House v. House, 2130660.

• Decision Date: 10 July 2015
• Docket Number: 2130660.
• Parties: Anthony Scott HOUSE v. Lee Anne HOUSE. Lee Anne House v. Anthony Scott House.
• Court: Alabama Court of Civil Appeals

185 So.3d 1112

Anthony Scott HOUSE

v.Lee Anne HOUSE.

Lee Anne House

v.Anthony Scott House.

2130660.

Court of Civil Appeals of Alabama.

July 10, 2015.

Judy H. Barganier, Montgomery, for appellant/cross-appellee Anthony Scott House.

V. Wylynn Gilmore Phillippi, Grove Hill, for appellee/cross-appellant Lee Anne House.

DONALDSON, Judge.

Anthony Scott House ("the husband") appeals and Lee Anne House ("the wife") cross-appeals from a divorce judgment of the Monroe Circuit Court ("the trial court") entered following a trial. The judgment ordered the husband to pay the wife alimony in gross. The husband filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P

., seeking to alter, amend, or vacate the judgment or to "hold a new trial or hear additional evidence." In the motion, the husband argued that the evidence presented at trial did not establish that the husband's estate at the time of the divorce was sufficient to pay the awarded amount of alimony in gross. The husband requested a hearing on the motion; however, the motion was denied without a hearing. In her cross-appeal, the wife asserts that the trial court should have awarded periodic alimony to her. Because the husband's Rule 59 motion appears to be meritorious, the husband was entitled to be heard on his motion. Accordingly, we reverse the trial court's order denying the husband's Rule 59 motion and remand the case to the trial court for it to hold a hearing on the motion and to determine the appropriate relief to be granted. Because the wife did not request periodic alimony in the trial court or present sufficient arguments on appeal as to why the failure to award periodic alimony on this record is reversible, we affirm the divorce judgment insofar as it does not include an award of periodic alimony to the wife, which is the only issue the wife raises in her cross-appeal.

Facts and Procedural History

The wife and the husband were married on August 14, 1999. At the time of the divorce, the husband was 38 years old and the wife was 37. They have three minor children who were born in 2003, 2007, and 2010, respectively. At the time of the marriage, the husband was in college and the wife worked as an elementary-school teacher. The husband graduated from college in 2000 with a degree in chemical engineering and worked as an engineer from 2000–2006. In June 2006, the wife obtained a master's degree in education.

The couple lived together in the marital residence in Monroe County. After several years of marriage, the husband decided he wanted to become a physician, and he was accepted to medical school in Mobile. In August 2006, the husband left the marital residence and moved to Mobile to begin attending medical school. The husband graduated medical school in 2010 and completed his medical residency in Mobile. The wife and the children remained in Monroe County while the husband was in medical school and while he completed his medical residency.

In June 2012, the husband learned that the wife was having an affair. The husband subsequently became involved in a romantic relationship with someone else.

On September 4, 2012, the wife filed a complaint for a divorce in the trial court. On December 18, 2012, the trial court entered a temporary order incorporating an agreement between the parties providing for joint legal custody of the children but placing physical custody with the wife and granting visitation to the husband. Pursuant to the agreement and the temporary order, the husband was responsible for paying child support in the amount of $1,050 a month.

A trial was held on December 12, 2013. The wife testified that the husband had returned to the marital home twice a month when he had attended medical school but that he had not returned often during his residency. While the husband had lived in Mobile, the wife had cared for the children, had managed the household, and had paid the mortgage payments for the marital residence. She testified to having had financial difficulties in maintaining the expenses of the marital home and in raising the children.

After completing his residency in 2013, the husband moved back to Monroe County, where he began working as a medical doctor. At trial, the husband was earning approximately $78,000 annually. The wife worked as an assistant principal for an elementary school, earning $55,492 a year.

The marital home is a house built in 2005 on land the parties received as a gift from the wife's parents. The construction cost was $85,000. The husband contributed $17,000 for a down payment on the marital home, which he obtained by depleting all the funds in his retirement account. Evidence presented at trial valued the marital home at $135,000. The balance of the mortgage at the time of the final hearing was $58,286. The wife testified that the equity in the property was approximately $76,700. The husband testified that the value of the contents of the house was $5,000. The wife testified that the value of the contents was $1,000.

