Beverly Renee Shewbart v. John Michael Shewbart

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REL: 12/10/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2090702 B e v e r l y Renee Shewbart v. John M i c h a e l Shewbart Appeal from F r a n k l i n C i r c u i t Court (DR-07-03) MOORE, Judge. This Shewbart i s t h e second time ("the w i f e " ) and these John parties, Michael Beverly Renee Shewbart ("the 2090702 husband"), have Shewbart, 19 the appealed wife judgment So. been of divided 3d before 223 the p a r t i e s ' court. ( A l a . C i v . App. from divorce. this the In trial that In 1 2009) court's judgment, marital property, Shewbart v. ("Shewbart"), July 2008, trial the 10, court assigning a value of $14,000 t o t h e p a r t i e s ' b u s i n e s s , known as John S h e w b a r t d/b/a Swamp J o h n ' s R e s t a u r a n t & C a t e r i n g , a n d a w a r d e d t h e w i f e one- half of trial that value. The wife appealed, asserting that c o u r t had e r r e d i n i t s v a l u a t i o n of t h e b u s i n e s s and failing t o award her This court reversed the t r i a l i n v a l u i n g the business, consider the business. "for consistent c o u r t ' s judgment sole income stream and equitable We as t o t h e concluding c o u r t had failed to then division of into consider that from remanded the cause consideration value to derived court to determine the fair-market value proprietorship, taking assets, the t r i a l S h e w b a r t , 19 S o . 3 d a t 2 3 2 . the t r i a l by alimony. p r o p e r t y d i v i s i o n and t h e f a i l u r e t o award a l i m o n y , that, the in the m a r i t a l property." of the a l l of i t s fashioning 19 the So. 3d an at The f a c t u a l b a c k g r o u n d o f t h i s c a s e i s s e t f o r t h i n S h e w b a r t v . S h e w b a r t , 19 S o . 3 d 2 2 3 ( A l a . C i v . A p p . 2 0 0 9 ) . 1 2 2090702 233. We also i n s t r u c t e d the light of any new property w h e t h e r t h e w i f e was affirmed On evidentiary further court had the to value value using for two husband's (generally to the trial the of and the 2007 earnings referred at under to two an of on and the another taking the a trial certified valuations that, the most t h a t he in who his appropriate had calculated income-approach information taxes, obtained income-tax of the business years, wife, stated We method information. federal as Id. judgment. Norvell, Norvell in remand, conducted i n business business relied for interest, arrive on i n a d d i t i o n to Carter wife. sources and f o r those reconsider, court's court husband expertise business first 2006 were t a k e n trial that hearing, the p a r t i e s ' the to i t entered i n c o m e - a p p r o a c h m e t h o d was c a l c u l a t e d the four by different Norvell obtained At with the the testimony hired opinion, a the division of 2010, from accountant been way 25, hearing. heard public aspects testimony court e n t i t l e d t o an a w a r d o f a l i m o n y . a l l other February trial before returns. any d e p r e c i a t i o n , or "EBITDA"), and estimated 3 from averaged He deductions amortization the EBITDA then a p p l i e d a m u l t i p l e value of the the business as of an 2090702 ongoing Norvell enterprise. valued Norvell considering husband the business then the Using 2 50 that weeks which provided annual net arrive at he $191,376. the income, the business by testimony, i n which the $1,500 p e r weeks annual net Norvell estimated value Norvell explained his in his valuation of week from the N o r v e l l m u l t i p l i e d t h a t $1,500 w e e k l y ( a l l o w i n g two a total method, 3 value withdrew an four income-approach husband's d e p o s i t i o n testified by at calculated b u s i n e s s as h i s s a l a r y . salary that as year income of applied of a the decision a vacation), $75,000; to multiple business to as apply of a of that four to $300,000. multiple of follows: "I used a m u l t i p l e of f o u r , which I f e e l ... is conservative. Businesses, t r a d i t i o n a l l y , are valued a n y w h e r e f r o m ... m a y b e a l o w o f t h r e e up t o ... a number q u i t e a b i t h i g h e r . We h a v e h a d b u s i n e s s e s s e l l f o r m u l t i p l e s o f 10 o r 12 b e f o r e b u t t h o s e a r e a l i t t l e b i t unusual." N o r v e l l t e s t i f i e d t h a t " [ o ] n e of t h e most commonly u s e d m e t h o d s t h a t we w o r k w i t h i s a t e r m we c a l l E B I T D A , w h i c h i s E-B-I-T-D-A, and t h a t ' s t h e e a r n i n g s o f a b u s i n e s s b e f o r e any d e d u c t i o n f o r i n t e r e s t , taxes, d e p r e c i a t i o n or a m o r t i z a t i o n . " It appears N o r v e l l added the depreciation claimed by the husband d u r i n g each r e s p e c t i v e t a x year to the net income f o r that tax year. 2 Norvell testified i n f o r m a t i o n had not been 3 that the husband's 2008 included in his calculation. 