Neal G. Whatley v. Allison H. Whatley

Opinion

Rel: October 24, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS _________________________

CL-2025-0151 _________________________

Neal G. Whatley

v.

Allison H. Whatley

Appeal from Montgomery Circuit Court (DR-21-900613.02) _________________________

CL-2025-0271 _________________________

Neal G. Whatley

v.

Allison H. Whatley

Appeal from Montgomery Circuit Court (DR-21-900613) CL-2025-0151 and CL-2025-0271

MOORE, Presiding Judge.

In appeal number CL-2025-0271, Neal G. Whatley ("the husband")

appeals from a judgment entered by the Montgomery Circuit Court ("the

trial court") in case number DR-21-900613 ("the divorce action")

divorcing him from Allison H. Whatley ("the wife") to the extent that the

judgment divides the marital property and awards alimony to the wife.

In appeal number CL-2025-0151, the husband appeals from a judgment,

entered in case number DR-21-900613.02 ("the modification action"),

denying the husband's petition to modify his child-support obligation to

the wife. We affirm in part and reverse in part the judgment entered in

the divorce action. We affirm the judgment entered in the modification

action.

Background Regarding Divorce Action

The parties have previously appeared before this court. See

Whatley v. Whatley, 414 So. 3d 141 (Ala. Civ. App. 2024). This court

entered an order incorporating the record on appeal from Whatley into

the present appeals.

On October 27, 2021, the husband filed a complaint seeking a

divorce from the wife. He asserted, among other things, that the parties

2 CL-2025-0151 and CL-2025-0271

were married on April 21, 2018, and that there had been one child born

of the marriage ("the child") on February 5, 2019. The husband

requested, among other things, an award of joint legal and joint physical

custody of the child, the award of certain real and personal property, and

an equitable division of the parties' marital and individual debts. On

November 22, 2021, the wife filed an answer to the divorce complaint in

which she requested an award of sole physical custody of the child. On

January 10, 2022, the wife filed an amended answer and a counterclaim

for a divorce in which she asserted, among other things, that the husband

had committed adultery and had impregnated another woman during the

parties' marriage; she requested, among other things, sole physical

custody of the child, an award of child support, an equitable division of

the parties' real and personal property and debts, awards of alimony in

gross and periodic alimony, and an award of attorney's fees.

During the pendency of the divorce proceedings, the wife filed

multiple motions in which she asserted that the husband had failed to

respond to her requests for discovery. The trial court entered orders

directing the husband to respond to the wife's discovery requests, and, on

August 16, 2022, the trial court entered an order finding the husband in

3 CL-2025-0151 and CL-2025-0271

contempt of those orders and again directing the husband to comply with

all outstanding discovery requests. On December 8, 2022, the wife filed

a motion for sanctions and to compel discovery responses in which she

asserted that the husband had continued to refuse to comply with her

discovery requests and the trial court's orders related to discovery; on

March 9, 2023, she filed a motion requesting an expedited hearing on

that motion and seeking to compel discovery or to continue the trial. On

April 4, 2023, the trial court entered an order directing that the wife's

motion would be heard on April 17, 2023, the day the case was scheduled

for trial, and directing the husband to be prepared to show cause as to

why he should not be held in contempt. On April 17, 2023, the case was

called for trial; the trial court first heard testimony and arguments

related to the wife's December 8, 2022, motion for sanctions before

proceeding to the merits of the divorce action. The trial resumed on April

19, 2023, after which the husband filed, on April 27, 2023, his first

amended complaint in which he sought to include adultery by the wife as

an additional ground for the divorce. The trial concluded on May 2, 2023.

On August 28, 2023, the trial court entered a final judgment

divorcing the parties ("the divorce judgment") on the ground of the

4 CL-2025-0151 and CL-2025-0271

parties' incompatibility. The trial court awarded the parties joint legal

and joint physical custody of the child, with the parties to exchange

physical custody on an alternating weekly basis. The trial court directed

the husband to pay all expenses for medical, dental, ophthalmological,

orthodontic, counseling, and other related expenses incurred by the child

not covered by insurance and to pay child support to the wife in the

amount of $2,992 per month. The divorce judgment also awarded the

husband the marital residence and made him responsible for payment of

the outstanding mortgage indebtedness on that residence. Regarding

alimony and the division of property, the divorce judgment provided, in

pertinent part:

"14. The wife is awarded periodic alimony in the amount of $3,500 per month for four years (48 months). Alimony will commence on September 01, 2023, and shall be due and payable on the first (1st) day of each month thereafter, until August 01, 2027.