At the time of the final hearing, the husband drove a 2011 Toyota Tundra with a value of $26,000 and debt of $26,000. The wife drove a 2004 Ford Expedition worth $5,000. The wife had a retirement account valued at $1,965.74 on August 1, 1999, and another account valued at $43,020.59 on December 5, 2013, and $36,010 on July 1, 2012. The wife also had a third retirement account valued at $28,963. The husband owned a whole-life insurance policy with a cash value of $4,000 and a term-life insurance policy on his own life with a death benefit of $352,000. The wife had a whole-life insurance policy with a cash value of $4,000 and a term-life insurance policy on her own life with a death benefit of $437,000.

The balance on the husband's student loans the husband had obtained to attend medical school totaled $181,005. The husband also had received $120,000 in a forgivable loan from the Rural Health Foundation. The husband testified that the $120,000 loan will be forgiven if he practices medicine in a rural area for a certain amount of time, which was not specified in the record. The wife had a balance on her student-loan debt of $2,500 and a credit-card balance of $6,000.

On March 21, 2014, the trial court entered a judgment divorcing the parties. The judgment incorporated an agreement between the parties maintaining joint legal custody of the children, physical custody of the children with the wife, and visitation for the husband. The husband's child-support obligation was established at $1,230 a month, and the parties were ordered to split the cost of the youngest child's preschool education. The trial court also made the following findings of fact:

"2. The Court finds from the evidence, at the time the [husband] left his job as an engineer to attend medical school his annual gross earnings were approximately $50,000 and [the wife's] annual gross earnings were $40,000. Each party was each contributing to the household, for a total gross household income of $90,000, with the [husband] contributing 56% of the household income. The [husband]'s contribution of $50,000 terminated upon his entering medical school. Even though the [husband] contributed some income to the household expenses, it was drastically reduced from the amount he contributed at the time that he left his job; however, the household expenses and cost of living did not reduce.

"3. The Court finds that the [husband] financed the cost of his medical school and living expenses through student loans and scholarships from the Rural Health Foundation, totaling over $120,000.00. The [husband] currently has outstanding debt owed on student loans in the amount of $181,005.05, which he is paying back at the rate of $1,174.00 per month.

"4. The Court finds from the evidence, at the time of the marriage, the [wife] had a college degree[ ] and was working as a teacher in the Monroe County School System. The [husband] was still in school, in the process of finishing his degree in engineering. The [husband] finally graduated and obtained employment as an engineer with Honeywell. The [husband] worked out of the home. The parties lived and resided in Monroe County, Alabama.

"5. The Court finds from the evidence, after several years as an engineer, the [husband] decided to return to school and pursue a medical degree, which he has successfully completed and is currently working in Monroe County as a medical doctor.

"6. The Court finds from the evidence, the [wife] continued to work outside the home in her field as an educator in Monroe County, Alabama, and through her hard work she rose to the level of Assistant Principal at the Excel Elementary School in Monroe County, Alabama, where she is currently employed.

"7. The Court further finds from the evidence, the parties had one child at the time, the [husband] chose to leave his career as an engineer and attend medical school. Two more children were born to the parties while he was in medical school. All three children resided in the marital home with the [wife] while the [husband] attended medical school and did his residency over a period of seven and a half years.

"8. The Court further finds from the evidence, the employment income of the [wife] during said seven and a half years was used to support the [wife], the minor children and the expenses of operating a household. The Court further finds the [husband] had income he received from student loans and scholarships through the Rural Health [Foundation,] [w]hich paid for his education and maintained the [husband].

"9. The Court further finds from the evidence, there is a dispute between the parties as to whether or not the [husband] contributed to the household expenses during the four years of medical school and the three and a half years of residency. Further, there is a dispute as to the amount of income contributed by the [husband] to the household expenses during his four years of medical school and three years of residency.

"10. The Court further finds from the evidence, the

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