, Joseph R. Arnold ("the husband") filed a complaint seeking a divorce from Lori B. Arnold ("the wife"). The wife answered and counterclaimed for a divorce; the wife also sought custody of the parties' minor child. In their complaints, the parties each alleged that they had had a common-law marriage before their April 5, 1996, marriage ceremony. Both parties later disputed the length of that purported common-law marriage.

During the pendency of this matter, the parties stipulated as to a number of issues, including the award of custody of the child to the wife and other issues pertaining to the child. Thereafter, the trial court conducted a hearing at which it received ore tenus evidence. On May 16, 2006, the trial court entered a divorce judgment incorporating the parties' stipulations and resolving the issues upon which the parties' had failed to reach an agreement. The divorce judgment divided the parties property and, among other things, awarded the wife "temporary alimony" of $400 per month for one year. In addition, the trial court ordered the husband to pay $709.12 per month in child support, awarded the husband the right to claim the child as a dependent for income-tax purposes, and required the husband to provide health insurance for the benefit of the child.

The wife filed a postjudgment motion, and the husband filed an opposition to that motion and a "counter" postjudgment motion. On July 24, 2006, the trial court entered a postjudgment order altering the alimony provision of the divorce judgment to award the wife $750 per month in alimony for a period of three years. The wife timely appealed, and the husband timely cross-appealed.

The parties were first married in 1991, and they divorced in 1993. The parties resumed and then ended their romantic relationship several times after their divorce. The wife became pregnant with the parties' child in 1995, and the child was born on March 20, 1996. The parties' second marriage ceremony took place on April 5, 1996.

Much of the parties' testimony was dedicated to their dispute regarding the length of their purported common-law marriage. The wife attempted to demonstrate that the parties had been common-law married before September 1995, approximately seven months before their ceremonial marriage. The husband maintained that the parties' common-law marriage that preceded their ceremonial marriage dated back only to March 20, 1996, the date the parties' child was born.

The parties each submitted a CS-41 child-support income affidavit as required by Rule 32, Ala. R. Jud. Admin. The wife's CS-41 form indicated that her monthly gross income was $2,332.88. We note that in her testimony the wife answered in the affirmative the question whether her income affidavit indicated that she earned $2,339 per month. The reason for the slight discrepancy in the evidence regarding the wife's gross monthly income is not explained in the record on appeal.

The parties disputed the amount of the husband's income. The husband submitted a CS-41 form indicating that his gross monthly income from his employment with the Federal Aviation Administration was $8,413; that amount corresponds to the amount of the husband's 2006 "base" salary. The wife presented evidence indicating that the husband has consistently received income in excess of his base salary. The husband referred to the income he received in addition to his base salary as "differential" income. The wife presented evidence indicating that the husband earned an average of approximately $540 per month in differential income in 2004, approximately $630 per month in differential income in 2005, and approximately $1,500 per month in differential income for 2006 to the date of the May 2006 hearing.

The husband offered his testimony that he believed his differential income might decrease or end in the future. The wife objected to that testimony as speculative, but the trial court overruled her objection. Thereafter, the husband testified:

"[I]f Congress has it before them and if it is the last best offer from the [Federal Aviation Administration] then we will start to lose part of our differentials, the premium pays that we get on top of the flat salary will be reduced as well and if we are ever combined to another facility we stand a chance to take a possible significant drop in pay."

The parties also presented evidence indicating that the cost of after-school care for the child was $42 per week and that the husband typically paid that obligation to the child-care facility. The husband testified that the cost of providing the family or dependent health-insurance coverage available through his employer was $135.59 bi-weekly.

In calculating child support, the trial court determined the husband's gross monthly income to be $8,413, and the wife's gross monthly income to be $2,332.88, for a total combined gross monthly income, as determined by the trial court, of $10,745.88.¹ Thus, the parties' combined gross monthly income exceeds the uppermost limit of the Rule 32, Ala. R. Jud. Admin., schedule for calculating basic child-support obligations. Although the parties' combined gross monthly income exceeded the uppermost limit of the child-support schedule contained in Rule 32, Ala. R. Jud. Admin., the trial court calculated child support by applying the basic child-support obligation found in the child-support schedule for parents with a combined monthly income of $10,000. Additionally, the trial court included the cost of health insurance into its calculation of the husband's child-support obligation, but it did not include the cost of the child's after-school care.

In her appeal, the wife argues, among other things, that the trial court erred in allowing the husband's testimony, which is quoted earlier in this opinion, that his differential pay might decrease in the future. "The trial court's decision to admit the testimony will not be disturbed on appeal except for an abuse of discretion." Attalla Golf & Country Club, Inc. v. Harris 601 So.2d 965, 969 (Ala.1992). In his testimony, the husband indicated that if certain actions occurred as a result of Congressional debate, there was a possibility that his differential pay could be affected. Although we agree with the wife that the husband's testimony on the issue of his differential pay was speculative, we do not necessarily agree that the testimony was inadmissible. Accordingly, we cannot say that the trial court erred in admitting the testimony.

However, the speculative nature of the husband's testimony regarding his differential pay does affect the weight that testimony should be afforded. It is clear that the trial court relied on the husband's testimony regarding his differential pay in determining the husband's gross monthly income because the trial court failed to include any amount of differential pay in determining the husband's gross monthly income. For the purpose of determining child support, "gross income" is defined as

"income from any source, [which] includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interests, trusts, annuities, capital gains, Social Security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and preexisting periodic alimony."

Rule 32(B)(2)(a), Ala. R. Jud. Admin. Consistent with that definition, this court has held that "the trial court must take into account all sources of income of the parents when computing support obligations." Massey v. Massey, 706 So.2d 1272, 1274 (Ala.Civ.App.1997) (emphasis added). Income such, as the husband's differential pay, "to the extent that such income is sufficiently substantial and continuing[] and ... can be accurately determined," must be included in determining a party's gross income for the purposes of determining child support. State ex rel. Smith v. Smith, 631 So.2d 252, 255 (Ala. Civ.App.1993). The trial court does not have the discretion to disregard a source of income in determining a parent's gross monthly income for the purposes of determining child support. Massey v. Massey, supra; Rogers v. Sims, 671 So.2d 714, 716 (Ala.Civ.App.1995).

In Simmons v. Simmons, 600 So.2d 305, 306 (Ala.Civ.App.1992), this court reversed a judgment modifying child support when the father had presented evidence indicating that his income would decrease in the future. In that case, the father had presented a memorandum from his employer indicating that, at some point in the future, the employer would no longer offer the opportunity to earn overtime pay. Based on that evidence, the trial court reduced the father's child-support obligation. This court concluded that the modification judgment was "based on a mere supposition that the father's income `may' be decreased at a future date." Simmons v. Simmons, 600 So.2d at 306.

In this case, the record indicates that the husband earned substantial differential pay in the years preceding the hearing in this matter. The husband testified that, assuming certain contingencies occurred, his income from differential pay might decrease in the future. The husband presented no evidence indicating that at the time of the hearing any of those contingencies had occurred or that his income, including differential pay, had in fact decreased.

The husband's differential pay constitutes income that must be included in a determination of his gross income. See Rule 32(B)(2)(a), Ala. R. Jud. Admin.; Massey v. Massey, supra. The husband's testimony that his differential pay might decrease in...