"15. The Court finds from the most recent Financial Statement signed by the husband and submitted as Husband's Exhibit 5, the husband's net worth as of May 31, 2023, was $8,889,930.00. The Court further finds that between the time the parties married in April 2018 to October 25, 2021, based on Husband's Exhibit 8, the husband had accumulated a net worth of $2,123,153.00. There was no reported Financial Statement or evidence as to any net worth of either the husband or the wife prior to 2019 or the date of marriage. The wife suggested in her testimony, which was

5 CL-2025-0151 and CL-2025-0271

not disputed, that the parties initially lived 'from check to check.' The husband filed for divorce in October 2021, and based on the testimony, the parties remained together a few months after the divorce was filed. The wife was a stay at home mom, and was the primary caretaker of the child, N.G.W., who was born on February 02, 2019. The wife also suggested she assisted to some degree with the husband's businesses such as investments advice, viewing perspective properties, and monitoring the radio traffic for the trucking business. While the wife cared for the child and the home, the husband built his various businesses and accumulated the wealth referenced herein. The husband accumulated a net worth [of] $2,123,153.00 while the parties were living together as husband and wife through October 2021. The wife is therefore awarded 50% or $1,061,577.00 of the said accumulated net worth as of October 25, 2021. The husband accumulated an additional net worth of approximately $6,766,777.00 between November 2021 and May 2022. It appears from the testimony, that the parties were still living as husband and wife for a period of approximately three months during this period, and the wife remained a stay at home mom and the primary caretaker of the minor child for this entire period. The wife is therefore awarded 20% of the said additional net worth of $6,766,77.00 accumulated during the said period or $1,353,355.00. The net worth includes the marital home and any associated equity therein. The wife's share of the said net worth accumulated during the marriage is approximately 27% and the husband's share is approximately 73%. The court finds the said property division to be fair and equitable.

"16. The payment of the said $2,414,932.00 shall be paid by the husband to the wife over a period of forty-eight (48) months. The husband shall pay equal monthly payments to the wife in the amount of $50,311.08, commencing on October 01, 2023, and continuing on the first day of each month thereafter until September 01, 2027."

6 CL-2025-0151 and CL-2025-0271

In addition to those awards, the divorce judgment awarded the wife

certain personal property; banking and investment accounts in her

individual name; any retirement benefits that she had accumulated; and

a 2020 Chevy Tahoe or any vehicle currently in her possession, with the

husband to pay any indebtedness owed thereon and the wife to be

responsible for insurance, repairs, and maintenance expenses associated

with that vehicle. The husband was awarded all items of personal

property that he had owned before the marriage, had been inherited by

him, or had been given to him, and his personal items and belongings;

the balances in the banking and/or investment accounts held in his

individual name; all right, title, and interest in any businesses, holdings,

or partnerships owned by him that were not otherwise awarded,

including a house in Santa Rosa Beach, Florida; any retirement benefits

accumulated by him through his current or previous employments; the

items of personal property presently in his possession; and any vehicle

currently in his possession, with the husband to be solely responsible for

any and all indebtedness thereon. The trial court ordered the wife to be

responsible for all existing debts that had been incurred by her, except

7 CL-2025-0151 and CL-2025-0271

for those debts that were specifically listed and were to be paid for by the

husband.

Regarding the wife's contempt motion, the divorce judgment

provides:

"24. The court finds the husband's conduct and repeated violation of the court's orders to be blatant. It was quite clear to the court that the husband had every intent to hide or otherwise secret his assets from the wife and this court, thus failing to comply with discovery request[s] and this court's orders compelling him to do so. The husband is found in contempt of this court's order of August 16, 2022, which further compelled him to comply with any and all outstanding discovery request[s] and which imposed a $100.00 daily fine for his failure to comply. As of the date of the hearing herein, nine months later, the husband had still not complied with the court's order. He had failed to comply for approximately 250 days, causing the wife to expend time and money to obtain the requested information on her own, although he had the ability to provide such information."

