Whaley v. Whaley

Decision Date26 August 2016
Docket Number2150323.
Parties Kennon W. WHALEY v. Rhonda West WHALEY.
CourtAlabama Court of Civil Appeals

218 So.3d 360

Kennon W. WHALEY
v.
Rhonda West WHALEY.

2150323.

Court of Civil Appeals of Alabama.

Aug. 26, 2016.


218 So.3d 362

Beverlye Brady, Auburn, for appellant.

Submitted on appellant's brief only.

MOORE, Judge.

Kennon W. Whaley ("the husband") appeals from a divorce judgment entered by the Lee Circuit Court ("the trial court"). We affirm the trial court's judgment in part and reverse it in part.

Procedural History

On April 3, 2013, Rhonda West Whaley ("the wife") filed a complaint seeking a divorce from the husband. On May 10, 2013, the husband answered the complaint and counterclaimed for a divorce. On June 7, 2013, the wife filed a reply to the counterclaim.

After a trial, the trial court entered an order, on September 29, 2014, divorcing the parties; awarding the parties joint custody of the parties' children and specifically setting the husband's custodial periods as every other Friday night through the following Wednesday morning, on holidays in alternating years, and on certain other special occasions; and reserving the issues of child support, alimony, and property division. After a second trial on the remaining issues, the trial court entered a judgment on November 27, 2015, that, in pertinent part, imputed monthly income of $8,500 to the husband and $1,732 to the wife; ordered the husband to pay $1,127 per month in child support; ordered the husband to pay the wife periodic alimony in the amount of $3,673 per month; ordered the husband to pay $35,000 to the wife as a property settlement; awarded the marital home to the husband; awarded the wife her preexisting 50% share of J & S Investments, LLC; ordered the husband to pay the debts associated with the businesses owned by the parties; ordered the husband to pay 80% of the parties' joint debts; awarded the wife 20% of "KRIP, LLC, including its intellectual property, proprietary information, patents, patent applications, processes, licenses, and other property rights"; awarded the wife 20% of B & W Holdings, LLC; and awarded the wife 40% of the following businesses: "K2 Enterprises, LLC, including its intellectual property, proprietary information, patents, patent applications, processes, licenses, and other property rights," Dixieland Metals of Alabama, LLC, Whaley Holdings, LLC, Southeastern Stud, LLC, Southeastern Stud and Components, Inc., K4 Assets, LLC, Dixieland Metals of Mississippi, LLC, and Mid–South Steel, LLC. The trial court further ordered:

"Until such time as [the] Husband's ... stock or membership interests are more formally transferred to [the] Wife as set out above, [the] Wife shall receive an amount of money equal to 67% of all direct or indirect distributions, payments, or other income, from such companies to [the husband]. Such payments to the Wife shall be made within 24 hours of such payments being made to [the husband]."

Finally, the trial court ordered:

"From almost the beginning of this case, the Husband has been ordered to provide the Wife as much for legal expenses as he spent on himself. Thus far he has managed not to pay his attorneys since that time, but acknowledges owing them at least $150,000 for their extensive services in this case. Therefore the Court awards the same amount to [the] Wife. The HUSBAND shall pay to the WIFE, as an allotment for attorney fees and legal expenses, the sum of $150,000 ..., for which amount judgment is entered in favor of [the] WIFE against the HUSBAND, for which execution may issue as allowed by law."

(Capitalization in original.) On December 29, 2015, the husband filed a postjudgment

218 So.3d 363

motion. On January 8, 2016, the husband filed his notice of appeal. The notice of appeal was held in abeyance until February 9, 2016, when the postjudgment motion was denied. See Rule 4(a)(5), Ala. R.App. P.

Discussion

I. Child Support

On appeal, the husband first argues that the trial court erred in not deviating from the Rule 32, Ala. R. Jud. Admin., child-support guidelines because, he says, the trial court awarded the parties joint physical custody of the children and because, he says, he "was awarded periods of custodial time substantially in excess of those anticipated by the Child Support Guidelines."

Rule 32(A)(1), Ala. R. Jud. Admin., provides, in pertinent part:

"Reasons for deviating from the guidelines may include, but are not limited to, the following:

"(a) Shared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court...."