4 income 2090702 Responding to information regarding valuation, the Norvell trial court's the request multiple to be for further applied in the stated: " I t i s ... a j u d g m e n t c a l l , b a s i c a l l y ... o n t h e side of the v a l u a t i o n analyst. And you j u s t , you take everything into consideration as f a r as a business, how i t ' s r u n , y o u k n o w , t h i n g s o f t h a t n a t u r e and a p p l y a m u l t i p l e t o t h e n e t e a r n i n g s of t h a t b u s i n e s s t o t r y t o come u p w i t h a f a i r estimate of the what t h e v a l u e o f t h a t b u s i n e s s i s . " Norvell could admitted be that considered Norvell his decision of a l s o acknowledged that United years States and that a admitted suffered downturn the indication husband's Norvell that a four income t h e 2 0 0 8 d a t a was that downturn i n the impact the husband's income. h e h a d no 2008 a n d 2007 d a t a i n d e t e r m i n i n g Norvell had the husband's t o him and t h a t t h a n t h e 2006 the business. of arbitrary. had not been p r o v i d e d relevant t o use a m u l t i p l e the t h e economy i n the economy last could i n fact, value i n the several negatively N o r v e l l , however, t e s t i f i e d t h e economy had, more that impacted income. also acknowledged that, h i s v a l u a t i o n , he h a d b e e n u n a w a r e that t o 80 h o u r s p e r w e e k i n t h e b u s i n e s s . 5 a t t h e t i m e he p e r f o r m e d the husband worked 70 Norvell agreed that, i f 2090702 the husband's net income for 2008 had been $14, 352, as represented, a n d t h e h u s b a n d h a d w o r k e d 70 t o 80 h o u r s a w e e k to amount, earn that presumably testified lower, that he N o r v e l l would have value had on been the placed business. unaware that a different, Norvell the business l o c a t e d i n a f a c i l i t y owned b y t h e h u s b a n d ' s s i s t e r a n d by the husband; business On divorce was March Norvell testified that the also location was rented of the relevant to i t s value. 23, judgment, 2010, the trial court entered an amended stating: " 1 . The C o u r t h e a r d evidence concerning the v a l u e o f t h e s o l e p r o p r i e t o r s h i p . I t i s n o t an e a s y p r o p o s i t i o n t o p u t a v a l u e on a b u s i n e s s s u c h a s Swamp J o h n ' s . I t i s l a r g e l y a one-man o r g a n i z a t i o n t h a t ' s v a l u e i s g r e a t l y d e t e r m i n e d b y how many h o u r s a r e p u t i n by t h e owner. The s o l e p r o p r i e t o r s h i p d o e s n o t own t h e p r o p e r t y w h e r e i t i s l o c a t e d . The Court had a l r e a d y d i v i d e d the value of the equipment o f t h e b u s i n e s s b e t w e e n t h e two p a r t i e s . " 2 . The C o u r t i s l e f t t o d e t e r m i n e the future earning c a p a c i t y of the business. The C o u r t i s p e r s u a d e d t o use t h e income a p p r o a c h as t h e model t o determine the value of the business. The C o u r t h a s a v e r a g e d t h e l a s t t h r e e y e a r s i n c o m e as r e p o r t e d on the t a x forms. The i n c o m e f i g u r e i s t h e n u m b e r before depreciation. These were $47,726.00 f o r 2006, $42,901.00 f o r 2007, and $14,352.00 f o r 2008. The t h r e e y e a r a v e r a g e i s $ 3 4 , 9 9 3 . 0 0 . "3. The C o u r t w i l l t h e n t a k e t h e a v e r a g e o f $ 3 4 , 9 9 3 . 0 0 a n d m u l t i p l y b y t w o . The C o u r t f i n d s t h e 6 2090702 multiple of two is appropriate based on the testimony of Carter Norvell, who described the income approach. The C o u r t u s e s t h e m u l t i p l e o f t w o i n s t e a d o f a number s u c h as f o u r b e c a u s e o f t h e l o n g h o u r s o f t h e b u s i n e s s and what t h e C o u r t f e e l s i s a r e a l i s t i c v a l u e i n t h e l o c a l economy. T h i s p r o d u c e s a v a l u e of $69,986.00. O n e - h a l f o f t h i s number i s $34,993.00. The C o u r t s u b t r a c t s $ 7 , 0 0 0 . 0 0 f o r w h a t i t a l r e a d y a l l o c a t e d to the [wife] f o r her i n t e r e s t i n t h e equipment and v e h i c l e s o f t h e b u s i n e s s . This p r o d u c e s the v a l u e of $27,993.00, which i s still owed t o t h e [wife]. The Court w i l l round this f i g u r e t o $28,000.00. "4. The C o u r t ORDERS t h e [ h u s b a n d ] t o p a y the amount o f $28,000.00 t o t h e [ w i f e ] f o r h e r o n e - h a l f i n t e r e s t i n the business. The [husband] s h a l l pay the amount o f $400.00 a month f o r s e v e n t y (70) months t o e q u a l the t o t a l of $28,000.00. are "5. A l l o t h e r p r o v i s i o n s o f a d o p t e d as f u l l y s e t o u t . " The wife again appeals. the Divorce Decree 4 Analysis On to appeal, follow this entered weight by of the the discretion; 4 into the wife court's a s s e r t s t h a t the mandate trial court evidence and, t h a t the trial on on remand; remand thus, court's that v a l u a t i o n of has court the against exceeded the The r e c o r d from Shewbart, supra, the r e c o r d i n t h i s appeal. 