The trial court fined the husband $5,000 for the more than 50 days that

he continuously failed to comply with the trial court's orders and directed

the husband to pay that amount to the clerk of the court within 30 days;

awarded the wife $100,000 in attorney's fees; and entered a judgment

against the husband and in favor of the wife in the amount of $17,190 for

expert-witness services.

8 CL-2025-0151 and CL-2025-0271

On September 27, 2023, the husband filed a motion to alter, amend,

or vacate the divorce judgment. Following a hearing, the trial court

entered an order on December 18, 2023, granting the motion, in part.

Specifically, the trial court amended paragraph 14 of the divorce

judgment to state:

"The wife is awarded periodic alimony in the amount of $3,500.00 per month for three years (36 months). Alimony will commence on September 01, 2023, and shall be due and payable on the first (1st) day of each month thereafter, until August 1, 2026. The court finds that the wife's current estate is insufficient and does not allow her to preserve or continue in the economic status she enjoyed during the marriage. The husband has the demonstrated ability to provide the said support without undue hardship, and the said award is equitable under the facts and circumstances of this divorce."

Additionally, the trial court amended paragraph 16 to direct the husband

to pay the $2,414,932 awarded to the wife over a period of 60 months in

equal payments of $40,248.86. The trial court denied all remaining relief

requested.

On December 22, 2023, the husband filed a notice of appeal to this

court. In Whatley, this court reversed the divorce judgment and

remanded the case for the trial court to enter a new judgment clarifying

whether it had intended to award the wife rehabilitative alimony or

periodic alimony, in accordance with Ala. Code 1975, § 30-2-57.

9 CL-2025-0151 and CL-2025-0271

The Divorce Action Following Remand

On October 16, 2024, this court entered a certificate of judgment in

Whatley, ordering that the costs of the appeal were to be "taxed against

the appellee(s) as provided by Rule 35, Ala. R. App. P." On October 23,

2024, the husband filed a motion in the trial court requesting an order

taxing the costs of the appeal in Whatley to the wife in the amount of

$4,636.50, representing amounts incurred for the payment of this court's

docket fee and the costs of producing the necessary copies of the clerk's

record and the reporter's transcript in Whatley. He attached exhibits to

his motion in support of the amounts requested. On November 11, 2024,

the wife filed an objection to the husband's motion. On March 19, 2025,

the wife filed a motion requesting the entry of a judgment in accordance

with this court's opinion in Whatley. On March 28, 2025, the trial court

entered a judgment ("the final judgment") amending paragraph 14 of the

divorce judgment to state:

"The [w]ife is awarded rehabilitative alimony in the amount of $3,500.00 per month for three years (36 months), beginning on September 1, 2023, and shall be due and payable on the first (1st) day of each month thereafter, until August 1, 2026. The Court finds that the [w]ife's current estate is insufficient and does not allow her to preserve or continue in the economic status she enjoyed during the marriage. The [h]usband has demonstrated ability to provide the said support without

10 CL-2025-0151 and CL-2025-0271

undue hardship, and the said award is equitable under the facts and circumstances of this divorce. Particularly, the Court notes the [h]usband spent lavishly on his paramour at the time of filing for divorce and continuing throughout the divorce proceedings. Testimony and evidence submitted to the Court indicated the [h]usband earns substantial income, whether said income was reported on [the] [h]usband's CS-41 form, or not. Given [the] [h]usband's business ownership and industry experience, the Court finds the [h]usband possesses substantial future earning capacity. The [w]ife stayed at home, by agreement of the parties, during the marriage to raise the parties' minor child. Moreover, trial testimony suggested that [the] [w]ife's long-term financial independence and future earning ability were uncertain due to [the] [w]ife's lingering medical issues. Testimony also suggested that [the] [h]usband's ability to earn more than the [w]ife weighed in favor of awarding rehabilitative alimony. The [h]usband was awarded the marital home and a second residence in Santa Rosa Beach, Florida that he purchased shortly after filing for divorce for his paramour to reside in. The [h]usband was awarded all commercial real estate and income producing real estate. The [h]usband was awarded all business interests, investment accounts, retirement accounts, checking accounts, savings accounts and all other investments. While the [w]ife was awarded a property settlement for her interest in the assets of the marriage. The [w]ife was awarded her vehicle, her personal belongings, and furniture in her possession. Thus, the Court finds … rehabilitative alimony to be warranted and appropriate under the circumstances of this matter."

