Hood v. Hood

• Decision Date: 29 July 2011
• Docket Number: 2100358.
• Citation: 76 So.3d 824
• Parties: Lori HOOD v. Scott HOOD.
• Court: Alabama Court of Civil Appeals

76 So.3d 824

Lori HOOD

v.Scott HOOD.

2100358.

Court of Civil Appeals of Alabama.

July 29, 2011.

Richard L. Watters, Mobile, for appellant.

W. Gregory Hughes, Mobile, for appellee.

THOMPSON, Presiding Judge.

Lori Hood (“the mother”) appeals from the judgment of the Mobile Circuit Court in favor of Scott Hood (“the father”). For the reasons stated herein, we affirm the judgment in part and reverse it in part.

This is the second appeal involving these parties related to their 2001 divorce. In the first appeal, this court recounted the following procedural history:

“[The father] and [the mother] were divorced by a 2001 judgment of the trial court that incorporated an agreement reached by the parties. The divorce judgment awarded the mother custody of the two minor children born of the parties' marriage, awarded the father a standard schedule of visitation, ordered the father to pay $419 per month in child support, and required the father to provide health insurance for the benefit of the parties' children and to reimburse the mother for any noncovered medical expenses. In addition, the divorce judgment stated that the parties waived all claims to alimony, but paragraph five of the judgment required the father to pay the mother $296 per month from income from a trust fund established for the benefit of the father; paragraph five of the divorce judgment also specified that the amount to be paid to the mother pursuant to that paragraph would increase if the monthly benefits paid to the father increased.²

“In April 2007, the father filed a petition for a rule nisi, seeking to have the mother held in contempt for allegedly denying him visitation with the parties' two children. Also in April 2007, the father filed a complaint seeking to modify custody and to terminate his obligation to pay the mother amounts pursuant to paragraph five of the divorce judgment. The mother responded to the father's petition for a rule nisi by filing an answer denying the material allegations in that petition. She also counterclaimed, seeking an increase in the father's child-support obligation and seeking to have the father held in contempt for his failure to pay certain amounts as required by the 2001 divorce judgment.

“The trial court conducted an ore tenus hearing. During that hearing, the mother requested that the trial court increase what she characterized as the father's ‘alimony’ obligation imposed by paragraph five of the 2001 divorce judgment. The father did not object to that request, and, therefore, we conclude that that claim was tried by the implied consent of the parties. See Rule 15(b), Ala. R. Civ. P.

“On June 11, 2008, the trial court entered an order in which it denied the mother's contempt claim and her claim seeking an increase in child support, denied the father's claim seeking a modification of custody, and granted the father's claim seeking to modify visitation.

“__________

The mother testified that the father owed her child support based on the fact that the trial court's previous modification of the father's child-support obligation had been retroactive to June of 2008. She also testified that she was seeking an attorney's fee of $10,000.

On November 9, 2010, the trial court entered a judgment terminating the father's obligation under paragraph five of the parties' divorce judgment to pay the mother a portion of the income of his trust. The trial court construed that obligation as periodic alimony and specifically found that it was due to be terminated because the mother had admitted to cohabiting with her boyfriend. The trial court also awarded custody of the parties' daughter to the father and modified the father's child-support obligation. The trial court denied the parties' remaining claims. The trial court made only a single finding of fact in the judgment—that the mother had admitted to cohabiting with her boyfriend; the trial court made no findings of fact bearing on the mother's allegations that the father was in arrears as to his child-support obligation or that he had failed to pay an attorney fee to her as the trial court had previously ordered.

The mother filed a motion to alter, amend, or vacate the judgment in which she argued that the father's request for custody of the parties' daughter was no longer pending at the time of the trial and that no evidence was put forward in support of that request. She also argued that the trial court had erred in interpreting paragraph five of the divorce judgment as providing an award of periodic alimony to the mother and that the trial court should have held the father in contempt for failing to pay amounts that were due pursuant to that provision. The trial court granted the mother's motion in part and set aside those portions of its judgment modifying custody of the parties' daughter and modifying the father's child-support obligation. The trial court denied the balance of the mother's postjudgment motion. The mother appeals.

On appeal, the mother contends that the trial court erred in concluding that the award of a portion of the income from the father's trust constituted an award of periodic alimony rather than an award of alimony in gross.² She points out that paragraph four of the divorce judgment provides that “[e]ach party waives all claims to alimony, past, present, and future,” and that she testified at the hearing that the award of funds in paragraph five had “always been a property settlement.” Thus, she argues, that portion of the trial court's judgment terminating the father's obligation to pay funds to the mother under paragraph five of the divorce judgment should be reversed. We disagree.

In Daniel v. Daniel, 841 So.2d 1246 (Ala.Civ.App.2002), this court discussed the difference between periodic alimony and alimony in gross:

“Our supreme court has explained the difference between periodic alimony and alimony in gross. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Alimony in gross is considered ‘compensation for the [recipient spouse's] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple's jointly owned assets is not practicable.’ Hager v. Hager, 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award ‘must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.’ Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App.1986). It must also be payable out of the present estate of the paying spouse as that estate exists at the time of the divorce. Hager v. Hager, 293 Ala. at 55, 299 So.2d at 750. In other words, alimony in gross is a form of property settlement. Hager v. Hager, 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award is generally not modifiable. Id.

“Periodic alimony, on the other hand, ‘is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].’ Hager v. Hager, 293 Ala. at 55, 299 So.2d at 750. Its purpose ... ‘is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage.’ O'Neal v. O'Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996) (emphasis added). Periodic alimony is modifiable based upon changes in the parties' financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999). The paying spouse's duty to pay periodic alimony may be terminated by petition and proof that the recipient spouse has remarried or is cohabiting with a member of the opposite sex. Ala.Code 1975, § 30–2–55.”

841 So.2d at 1250.

As previously noted, paragraph five of the divorce judgment provides:

“5. The parties agree that the [father] shall pay to the [mother] the sum of $296 per month from the income of the trust which is identified as ‘The Helen Trane Hood Trust for the Benefit of Benjamin Scott Hood,’ with said monthly payment to increase by the same percentage as the increase in the monthly benefits increase which are paid to the [father] from said trust.”

The amount of an award of alimony in gross is required to be certain, see Daniel, supra; however, the award made in this paragraph is not. First, there is no provision limiting the amount of time during which the award is to be paid. Second, the award was subject to an automatic increase upon the happening of an uncertain future event, i.e., an increase in benefits paid to the father. Thus, there is no way to determine the amount of the award to which the mother was entitled. See Rose v. Rose, 70 So.3d 429, 433 (Ala.Civ.App.2011) (“Additionally, the former wife's award of a share of the former husband's benefits cannot be deemed to constitute an unmodifiable division of marital property, or alimony in gross, because both the time at which the former wife's award will completely vest and the total amount the former wife will receive are indefinite.”).

Furthermore, the parties have treated the award as constituting periodic alimony rather than as nonmodifiable alimony in gross. For example, both parties have sought a modification of the award, the mother in the action that led to the previous appeal and the father in the action leading to the present appeal. Moreover, the mother testified that she has consistently treated her receipt of the monthly payment called for in paragraph five as income on her income-tax returns, which is not consistent with its treatment as alimony in gross but, instead, is consistent with its treatment as periodic alimony. See Rose, 70 So.3d at 433 (“The record also shows that the former wife has listed her share of the former husband's benefits as income in her...