7 was trial been failed judgment the great trial court's the business incorporated 2090702 was the r e s u l t committed of a m i s c a l c u l a t i o n ; and t h a t reversible error in failing Business We first failed court's Alabama Power Co., 431 supreme court, quoting (1962), So. t o award her court alimony. Valuation address the wife's to follow this the t r i a l argument t h a t t h e t r i a l mandate 151, 155 I n Ex parte stated: 5 Am. 2d on remand. court ( A l a . 1983), the and E r r o r 991 J u r . 2d A p p e a l § " ' I t i s the duty of the t r i a l court, on remand, t o c o m p l y s t r i c t l y w i t h the mandate o f t h e a p p e l l a t e c o u r t a c c o r d i n g t o i t s t r u e i n t e n t and meaning, as d e t e r m i n e d by t h e d i r e c t i o n s g i v e n by t h e r e v i e w i n g c o u r t . No j u d g m e n t o t h e r t h a n t h a t d i r e c t e d o r p e r m i t t e d b y t h e r e v i e w i n g c o u r t may b e entered The a p p e l l a t e c o u r t ' s d e c i s i o n is final as t o a l l m a t t e r s b e f o r e i t , becomes t h e l a w o f t h e c a s e , a n d must be e x e c u t e d a c c o r d i n g t o t h e mandate, w i t h o u t g r a n t i n g a new t r i a l o r t a k i n g a d d i t i o n a l evidence '" As stated "for sole the t r i a l i n Shewbart, supra, court equitable We and to then division also we remanded to determine the fair-market proprietorship, assets, 233. above, taking into consider that of the m a r i t a l i n s t r u c t e d the t r i a l 8 value consideration value in property." court the cause of the a l l of i t s fashioning 19 So. 3d to reconsider, an at in 2090702 light any new entitled was of to On property an remand, the award of the received evidence business. presented at remaining marital alimony. considered that of that complied The valuing court hearing, this asserts by court's The Norvell's be hearing a that trial held the on opinion used to assess Norvell, under divided not remand, claim the of the trial remand, the trial trial method, court the factors to the operation of into the account business. 9 various The the evaluator a takes erred of the b u s i n e s s . and that supra. in trial "income-approach" d e t e r m i n e s the EBITDA average of the b u s i n e s s multiple for issues i n Shewbart, the the expressly wife's language the value that evidence indicates that that of judgment court the mandate the the value a i t did denied judgment and of the in light m u s t c o n c l u d e t h a t , on business. method s h o u l d and wife entered although hearing with accepted explained the next wife the and, i t implicitly of then The the Id. the b u s i n e s s asset c o u r t ' s j u d g m e n t , we court whether conducted court hearing. light at court trial value issue, In alimony. trial The the the entered, f o r the purpose of d e t e r m i n i n g addressing address division trial then court As first applies relating followed 2090702 that methodology by husband's and income-tax the which trial The from erred the that husband wife and 2007. of two The is and he Bank-account records trial a multiple court earning returns returns also the should are f o r the the 2007, evidence, use have $1,500 the reliable, tax years in even the 2006 a multiple per from the parties' income-tax for 2 0 0 6 was approximately the week husband shows $42,905, 10 the pure in or was depositing that period. that the wife and However, EBITDA $825.10 p e r his business. 2007 i n t r o d u c e d by t h e week d u r i n g return on testified f r o m 2006 and s p e n d i n g a r o u n d $1,500 p e r rests husband made $ 1 , 5 0 0 indicated that but per reflected of of conjecture. that on i n using argues that based September deposition finally not speculation In wife those f i g u r e s upon f u r t h e r contends t h a t , income-tax court misconstrued contends l e s s e r numbers The the wife actually income-tax returns. the average The trial of EBITDA was the f i g u r e s from two. and the not the the years i n s e l e c t i n g both the i t s EBITDA a v e r a g e that three determine business, trial at to recent average by maintains the most returns wife determined week court i t based two. if the then m u l t i p l y i n g that that his using figure week. In 2090702 2007, tax t h e EBITDA f i g u r e as r e p o r t e d return June amounted 2008, at reiterated $52,782, time of the business or the $1,015.04 first earned per trial, roughly income- week. the husband $1,500 p e r week. calculate the 2008 EBITDA f i g u r e f o r t h e b u s i n e s s t o be $ 1 4 , 3 5 2 , o r per week. that B a s e d on t h e f o r e g o i n g the income income-tax returns establishes testified "[he] i t sactual evidence maintains. In $76,000 earnings h i s September that's accurately the testimony o f $1,500 i s n o t , however, as 2007 right" that a l t h o u g h he b e l i e v e d actual earnings The recorded a l l income husband husband