The trial court directed that all other terms and conditions of the divorce

judgment and the December 18, 2023, postjudgment order amending the

divorce judgment not otherwise amended or corrected were to remain in

full force and effect. It directed also that all other requested relief not

11 CL-2025-0151 and CL-2025-0271

specifically addressed was denied. On April 14, 2025, the husband filed

a notice of appeal to this court. On April 25, 2025, this court entered an

order consolidating the husband's appeal in the divorce action with his

appeal in the modification action, which is discussed in more detail, infra.

Appeal No. CL-2025-0271

Standard of Review

"The issues of property division and alimony are interrelated, and, therefore, they must be considered together on appeal. Albertson v. Albertson, 678 So. 2d 118, 120 (Ala. Civ. App. 1996). When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So. 2d 230, 235 (Ala. Civ. App. 2001); Parrish v. Parrish, 617 So. 2d 1036, 1038 (Ala. Civ. App. 1993); and Hall v. Mazzone, 486 So. 2d 408, 410 (Ala. 1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish, 617 So. 2d at 1038. In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, 795 So. 2d 729, 734 (Ala. Civ. App. 2001)."

Stone v. Stone, 26 So. 3d 1232, 1236 (Ala. Civ. App. 2009).

Discussion

12 CL-2025-0151 and CL-2025-0271

The Valuation Date for the Marital Estate

The husband first argues that the trial court erred in determining

the valuation date for the marital estate. Specifically, he asserts that the

trial court erred in awarding the wife a property settlement that included

amounts earned by the husband after he filed his complaint for a divorce.

Section 30-2-51(b)(1), Ala. Code 1975, provides:

"The marital estate is subject to equitable division and distribution. Unless the parties agree otherwise, and except as otherwise provided by federal or state law, the marital estate includes any interest, whether vested or unvested, either spouse has acquired, received, accumulated, or earned during the marriage in any and all individual, joint, or group retirement benefits including, but not limited to, any retirement plans, retirement accounts, pensions, profit- sharing plans, savings plans, annuities, or other similar benefit plans from any kind of employment, including, but not limited to, self employment, public or private employment, and military employment."

The Alabama Comment to § 30-2-51 states, in pertinent part, that "[t]he

statute intentionally fails to define the term 'during the marriage,'

leaving it to the court to decide based on the evidence and equitable

considerations the appropriate starting and ending date of the marriage

for all purposes under the statute." The husband asserts that Alabama

law provides little guidance on what factors a trial court should consider

in determining the starting and ending date of a marriage for purposes

13 CL-2025-0151 and CL-2025-0271

of valuing the marital estate; he cites cases from other jurisdictions and

urges this court to adopt approaches applied by those jurisdictions to

provide guidance on the proper date for the valuation of marital assets,

particularly regarding the appreciation of the value of a marital asset

following the filing of a complaint for a divorce. Although the husband

failed to present those arguments and various approaches to the trial

court for its consideration, see Andrews v. Merritt Oil Co., 612 So. 2d 409,

410 (Ala. 1992), we note that, in his analysis of each of the approaches

employed in other jurisdictions on appeal, the husband challenges the

findings relied on by the trial court in fashioning its property division, as

he did in his postjudgment motion. Accordingly, we proceed to consider

the husband's challenges to the sufficiency of the evidence in support of

the final judgment on this issue.

The husband argues that the trial court abused its discretion in

awarding the wife amounts that he earned after the filing of the divorce

complaint because, he says, the parties had ceased living together as

husband and wife at that time, no attempts at reconciliation had been

made, the wife had not contributed to the increase in the value of his

assets following the filing of the divorce complaint, and that increase was

14 CL-2025-0151 and CL-2025-0271

directly attributable to his sole efforts and should accrue only to him.

First, we note that, at the trial on April 17, 2023, when asked whether he

was "still living at home with [the wife] in fact after [he] filed for divorce,"

the husband replied "[f]or a certain period of time, yes," and then replied

in the affirmative when asked if that period had been "[f]or at least a

couple of months." The wife testified that she and the husband had

continued to engage in sexual relations after the husband filed for a

divorce and that she had wanted to reconcile with the husband for the

best interests of the child until she had learned in mid-December 2024

that the husband had impregnated another woman, which, she said, had

prompted her to file her amended answer and counterclaim for a divorce.

