Brown v. Brown

• Decision Date: 27 February 1998
• Citation: 719 So.2d 228
• Parties: James F. BROWN v. Feodornel BROWN. 2961140.
• Court: Alabama Court of Civil Appeals

Page 228

719 So.2d 228

James F. BROWN v. Feodornel BROWN.

2961140.

Court of Civil Appeals of Alabama.

Feb. 27, 1998.

Rehearing Denied April 10, 1998.

Certiorari Denied July 17, 1998

Alabama Supreme Court 1971233.

W. Gregory Hughes, Mobile, for appellant.

Pamela Millsaps, Mobile, for appellee.

THOMPSON, Judge.

This is an appeal from a divorce judgment. James F. Brown ("the husband") and Feodornel Brown ("the wife") separated in June 1995, and shortly thereafter the husband filed a complaint for a divorce. Although the wife filed a motion requesting temporary child support, the trial court never ruled on that motion. The husband voluntarily paid child support of $100 per week until June 1996. In June 1996, the trial court conducted a hearing and on July 2, 1996, entered an order awarding custody of the parties' minor child to the husband.

In September 1996, in response to motions filed by the wife, the trial judge set aside his June 1996 order, recused himself, and reassigned the case to another judge. The testimony at trial indicated that although the July 2, 1996, order, while it was effective, awarded custody of the minor child to the husband, the child continued to reside with her mother. The husband did not pay child support from June 1996 until July 1997.

After a trial, the court, on July 7, 1997, divorced the parties. In its judgment, the trial court awarded the wife custody of the parties' minor daughter, ordered the husband to pay child support and to pay the wife $7,500 for what it called a child support "arrearage." The trial court awarded the husband the marital home and granted the wife a $10,000 judgment lien on the home "representing her interest in the marital property." The husband appeals.

The parties were married in February 1990. A daughter was born during the parties' marriage. At the time of the parties' marriage, the wife had a son from a previous relationship. It is undisputed that James Brown is not the biological or adoptive father of Feodornel Brown's son. After the parties separated, the husband continued to reside at the parties' marital home, in which the parties, at the time of the divorce, had an equity of approximately $5,000 to $7,000. The wife and the children moved in with the wife's parents. The husband has a full-time job the wife attends college and has a part-time job.

Where evidence in a divorce case is presented ore tenus, the judgment of the trial court is afforded a strong presumption of correctness as to its findings of fact. Gann v. Gann, 705 So.2d 509 (Ala.Civ.App.1997). This presumption of correctness is based on the trial court's unique ability to observe the witnesses and assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). A judgment of the trial court based on its findings of fact will be reversed only where it is so unsupported by the evidence as to be plainly and palpably wrong. Gann v. Gann, supra. However, there is no presumption of correctness in the trial court's application of law to the facts. Gaston v. Ames, 514 So.2d 877 (Ala.1987).

The husband first argues that the trial court erred in calculating his child support obligation. In the divorce judgment, the court ordered the wife to provide health insurance for the parties' minor daughter through her employer's health insurance plan. In computing the husband's child support obligation pursuant to the child support guidelines, the trial court added the cost of health insurance and the cost of day care for the parties' daughter to the basic child support obligation. See Rule 32(C)(2), Ala. R. Jud. Admin. On appeal, the husband disputes both the amount included as the cost of health insurance and the cost of the day care services.

The husband argues that the trial court erred in including the total cost of the wife's health insurance in the child support computation. He argues that only that portion of the cost of the health insurance that is attributable to the parties' daughter should be included in the calculation of the child support obligation. This argument is without merit. The child support guidelines provide that "[t]he amount to be added to the 'basic child support obligation' shall be the actual amount of the total insurance premium for family/dependent coverage." Rule 32(B)(7)(b), Ala. R. Jud. Admin. (emphasis added). The trial court properly included the amount of the entire health insurance premium in its child support calculation.

The husband also argues that the trial court improperly included nonwork-related child-care costs in its child support computation. The testimony at trial established that the wife works part-time and is a full-time college student. The parties' daughter attends kindergarten classes and day care. The wife testified that the cost of kindergarten and day care for the daughter was $200 per month. The testimony regarding the wife's work schedule and the daughter's after-class day care is confusing, to say the least. The husband, in his brief on appeal, fails to direct this court to evidence in the record that would tend to establish that the day care services are not work-related. It is not the function of this court to search a record on appeal to find evidence to support a party's argument. Rule 28(a)(4), Ala. R.App. P.; Jenkins v. Landmark Chevrolet, Inc., 575 So.2d 1157 (Ala.Civ.App.1991); Thomason v. Redd, 565 So.2d 259 (Ala.Civ.App.1990). Further, matters regarding child support are within the discretion of the trial court. Hall v. Hubbard, 697 So.2d 486 (Ala.Civ.App.1997). The husband's brief and our own review of the record do not indicate that the trial court abused its discretion in including the cost of the day care services for the daughter in the child support calculation. We also note that the husband briefly argues that additional income should be attributed to the wife. However, this issue was not raised at trial, and it cannot now be raised on appeal for the first time. Rule 4(a)(3), Ala. R.App. P.; Stephens v. Stephens, 699 So.2d 194 (Ala.Civ.App.1997). We find no error in the trial court's calculation of the husband's child support obligation.

In its divorce judgment, the trial court awarded the husband the marital home and awarded the wife a $10,000 lien against the home "representing her interest in the marital property." The husband argues that because the parties' equity in the house is only $5,000 to $7,000, the trial court erred in awarding the wife a $10,000 lien on the house.

Initially, we note that a property division is within the discretion of the trial court and its decision on this issue will not be reversed absent a showing of plain and palpable error. Slaton v. Slaton, 682 So.2d 1056 (Ala.Civ.App.1996). A property division must be equitable, but it need not be equal. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996). The factors the trial court should consider in fashioning its property division include "the ages and health of the parties, the length of their marriage, their station in life and their future prospects, their standard of living and each party's potential for maintaining that standard after the divorce, the value and type of property they own, and the source of their common property." Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996).

At the time of the trial, the wife was 33 years old, was attending college, and was working at a part-time job. The husband was 35 and had a full-time job. The husband's income is substantially more than that of the wife. The parties separated after five years of marriage. Although the husband argues that the home is the parties' only marital asset, the wife requested that she be awarded a portion of the husband's retirement account, which was valued at approximately $25,000. Given the above-listed factors and the facts of this case, we cannot say that the trial court abused its discretion in awarding the wife a $10,000 lien as her interest in the marital property.

The husband also argues that the trial court erred in requiring him to provide life insurance for the "children" of the marriage and in ordering him to be responsible for noncovered medical expenses for the "children." The trial court amended its judgment while this appeal was pending and corrected these errors. See Rule 60(a), Ala. R. Civ. P. Thus, the husband's argument on this issue is moot.

The husband also argues that the trial court erred in awarding the wife a child support arrearage in the amount of $7,500. Although the trial court never entered a pendente lite child support order in this case, it is undisputed that the husband voluntarily paid $100 per week in child support during the first year after the parties separated. The husband paid no child support from June 1996 until the...