took were maintains the of the husband p e r week. deposition, $1,500 he $276 reflect one-sided A t t h e J u n e 2008 t r i a l , show." the not as the the wife husband p e r week a n d received p e r year i n income from t h e b u s i n e s s , proprietorship. its evidence, the wife t h a t he " u s u a l l y a v e r a g e d " guess[ed] that, do of the business but that The In t o h i s 2 0 0 8 i n c o m e - t a x r e t u r n , h o w e v e r , we According that the to on t h e h u s b a n d ' s that $75,000 w h i c h was a to sole the husband testified t h e b u s i n e s s made $ 1 , 5 0 0 p e r week, "whatever testified received by that tax returns h i s income-tax the business, out of the business 11 the even f o r personal would returns the cash use. The 2090702 husband also deposits not only dividends testified the from another business, trial court income-tax business bank despite loans a home-equity reasonably returns could accurately the have state existence of to conflicting been 33 ( A l a . C i v . App. persuaded that appellate court the court; trial may not C i v . App. We do, committed average See does P a t e v. a mathematical the t o use through 2008 stated above, earnings of the to the court, not t h i s Young, not court higher 942 So. may "an for that this So. 2d have earnings, allow Guy, 515 court, court 2d 380, of to 387 2005). however, agree w i t h from purported law Thus, evidence the had and the s u b s t i t u t e i t s judgment Alabama also that Although this business but credit. concluded Young v. 1987). the reweigh the evidence." (Ala. evidence. of the I t i s the duty of the t r i a l 32, included from h i s parents, line contrary. resolve accounts f r o m money e a r n e d b y t h e b u s i n e s s , money t r a n s f e r r e d f r o m the that to error income-tax the husband's establish those the wife a in calculating returns. 12 The income-tax three-year income-tax that the t r i a l returns the EBITDA trial court returns EBITDA court from average. show t h a t the 2006 As EBITDA 2090702 f i g u r e s were $42,905 i n 2006; $52,782 i n 2007; and $14,352 i n 2008. for The t r i a l 2006 as court erroneously $ 4 7 , 726 and f o r 2007 determined Using three-year a v e r a g e t o be $34,993 i n s t e a d o f t h e c o r r e c t the the EBITDA amount $36,679.67. H o w e v e r , we conclude that the t r i a l any error i n using The trial court account f o r the economic Norvell which week had explained long would a f f e c t into by the the business. the multiple husband and i n F r a n k l i n County, the value account. The to the factors of the business evidence of the high A d d i t i o n a l l y , the t r i a l unemployment r a t e judicial C l a r k e v. C l a r k e , (1972) 71 i t reduced worked prevailing not taken could a l s o take First d i d n o t commit but i n the s h o w s t h a t t h e h u s b a n d o f t e n w o r k e d 70 t o 80 h o u r s p e r evidence 907 that hours i n the business. e.g., court a m u l t i p l e o f two t o v a l u e conditions testified he record 68, court $42, 901. figures, it trial as amounts incorrect of the d e r i v e d t h e EBITDA (1941) heard i n t h e community, and notice of the local economy. See, 47 A l a . A p p . 5 5 8 , 5 6 4 , 258 S o . 2 d 9 0 2 , (taking j u d i c i a l N a t ' l B a n k o f Opp court notice of i n f l a t e d economy); and v . W i s e , 241 A l a . 4 8 1 , 484, 3 So. (taking j u d i c i a l 13 notice of nationwide 2d economic 2090702 depression). Although Norvell testified that he had p e r s o n a l l y never used a m u l t i p l e lower than three, N o r v e l l d i d not testify light of Norvell would be o u t s i d e t h e norms o f v a l i d v a l u a t i o n p r a c t i c e s . completely that In those engaged t h a t the arbitrary, in multiple, speculation as the wife in 697 on the uncontroverted, evidence trier its own considering say that We not further 1993) See ("An fact, in also trial Bunn v. in the 62 8 So. is not opinion i f the testimony to the deciding the of Bunn, c o u r t must l o o k observations lower place either be court a cannot that could using expert's even four the adopting Norvell. because a t r i a l and multiple conjecture for of a of a m u l t i p l e of contends. ( A l a . C i v . App. conclusive and and error 695, such cannot c o m p u t a t i o n s a d v o c a t e d by 2d of use we court trial use circumstances, testified considered the was entire factual issues."). Putting trial the court, the c o r r e c t f i g u r e s i n t o the value of c o m p u t e d t o be $73,359.34. its award intent to $7,000 f o r t h e value the the the business Because the wife wife 14 already u s e d by should trial one-half had formula of have court that been indicated value, received, the the less trial 2090702 court should $28,000 stated judgment that have awarded the and error. in wife i t s judgment. remand the case for its wife finally discretion Under We the Alabama in law, asserts failing that to periodic r e c i p i e n t