Blount v. Blount

157 So. 3d 936, 2014 Ala. Civ. App. LEXIS 86, 2014 WL 1978874
CourtCourt of Civil Appeals of Alabama
DecidedMay 16, 2014
Docket2120662
StatusPublished

This text of 157 So. 3d 936 (Blount v. Blount) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blount v. Blount, 157 So. 3d 936, 2014 Ala. Civ. App. LEXIS 86, 2014 WL 1978874 (Ala. Ct. App. 2014).

Opinions

On Application for Rehearing ■

THOMAS, Judge.

The opinion of February 21, 2014, is withdrawn, and the following is substituted therefor.

Mary Jo Blount (“the former wife”) appeals from a judgment of the Madison Circuit Court (“the trial court”) in favor of Dale Herrin Blount (“the former hus[938]*938band”). We affirm the judgment of the trial court.

The parties were divorced in September 1990. The divorce judgment, which incorporated an agreement of the parties, ordered the former husband to pay the former wife $500 per month in periodic alimony.1 On September 5, 2012, the former wife filed in the trial court a petition for a modification of the divorce judgment in which she alleged that there had been a material change in circumstances and requested that the trial court increase her monthly periodic-alimony award. The former husband filed an answer to the petition on September 25, 2012.

A trial was held on April 23, 2013, at which the trial court heard evidence ore tenus. The trial court entered a judgment on May 3, 2013, in which it found that there had not been a material change in circumstances and denied the former wife’s request for a modification of alimony. The former wife filed a timely appeal with this court on May 9, 2013.

In her brief on appeal, the former wife argues that the trial court exceeded its discretion by failing to modify her award of periodic alimony and by failing to award her an attorney fee.

“Periodic alimony and its subsequent modification are matters resting within the sound discretion of the trial court, and the trial court’s judgment as to those issues will not be reversed absent a showing of an abuse of discretion. Tiongson v. Tiongson, 765 So.2d 643, 645 (Ala.Civ.App.1999).
“In Bray v. Bray, 979 So.2d 798 (Ala.Civ.App.2007), this court set forth the applicable standard of review as follows:
“ ‘ “Our standard of review when reviewing an appeal from a judgment granting or denying a requested modification of alimony is well settled.
“““An obligation to pay alimony may be modified only upon a showing of a material change in circumstances that has occurred since the trial court’s previous judgment, and the burden is on the party seeking a modification to make this showing. ...’
“ ‘ “Glover v. Glover, 730 So.2d 218, 220 (Ala.Civ.App.1998) (citation omitted).”
‘Ederer v. Ederer, 900 So.2d 427, 428 (Ala.Civ.App.2004).’
‘““Where a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong.”
‘“Sellers v. Sellers, 893 So.2d 456, 457-58 (Ala.Civ.App.2004).’
“979 So.2d at 800.”

Santiago v. Santiago, 122 So.3d 1270, 1278 (Ala.Civ.App.2013).

The former wife was 72 years old at the time of the trial. She testified that when the parties divorced in 1990 she was 50 years old and worked as a receptionist at a hospital earning $14,172 per year. According to the former wife, she had had difficulty maintaining employment as a receptionist or secretary after the divorce and is no longer qualified to hold those types of positions because, she said, she does not have the necessary computer [939]*939skills. The former wife further testified that since 2001 she has been working as a substitute teacher and as a child-care worker; she also testified that she began teaching ballroom dancing in 2005.

The former wife testified that her yearly taxable income, as shown on her income-tax returns, was $11,931 in 2008, $17,031 in 2009, $11,153 in 2010, $11,308 in 2011, and $15,230 in 2012. She specifically testified that her 2012 taxable income was composed of $6,780 she earned as a substitute teacher, $6,000 in alimony from the former husband, $2,436 from distributions from an individual retirement account (“IRA”), and $14 she earned, after deducting expenses, as a ballroom-dancing instructor. She also testified that she received $8,766 in Social Security benefits that were not included in her total income because those benefits are not taxed. The former husband’s attorney questioned the former wife regarding the expenses she claimed as business deductions from the income she earns as a ballroom-dancing instructor. The former wife testified in 2012 that she earned $4,021 teaching ballroom dancing, although she claimed only $14 as income from that endeavor on her tax return. However, she also admitted that the business expenses that she deducted were not incurred by her but, rather, by Vince Guerin, her dance partner who assists her with the ballroom-dancing instruction.

The testimony of both parties was that the former wife had been awarded roughly half the parties’ divisible assets in the divorce judgment.2 The former wife had been awarded approximately $40,000 as her share of the equity in the marital residence. The former wife also had been awarded 100 acres the parties had owned in Indiana; the former husband had been awarded 140 acres, also in Indiana.3 The former wife sold her 100 acres for $125,000 in 1993; according to her, the rent that she had received from the 100 acres was less than the taxes and other maintenance costs related to that property. The former husband testified that the 140 acres he still owned was currently worth approximately $1,000,000. The former wife further testified that she had been awarded her IRA that was worth approximately $20,000 at the time the divorce judgment was entered, $75,000 as her share of the parties’ investments, and $14,000 from another retirement account; the IRA, she testified, was worth approximately $73,000 at the time of the trial.

The former wife testified that she suffers from reflux esophagitis, irritable-bowel syndrome, insomnia, vertigo, lumbar scoliosis, arthritis, osteoporosis, and sciatic-nerve issues. She also introduced a list of her actual expenses from 2009 through 2012. She testified that she could not afford a computer, a cellular telephone, or cable television. She also testified that her house was in need of significant repairs, including repairs necessitated by termite damage, that she could not afford; she testified that she estimated that it would cost $16,287 to make the necessary repairs. In all, the former wife testified, her total monthly expenses for basic needs and repairs was $3,295. She asked the trial court to increase her monthly alimony award from $500 to $1,500.

The former husband testified that he is retired from NASA and that he [940]*940receives civil-service retirement benefits. The former husband’s 2012 income-tax return indicated that his total income for that year was $75,134. He testified that his monthly expenses were $4,925, which included gifts for the parties’ children and grandchildren.

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893 So. 2d 456 (Court of Civil Appeals of Alabama, 2004)
Garthright v. Garthright
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Glover v. Glover
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Stewart v. Stewart
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Whited v. Whited
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Santiago v. Santiago
122 So. 3d 1270 (Court of Civil Appeals of Alabama, 2013)
Shewbart v. Shewbart
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Bluebook (online)
157 So. 3d 936, 2014 Ala. Civ. App. LEXIS 86, 2014 WL 1978874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blount-v-blount-alacivapp-2014.