In Boatfield v. Clough, 895 So.2d 354, 356 (Ala.Civ.App.2004), the father in that case appealed, arguing that, because he and the mother had been awarded joint physical custody of their children and because he had been awarded "two nights per week and alternate weekends with the children, i.e., a total of six days out of every two weeks," the trial court had erred in not deviating from the child-support guidelines. This court explained:

"[The father's] principal contention is that where parents are awarded joint custody and exercise roughly equal custodial periods, the application of the Child Support Guidelines is manifestly unjust and inequitable and, therefore, a deviation from the Child Support Guidelines is required. However, the father's contention is refuted by the text of Rule 32 itself. Although Rule 32 acknowledges that, among other reasons, ‘[s]hared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court’ may constitute a ‘[r]eason[ ] for deviating from the guidelines,’ the rule further notes that ‘[t]he existence of one or more of the reasons enumerated in this section does not require the court to deviate from the guidelines. ’ Rule 32(A)(1), Ala. R. Jud. Admin. (emphasis added). ‘An award of child support resulting from the application of the guidelines is presumed correct,’ Rogers v. Rogers, 598 So.2d 998, 1000 (Ala.Civ.App.1992), and the judgment under review in this case fully comports with the text of Rule 32 and the Child Support Guidelines."

Boatfield, 895 So.2d at 356.

Similarly, in the present case, the trial court awarded the parties joint physical custody of the children and awarded the husband custody beginning every other Friday night through the following Wednesday morning (less than five days out of every two weeks), on holidays in alternating years, and on certain other special occasions. In accordance with Boatfield, we cannot conclude that the trial court exceeded its discretion in declining to deviate from the child-support guidelines.

Also with regard to child support, the husband argues that the trial court did not follow the assumption "that the custodial parent will take the federal and state income tax exemptions for the children in his or her custody" because, he says, the

218 So.3d 364

trial court required that the wife earn $20,000 per year in order to claim the exemption; he also argues that the trial court used a higher amount for health-insurance costs than was warranted. We note, however, that any errors on those points enured to the husband's favor. "[A] party cannot complain of...

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8 cases
  • Whaley v. Whaley, 2160267
    • United States
    • Alabama Court of Civil Appeals
    • November 17, 2017
    ...the trial court's judgment.Procedural History This is the second time these parties have been before the court. See Whaley v. Whaley, 218 So.3d 360 (Ala. Civ. App. 2016). This court set forth the pertinent procedural history in Whaley as follows:"On April 3, 2013, [the wife] filed a complai......
  • Rohling v. Rohling, 2160859
    • United States
    • Alabama Court of Civil Appeals
    • June 1, 2018
    ...under review in this case fully comports with the text of Rule 32 and the Child Support Guidelines." Id.; see also Whaley v. Whaley, 218 So.3d 360, 363 (Ala. Civ. App. 2016) (following Boatfield ). Accordingly, in the present case, the trial court was not required to deviate from the Rule 3......
  • Cottom v. Cottom, 2170042
    • United States
    • Alabama Court of Civil Appeals
    • November 30, 2018
    ..." ‘[t]he financial circumstances of the parties as well as the results of the litigation are undetermined.’ " Whaley v. Whaley, 218 So.3d 360, 367 (Ala. Civ. App. 2016) (quoting Frazier v. Curry, 104 So.3d 220, 228 (Ala. Civ. App. 2012) (plurality opinion) ). Accordingly, we pretermit discu......
  • Dasinger v. Hecker
    • United States
    • Alabama Court of Civil Appeals
    • August 7, 2020
    ...971 So. 2d 23, 31 (Ala. 2007); University of S. Alabama v. Progressive Ins. Co., 904 So. 2d 1242, 1247-48 (Ala. 1992); Whaley v. Whaley, 218 So. 3d 360, 363 (Ala. Civ. App. 2016); Johnson v. Johnson, 215 So. 3d 1123, 1134 (Ala. Civ. App. 2016); Morgan v. Morgan, 183 So. 3d 945, 966 (Ala. Ci......
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