spouse, to the or her i.e., standard the trial reverse court to the correct Alimony of living as the award trial her alimony i n s t a l l m e n t p a y m e n t s made f r o m one the therefore the 5 Periodic The $29,679.67 r a t h e r t h a n court exceeded periodic alimony. consists regular spouse to another to extent enable possible, to maintain i t existed during " e c o n o m i c s t a t u s quo." of Orr v. Orr, the 374 his marriage, So. 2d 895, We n o t e t h a t t h e t r i a l c o u r t a c t u a l l y r o u n d e d up from $27,993 t o d e r i v e i t s $28,000 award. N o t h i n g i n our o p i n i o n s h o u l d be r e a d as p r e v e n t i n g t h e t r i a l c o u r t f r o m s i m i l a r l y r o u n d i n g up t o $ 3 0 , 0 0 0 on r e m a n d , i f i t deems i t e q u i t a b l e t o do s o . The t r i a l c o u r t a l s o may use i t s d i s c r e t i o n as to whether i t w i l l i n c r e a s e the m o n t h l y i n s t a l l m e n t amounts or extend the i n s t a l l m e n t p e r i o d i n order to account f o r the increase. We do n o t a d d r e s s t h e w i f e ' s a r g u m e n t t h a t the t r i a l c o u r t e r r e d i n a l l o w i n g the husband t o pay her share of the value of the business i n equal i n s t a l l m e n t s over a p e r i o d o f 70 m o n t h s , w h i c h i s r a i s e d f o r t h e f i r s t t i m e i n h e r r e p l y brief. See L l o y d N o l a n d H o s p . v . D u r h a m , 906 So. 2 d 1 5 7 , 173 (Ala. 2005) ( " I t i s a w e l l - e s t a b l i s h e d p r i n c i p l e o f a p p e l l a t e r e v i e w t h a t we w i l l n o t c o n s i d e r a n i s s u e n o t r a i s e d i n an appellant's initial brief, but raised only i n the reply brief."). 5 15 2090702 897 (Ala. Civ. Beckwith, that 475 to periodic 2d by court Beckwith v. decision judicial i s not mandatory), court. but Bush v. Bush, 784 So. 2d 299, 2000). i t s d i s c r e t i o n , the t r i a l considerations. 925 and factors t r i a l ( A l a . C i v . App. not p e r i o d i c alimony r e s t s i n the sound equitable This alimony, is the exercising Killingsworth, spouse (holding of the t r i a l 577 divorcing 1985) ( A l a . C i v . App. In 575, alimony t o award discretion 300 A So. periodic whether 1979). entitled automatically App. So. our 2d 977, supreme See 983 court c o u r t s must c o n s i d e r court i s guided Killingsworth ( A l a . C i v . App. have enumerated v. 2005). the many when w e i g h i n g t h e p r o p r i e t y o f an a w a r d o f p e r i o d i c a l i m o n y , E d w a r d s v . E d w a r d s , 26 S o . 3d 1254, ( A l a . C i v . App. of the 1259 m a r r i a g e , Stone v. App. of Stone, 26 2009); the s t a n d a r d of l i v i n g accustomed So. 2009), which i n c l u d e : the l e n g t h during 3d 1126, Lackey, health 18 So. 2d 1232, ( A l a . C i v . App. f o r the breakdown 3d 393, 401 o f t h e p a r t i e s , Ex 16 (Ala. Civ. of v. W a s h i n g t o n , 2009); the r e l a t i v e Elliot, 2009); 782 So. 24 fault the marriage, Lackey ( A l a . C i v . App. parte 1236 t o w h i c h t h e p a r t i e s became the marriage, Washington 1135-36 the p a r t i e s So. v. t h e age and 2d 311 308, 2090702 (Ala. 2000); parties, App. and Baggett 2003). the v. future Baggett, In weighing employment 855 So. those 446, factors, a of trial demonstrated the marital spouse Gates can and, v. G a t e s , under 830 So. H e w i t t v . H e w i t t , 637 ("The failure arbitrary to and m e r i t an A showing be unable during the responding s h o u l d meet. See 2002); ( A l a . C i v . App. although t h e husband has spouse proves a need financial to maintain the p a r t i e s ' v. Pickett, 723 i n the the result). alimony, standard the marriage and and So. 1994) discretionary, 2d a for periodic alimony s u p p o r t he 71, the nature 17 o r she marital 74 necessary (Ala. Civ. of the two of to should the financial App. judges condition spouse living will lifestyle. c o n c u r r i n g and of shown pay."). a petitioning mode ability is to former judge As the has sustain ( A l a . C i v . App. 1384 alimony, t h a t without such award of p e r i o d i c establish 749-50 2d 1382, ( T h o m p s o n , J . , w i t h one concurring that spouse c a p r i c i o u s when t h e n e e d s o f t h e w i f e a r e award and Pickett 1998) So. living circumstances, 2d 746, award petitioning by See to the petitioning court a need f o r c o n t i n u i n g monetary support t o of the (Ala. Civ. determines standard the 559 essentially former, whether 2d prospects an first parties costs to 2090702 the p a r t i e s of maintaining M i l l e r v. M i l l e r , and Austin 1996). v. The 695 So. Austin, that 2d 678 station in life. 1192, So. 1194 2d p e t i t i o n i n g spouse ( A l a . C i v . App. 1129, 1131 should inability the use of h i s or her her own of any settlement wage-earning and factor work 2d spouse taking economic 564, alimony capacity, 565 or other v. the use capacity allows the parties' spouse the has and his Miller, that will 671 So. 2d or her or supra, health, DeShazo 1 9 9 1 ) , and his v. any with the education, as well assets costs a associated standard need for 18 of with living, as 582 rehabilitative petitioning g a i n f u l employment. 