Butts v. Butts

• Decision Date: 12 June 1992
• Parties: Rebecca Lynn BUTTS v. Marc Marion BUTTS. 2900704.
• Court: Alabama Court of Civil Appeals

Page 1038

600 So.2d 1038

Rebecca Lynn BUTTS v. Marc Marion BUTTS.

2900704.

Court of Civil Appeals of Alabama.

June 12, 1992.

B. Greg Wood of Wood, Hollingsworth & Willis, Talladega, for appellant.

Tom R. Ogletree of Ogletree and Livingston, Sylacauga, for appellee.

THIGPEN, Judge.

This is a divorce case.

The wife filed for divorce and following an ore tenus proceeding, a final divorce decree was entered which, inter alia, granted custody of the two children to the wife subject to the visitation privileges for the husband, ordered the husband to pay child support in accordance with the guidelines of Rule 32, Alabama Rules of Judicial Administration, and divided the marital property. The wife's post-judgment motion resulted in an order amending the original decree as it pertained to the parties claiming the children as dependent exemptions for income tax purposes. The wife requested a hearing to consider her motion to set aside the judgment, and after a hearing, the motion was denied. Hence, this appeal.

On appeal, the wife raises numerous issues concerning the amounts of the property division and child support obligation, and the visitation awarded to the husband for specific holidays. There exists a multitude of cases on these matters. It is well-established that the resolution of these matters lies soundly within the discretion of the trial court and absent abuse, the judgment of the trial court on these matters will not be disturbed on appeal. See, e.g. Conradi v. Conradi, 567 So.2d 364 (Ala.Civ.App.1990); Waid v. Waid, 540 So.2d 764 (Ala.Civ.App.1989); Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987); Wiggins v. Wiggins, 498 So.2d 853 (Ala.Civ.App.1986); Brannon v. Brannon, 477 So.2d 445 (Ala.Civ.App.1985); Ross v. Ross, 447 So.2d 812 (Ala.Civ.App.1984). It is also well-established that when a trial court is presented ore tenus evidence in a divorce proceeding, its resulting judgment is presumed correct if supported by the evidence. Blankenship v. Blankenship, 534 So.2d 320 (Ala.Civ.App.1988).

The wife's first challenges concern the division of the marital assets and liabilities. Specifically, she questions the trial court's disposition of the husband's employee benefit accounts, the mortgage on the marital residence which she was awarded, and the amount of her award for alimony in gross.

Alimony in gross is similar to a property division in that it is based on the value of the wife's interest in the husband's estate at the time of the divorce and it is absolute. See Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). A property division is not required to be equal, only equitable, and what is equitable rests within the broad discretion of the trial court. Wiggins, supra, and Ross, supra. Even a property division that favors one party over the other does not in itself constitute an abuse of discretion. Jordan v. Jordan, 547 So.2d 574 (Ala.Civ.App.1989).

An extensive recital of specific details regarding the factors and information which the trial court considered here in fashioning its property division and alimony in gross award serves no legal purpose. The record is replete with evidence regarding the specific complaints of the wife, i.e., the nature of the husband's employee benefit accounts, which he was awarded; the marital residence itself, including its mortgage and its furnishings, and the adjoining lot, all of which the wife was awarded; the automobiles awarded to each party and the debts and conditions of each; the careers of each party, who each have advanced college degrees, etc. The record is also clear that the wife's alleged expenses were challenged by the husband.

The wife was not granted periodic alimony and that is not an issue on appeal. The wife is a tenured teacher with a master's degree. There is no evidence that the wife is physically, mentally, or in any other way, incapable of continuing her chosen career and increasing her income, nor to indicate that she is unable to consider supplemental summer and holiday employment as many teachers choose to do.

The record contains ample evidence regarding the financial conditions of each party and other appropriate factors, which the trial court utilized in its determination. There is an abundance of evidence supporting the trial court's determination, and we find no abuse of judicial discretion on these issues.

The wife next complains that the child support award is inadequate "to meet household expenses and debt payments," and that the trial court erred "in awarding income tax exemptions for the minor children to the non-custodial parent, without providing for a corresponding increase in child support."

The record reveals that the trial court ordered child support in accordance with the guidelines of Rule 32, A.R.J.A., utilizing financial information provided by the parties. There is a rebuttable presumption that the guidelines will result in the proper amount of child support being established. Rule 32, A.R.J.A. Furthermore, the trial court may, within its discretion, determine that the amount of support within the guidelines is inappropriate under the circumstances and order a different amount of support. Stewart v. Kelley, 587 So.2d 384 (Ala.Civ.App.1991); and Doyle v. Doyle, 579 So.2d 651 (Ala.Civ.App.1991). Our review of the record evidence discloses nothing to rebut that presumption of correctness and to allow the trial court to establish an amount of child support different from that set out in the guidelines.

The trial court's amended order allows each parent to claim a dependent exemption for one of the two children for income tax purposes. That equal division of the dependent exemptions results in similar adjustments in the net pay for each party. The trial court has within its discretion the allocation of the dependency exemptions and is not required to factor into its child support computation the income tax exemption. Knight v. Knight, 579 So.2d 679 (Ala.Civ.App.1991). We find no abuse of discretion in the trial court's decision to allow each parent one exemption and in the trial court's utilization of the guidelines in establishing the child support obligation.

The wife next asserts error in the trial court's order which continued the husband's child support obligation after the children reached the age of majority while the children were enrolled in college. She argues that the guideline amount is insufficient for college-related expenses and requests that in addition to the guideline amount, the husband should be ordered to pay an amount "not less than seventy percent (70%) of the expenses for each child for tuition, room, board, books, supplies, fees and transportation for obtaining a college education after the age of majority." The husband openly expresses a desire for the children to complete college and a willingness to financially contribute to that end. He persuasively argues that the actual amount of college expenses for the children cannot be ascertained at this time and that an award of a sum certain for college expenses is premature. In brief, the husband poses no argument regarding the amount of post-minority child support he is ordered to pay and specifically requests that the issue regarding this amount of post-minority child support be affirmed.

Child support determinations involve the parent's present ability to meet the...