Kean v. Kean
Decision Date | 24 July 2015 |
Docket Number | 2140029. |
Parties | Tyler KEAN. v. Christine KEAN. Christine Kean. v. Tyler Kean. |
Court | Alabama Court of Civil Appeals |
Floyd C. Enfinger, Jr., and Margaret L. Enfinger of Law Office of Floyd C. Enfinger, Jr., P.C., Montrose, for appellant/cross-appellee Tyler Kean.
Stephen P. Johnson of Brackin, McGriff & Johnson, P.C., Foley, for appellee/cross-appellant Christine Kean.
MOORE
, Judge.
Tyler Kean ("the husband") appeals from a divorce judgment entered by the Baldwin Circuit Court ("the trial court"), arguing that the trial court erred in failing to include all the income of Christine Kean ("the wife") when calculating child support and in awarding the wife periodic alimony. The wife cross-appeals, arguing that the trial court erred in failing to include all the income of the husband when calculating child support.
Background
On February 10, 2010, the wife filed a complaint seeking a divorce from the husband. After protracted proceedings, the trial court entered a final judgment on September 4, 2014, which, among other things, awarded the wife sole physical custody of the parties' three minor children, awarded the wife $1,250 per month in child support, and awarded the wife $2,200 per month in periodic alimony. The husband timely appealed on October 14, 2014. The wife timely cross-appealed on October 16, 2014.
In its final judgment, the trial court explained that it had followed Rule 32
, Ala. R. Jud. Admin., in computing its child-support award. The trial court determined that the husband was receiving $80,000 per year in annual income and imputed monthly income of $628 to the wife based on its finding that she could work 20 hours per week at minimum wage. The trial court did not explain how it calculated the periodic-alimony award.
Analysis
The husband argues that, in calculating child support, the trial court erred in failing to include the wife's trust income. The wife testified that she receives $3,000 per month from a trust established by her father. Rule 32(B)(2)(a)
, Ala. R. Jud. Admin., expressly provides that "trust income" should be included in "gross income" when computing child support. In the forms used by the trial court to determine child support, the trial court did not include the wife's trust income. The wife concedes in her appellate brief that the trial court should have included the trust income.1 Thus, we conclude that the trial court erred in failing to include the wife's trust income when calculating child support.
The wife complains that the $80,000 in annual income the trial court attributed to the husband did not include expense reimbursements the husband received from the restaurant he operates as a sole proprietorship. Rule 32(B)(4)
, Ala. R. Jud. Admin., provides: "Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal-living expenses." See also Rule 32(B)(3) (defining "self-employment income"). A certified public accountant retained by the wife testified that, based on a review of the financial records from the husband's restaurant generated between 2007 and 2012, the husband had received an average annual income from that business of $174,245, which income included payments from the business to cover some of the parties' personal expenses. The accounting expert retained by the husband agreed that the husband had received $174,425 per year as the wife's accountant had determined. The husband estimated that he earned only $80,000 per year in gross income from the business, but he did not dispute that the business had paid additional personal expenses for him as the experts testified.
At the close of the trial, the trial court informed the parties that it intended to use $80,000 as the husband's gross income for child-support purposes. The wife's counsel noted that both experts had testified that the husband had actually received "$176,000 a year" from the business. The trial court then stated:
The wife did not file a postjudgment motion, so the trial court did not have an opportunity to reconsider its ruling. However, the issue is properly before this court. See Rule 52(b), Ala. R. Civ. P
.; and Weeks v. Herlong, 951 So.2d 670 (Ala.2006) ( ).
We agree with the wife that the trial court erred in failing to consider all the income the husband received from his business when determining child support. Therefore, we reverse that aspect of the judgment awarding child support and remand the cause for the trial court to redetermine the amount of child support in accordance with this opinion.
The husband argues that the trial court erred in awarding the wife any periodic alimony. The husband contends (1) that the wife did not show a need for support and (2) that the record shows that he does not have the ability to pay the wife the $2,200 per month in periodic alimony as ordered by the trial court. In the judgment, the trial court simply awarded the wife $2,200 per month in periodic alimony without making any findings of fact. At the close of the trial, the trial court addressed its award by saying:
Those statements indicate that the trial court determined that the wife needed periodic alimony to pay her living expenses, except for her automobile payment, and that the trial court determined that an award of $2,200 a month would be sufficient to meet those needs.2 Thus, this court may review the evidence to determine if it sufficiently supports those findings. See Weeks, supra. The trial court, however, did not specifically find that the husband had the ability to meet those needs as well as the other obligations imposed on him in the divorce judgment. See Shewbart v. Shewbart, 64 So.3d 1080, 1088 (Ala.Civ.App.2010)
. The husband did not point out that omission to the trial court or otherwise argue that the evidence failed to support any implicit finding that he could afford to pay the periodic-alimony award. Thus, we cannot consider any issue regarding the alleged inability of the husband to pay the periodic-alimony award, which the husband raises for the first time on appeal. See New Props., L.L.C. v. Stewart, 905 So.2d 797, 801–02 (Ala.2004) (). See also Cooper v. Cooper, 160 So.3d 1232 (Ala.Civ.App.2014) ; and Rieger v. Rieger, 147 So.3d 421, 429 (Ala.Civ.App.2013).
Periodic alimony is intended as income to be payable from one spouse to another to enable the recipient spouse, to the extent possible, to maintain his or her standard of living as it existed during the marriage, i.e., the "economic status quo. " Orr v. Orr, 374 So.2d 895, 897 (Ala.Civ.App.1979)
. In order to obtain periodic alimony, a petitioning spouse must demonstrate "a need for continuing monetary support to sustain the former, marital standard of living that the responding spouse can and, under the circumstances, should meet." Shewbart, 64 So.3d at 1087.
(citations omitted).
The wife submitted an exhibit itemizing her monthly expenses, which included costs associated with caring for the parties' children and which totaled approximately $7,315 per month. The husband maintains that the cost of automobile payments, rent, and country-club membership dues, which were all included on the wife's...
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