704 part own DeShazo, a s s i s t the 699, or her (Ala. Civ. and maintaining the additional See App. wage-earning p e t i t i o n i n g s p o u s e t o r o u t i n e l y meet marital proven see or through r e c e i v e d as and age, App. including his p e t i t i o n i n g spouse maintaining of financial former the v. the conditions, Treusdell, If of Miller account benefits 1995). part of division, ( A l a . C i v . App. in obtaining Treusdell see into of l i v i n g i n d i v i d u a l assets, property experience prevailing So. or 1997); establish his separate e s t a t e , the m a r i t a l p r o p e r t y own same s t a n d a r d e.g., (Ala. Civ. then her last to achieve that See, only the petitioning support and 2090702 maintenance Scott, 460 that So. Once the 2d 1331, the established, i s measured 1332 financial the to 881 ability t o pay may spouse has 1975, provide enable proven by the petitioning him standard sufficient or of her to showing Herboso, responding spouse's ability take account a l l the into See that (Ala. the judgment. C i v . App. impact financial ability an See estate, capacity with the the award condition of The t o pay, The the court consistently former trial court obligations 678 should alimony of 2d 161, also will have the the 164 consider on the h i s or her lifestyle for and former m a r i t a l the should c r e a t e d by So. to marital considering r e s p o n d i n g spouse 19 v. necessary funds the O'Neal, trial to maintain the p a r t i e s ' of 2003). to In financial periodic of the ability following parties' supra. O'Neal v. 1996). is the responding responding spouse, i n c l u d i n g those o b l i g a t i o n s divorce spouse see § 3 0 - 2 - 5 1 ( a ) , A l a . Code earning spouse v. Herboso the need. separate maintain living. consider ( A l a . C i v . App. of the m a r i t a l property, and/or petitioning that sufficient division should Scott 1984). meet 454, be the See 458 Herboso, a 2d of court r e s p o n d i n g spouse shortfall. ( A l a . C i v . App. need trial So. by t h a t 2090702 himself the or herself. ability entirety Id. t o pay i f the 1292 See, responding responding of the p e t i t i o n i n g economic h a r d s h i p . 2d 1289, A ( A l a . C i v . App. after rarely can live as well as Gates, 830 So. 2d at 750, Civ. App. endeavor to determine fairly pay So. 1283, 2d After need on 1285 being ability a c h e a p l y as trial to not So. however, spouses that the the those the cases, amount satisfied alimony meet So. the the find 2d 352, trial Rubert that the alimony. H a t l e y v. Hatley, need, So. , ( A l a . C i v . App. 20 spouse can 709 or trial spouse court amount June of, 11, However, a has should l e n g t h of the 2080745 2010) . spouse has responding the The to, [Ms. should 1998). t h a t the right (Ala. Rubert, v. that the p e t i t i o n i n g and 358 court responding See ( A l a . C i v . App. determine 3d undue they d i d together, court w i l l consider the e q u i t i e s of the case. does the 486 s e p a r a t i o n , former a consistent basis. for periodic some In any In most c a s e s , W a l l s v . W a l l s , 860 2003). satisfy has f u l l y meet t h e f i n a n c i a l needs o f responding spouse cannot spouse. can needs w i t h o u t 1986). to the f a c t that, and obviously M a c K e n z i e v. M a c K e n z i e , s i m p l y due petitioning spouse spouse's e.g., spouse marriage periodic 2010] the longer 2090702 the parties have maintained arrangements, the arrangements should extent (Ala. possible. C i v . App. more be See certain fair i t maintained Edwards 1982). The v. living will noneconomic parties during 887, 891 the trial in an Jones, the court court 596 So. App. should 2d court See endeavor 949, 952 of the p a r t i e s , and, (Ala. Civ. consider any fairness of App. 1312, and 2004). 1313-14 the ( A l a . C i v . App. trial A s h b e e v. 1983). 21 the So. 2d parties Jones v. However, and its fault can adjust 160, 164-65 court should 2d trial due the So. greater court 93 factors, marriage, circumstances See those 1992). to the 688 position. the 91, by l e a v i n g the Y o h e y , 890 Lastly, a l l other i t s decision. of App. the economic made Hanna, e n d e d due i f so, 2d the v a r i o u s avoid to also give Hanna v. whether a w a r d a c c o r d i n g l y . Y o h e y v. So. sacrifices (Ala. Civ. living, 410 light those divorce should financial consider of to financial that In 1997). disparate can standard and marriage. unconscionably attendant the the (Ala. Civ. trial o f one contributions the Edwards, r e g a r d t o t h e h i s t o r y o f t h e m a r r i a g e and and seem beyond trial and bearing Ashbee, 431 on So. the 2d 2090702 The a need has d e t e r m i n a t i o n of whether for periodic the ability equitable are alimony, of whether to pay principles last trial Civ. 455 issue So. lying court. App. 2d periodic require a l l questions of Lawrence, the p e t i t i o n i n g fact 45, 46 trial S e e N o l e n v . N o l e n , 398 On c o u r t presumes t h a t whether alimony court, the So. spouse of ( A l a . C i v . App. within and has to periodic adjustments particularly 1981). the responding alimony, f o r the spouse Lawrence 1984), with discretion 2d 712, the of the 713-14 ( A l a . appeal from ore tenus proceedings, the t r i a l court properly v. found the this facts n e c e s s a r y t o s u p p o r t i t s judgment and p r u d e n t l y e x e r c i s e d i t s discretion. App. G.G. That R.S.G., 668 830 in The Dees v. Dees, 390 We unjustly, So. 2d or or 1060, 1980). w i f e a r g u e s t h a t she e s t a b l i s h e d a need assistance. trial of the law. ( A l a . C i v . App. by see § 1 2 - 2 1 - 1 2 ( a ) , A l a . Code 1975, court otherwise acted a r b i t r a r i l y , contravention 1064 overcome (Ala. Civ. support that the t r i a l be 828, from the a p p e l l a n t t h a t s u b s t a n t i a l e v i d e n c e does not of f a c t , may 2d showing findings presumption So. a those 1995). v. agree. The for financial w i f e p r e s e n t e d an e x h i b i t on r e m a n d i t e m i z i n g h e r m o n t h l y e x p e n s e s , w h i c h 22 at the amounted 2090702 to $2,814.80. living, Those expenses such as transportation expenses of housing, c o s t s , but $819.80 prescription-drug trial that she condition, blood disorder, husband doubted any treatments month, The bipolar as of the bulk wife of which testified at back problems, the and but the and relate a health he cardiac attention The problems, d i d not wife's to first depression. wife's of medical the a thyroid illness, disputing need present for the husband a l s o d i d not dispute any o f t h e f o r e g o i n g e x p e n s e s as b e i n g u n r e a s o n a b l e o r outside the parties' The former m a r i t a l standard r e c o r d does not separate estate from $250 p e r 2010. On the additional $400 p e r w e e k f o r 114 remand, as The husband. living. wife In weeks, w h i c h terminated above, the $30,000, p a y a b l e also 23 any the p r o p e r t y - d i v i s i o n r e c e i v e d $28,500 p a y a b l e corrected approximately month. of i n d i c a t e t h a t the wife maintained award, the w i f e o r i g i n a l l y of The clothing, a l s o i n c l u d e d her a hypochondriac, medications. ordinary costs food, disorder, extent evidence and wife pressure, the her medical the s u f f e r s from p a i n f u l high to utility, costs. deficit referring per i n c l u d e d the received wife at a rate i n November received an i n i n s t a l l m e n t s of i n the judgment the 2090702 right t o one-half marital home. of the net proceeds A t the time from of the t r i a l on remand, c o n t i n u e d t o l i v e i n t h e m a r i t a l home d e s p i t e judgment, which r e q u i r e d parties' 2010. child $80,000 approximately wife and $110,000 the marital and expect sale of the marital wife a l l rights, to obtain home. that title, which less The t r i a l the wife t h e terms o ft h e occurred on A p r i l 26, home was w o r t h the parties owed of credit. Thus, $75,000 on a h o m e - e q u i t y l i n e could Navigator, that of the home t o b e s o l d when t h e age 19, w h i c h The e v i d e n c e i n d i c a t e d between the reached the marital the sale than $10,000 court also from t h e awarded t h e a n d i n t e r e s t t o a 2000 o r 2001 L i n c o l n was i n o p e r a b l e a t the time of the t r i a l on remand. When factory. after wife the parties i n 1990, t h e w i f e She became p r e g n a n t w i t h testified working factory closed. much s h o r t e r wife, that, after she gave b i r t h i n the factory After to the child, f o r several the factory years closed, The she u n t i l the worked f o ra according to she worked s p o r a d i c a l l y f o r t h e husband's 24 i n a f o r a period. The h u s b a n d t e s t i f i e d t h e w i f e period. worked the p a r t i e s ' c h i l d not long t h e p a r t i e s married and q u i t working resumed the married business. 2090702 The husband t e s t i f i e d much a t a l l . site wife for at wife had least 32, Ala. R. w a g e , w h i c h now trial on other health part time. brother, for 24 an The the had has from The according her to her present the a CS-41 could that that she back could wife i n d i c a t e d was wife nets her At the pain and work from per the The fullest to her in capacity, 25 her hour limit from husband remand t o c o n t r a d i c t the capacity. e v i d e n c e e s t a b l i s h e s t h a t , even w i t h awarded only $769.16 p e r month exhibit. on $8 see minimum month. her and degree. form, earn home, e a r n i n g earning divorce. some c o l l e g e a clerical position her to of $1,257 p e r p e r s i s t e d so drive she testified obtained auction no p o s t s e c o n d a r y that roughly wife capacity. foregoing property working and Admin., to Internet time she business not been f o r m a l l y employed the no e v i d e n c e a t t h e t r i a l regarding an at week, w h i c h t h e employment, on t h e w i f e i n d i c a t e d on w i f e had hour's earning presented wife The hours per of her that problems work f o r h i s school but equates the years high Jud. remand, d i d not w i f e had 14 credits, At the o r i g i n a l t r i a l , Rule The graduated business-school she a l s o s o l d items f o r e x t r a money. elsewhere The The that the the divorce wife judgment c a n n o t be using and expected 2090702 to meet a l l o f h e r wife will be financial unable to meet monthly expenses without The wife resources asserts By our calculations, approximately any periodic further argues that $ 1 , 600 that, " i f [the husband] (Wife's [alimony brief, the husband above, the t r i a l 26.) i s making However, not only those conditions the and capable 26 So. to pay alimony earnings). paying The The the present 456 week f r o m t h e while her wife of e a r n i n g 3d 450, wife $1,500 a week, as we [a] excessive. have decided the also wife month wages. on the 2009) ability f u r t h e r does not a b i l i t y t o pay alimony 26 his f o r her argue See The t o pay sustaining a l s o does not ( A l a . C i v . App. i s based business. ability $400 p e r higher the Based c o u r t , i n 2008, the husband h u s b a n d has earnings business. is has $276 p e r argue t h a t the from ample court r e j e c t e d the w i f e ' s c o n t e n t i o n t h a t f i n d i n g s made b y t h e t r i a l earning her The h u s b a n d i s m a k i n g $1,500 p e r week f r o m t h e b u s i n e s s . the of has o b l i g a t i o n ] w o u l d n o t be p. the alimony. f r o m w h i c h t o meet t h e needs o f t h e w i f e . $1,000 p e r month ..." needs. wife does alimony own living interest t h a t the (holding that earn, was her H e n n i n g v. to on not in husband Henning, ability actual argue t h a t the husband to her from the m a r i t a l 2090702 assets he r e t a i n e d f o l l o w i n g the or from h i s separate P. Therefore, failing we erred in during agree to failing with future. which the Although wife her heard with to record court does not alimony. sustain The and past, the h u s b a n d may economic to emotional ground of evidence her from e v e n t u a l l y be able 27 court periodic f o r 16 years, and that he the left trial been a the court diagnosed illnesses and i t incompatibility. which the trial committed from r e c e i v i n g p e r i o d i c for financial conditions alimony. trial t h a t the wife establishes that earning in mother a had App. erred award abuse, wife concluded i s c u r r e n t l y not recessed court the testified the to forever bar a permanent need the business right the other contain evidence that verbal that c o u l d have r e a s o n a b l y s u c h m i s c o n d u c t as trial p r i m a r i l y as d i v o r c e d t h e p a r t i e s s o l e l y on The the wife the and marriage the w i f e p e r i o d i c husband indicating disorder the served the the p a r t i e s were m a r r i e d moodiness evidence bipolar The wife homemaker. due that reserve of R u l e 2 8 ( a ) ( 1 0 ) , A l a . R. the husband t o pay we alimony i n the See cannot agree to order However, estate. dissolution the wife assistance. a s much a s are will subject to earn Although i t has to likely in the change and sufficient income 2090702 to a f f o r d t o pay the wife p e r i o d i c alimony. should facts reserve jurisdiction indicate that future over "The t r i a l the issue of alimony circumstances may e n t i t l e court i f the either p a r t y t o a l a t e r award o f alimony." W i l l i a m s v . W i l l i a m s , 905 So. 2004). 2d 8 2 0 , 828 circumstances, reserve ( A l a . C i v . App. we r e v e r s e the right circumstances Considering t h e judgment f o r t h e t r i a l t o award p e r i o d i c alimony the court t o b a s e d on changed i n the future. Conclusion We and reverse remand the t r i a l t h e case with court's March 23, 2010, judgment directions f o r the t r i a l court to c o r r e c t i t s j u d g m e n t a s t o t h e amount owed t o t h e w i f e f o r h e r one-half to interest reserve i n the business and t o modify i t s judgment t h e r i g h t t o award t h e w i f e p e r i o d i c alimony i n the future. The appeal wife's request f o r an of attorney fees on i s denied. R E V E R S E D AND REMANDED WITH Thompson, Bryan, with award P.J., INSTRUCTIONS. and Pittman J . , concurs i n part writing. 28 a n d Thomas, and concurs J J . , concur. i n the result, 2090702 BRYAN, J u d g e , I concur concurring i n p a r t and c o n c u r r i n g with part that o f the main i n the r e s u l t . opinion discussing b u s i n e s s v a l u a t i o n , b u t I c o n c u r i n t h e r e s u l t as t o t h a t of t h e main opinion discussing periodic 29 alimony. part

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