Both parties testified at the pendente lite hearing and at the trial that,

following the filing of the divorce complaint, they had continued to reside

in the marital residence until January 10, 2022. We conclude, therefore,

that, contrary to the husband's arguments on appeal, there was evidence

presented that supports the trial court's finding that the parties had

continued to reside together as husband and wife for a period following

the filing of the husband's divorce complaint.

15 CL-2025-0151 and CL-2025-0271

To the extent that the husband asserts that the wife should not

have received any part of the amounts that the husband had earned

following the filing of the divorce complaint because she did not

contribute to the increase in the value of assets during that period, we

note that the trial court found in the final judgment that the wife had

continued to stay at home with the child as his primary caretaker during

the period that the parties continued to reside together following the

filing of the divorce complaint, as she had before the husband filed his

complaint for a divorce. The wife testified at the trial that she had not

been employed during the marriage and that she had relied on the

husband's income because the parties had agreed for her to stay at home

and take care of the child. She stated that she had supported and

contributed to the husband's career and that the parties had agreed to

invest their income during the marriage to allow them to retire early.

The husband presented evidence indicating that the wife had not had any

involvement in his businesses after he filed for a divorce. He does not

point to any evidence in the record, however, indicating that his increased

income after he filed the divorce complaint was not attributable to actions

that had been taken before that time. There was evidence from which

16 CL-2025-0151 and CL-2025-0271

the trial court could have concluded that the husband's increase in

income following the filing of the divorce complaint was the result of the

parties having reinvested their income during the marriage rather than

the husband's efforts and industry after he filed for a divorce.

Additionally, the trial court could have concluded from the evidence

presented that the wife had contributed to the husband's ability to earn

by continuing to care for the child during the period that they resided

together following the filing of the divorce complaint, as she had during

the marriage, such that the award of a portion of the husband's earnings

during that period to the wife was equitable.

This court is not permitted to reweigh the evidence or to substitute

its judgment for that of the trial court. See Robinson v. Robinson, 373

So. 3d 825, 828 (Ala. Civ. App. 2022). Because the trial court's findings

are supported by the record on appeal, we cannot conclude that the trial

court erred in determining the ending date of the marriage for the

purpose of valuing the marital estate for equitable division, and, thus,

that portion of the divorce judgment is affirmed.

17 CL-2025-0151 and CL-2025-0271

Valuation of the Marital Estate

The husband next argues on appeal that the trial court erred in

relying on Husband's Exhibit 5 in paragraph 15 of the final judgment in

formulating its property division because, he says, that exhibit was

neither credible nor trustworthy. During that portion of the trial on April

17, 2023, dedicated to the wife's December 8, 2022, motion for sanctions,

the husband introduced Husband's Exhibit 6, which, he testified, was a

personal financial statement that he had provided to River Bank & Trust

("River Bank") on July 1, 2022, and which included a financial statement

that he had submitted with a cover letter to River Bank indicating that,

after subtracting his total liabilities, his assets totaled $6,889,930 as of

May 31, 2022. The husband identified Husband's Exhibit 5 as one of

several documents that he had received from the wife as one of her

potential exhibits. He testified that the first two pages of that exhibit are

the same as the first two pages of Husband's Exhibit 6 but that the

financial statement in the wife's exhibit listed the husband's assets, after

deducting his total liabilities, as totaling $8,889,930, rather than

$6,889,930. The husband testified that he did not know where that

18 CL-2025-0151 and CL-2025-0271

financial statement came from but that it had not been produced by River

Bank.

The wife testified that, before the husband filed the complaint for a

divorce, he had set up an Adobe account for the wife; that, for four or five

years preceding the trial, any document that the husband had scanned

into the Adobe account was saved into the same folder of scanned

documents as those documents scanned by the wife; and that she had

located the husband's scanned documents the week before the trial

began. According to the wife, among the scanned documents was a

personal financial statement that had been signed by the former husband

on May 31, 2022, and indicated that his net worth at that time totaled

$8,889,930. When asked whether that document bore his signature, the

husband responded: "I believe so." When asked whether he had prepared

that personal financial statement, the husband answered: "Possibly."

And, when asked whether he had scanned that document into the Adobe

account, he stated: "Potentially." The husband was subsequently

presented with a printed document and asked if he could see from that

document that, on May 31, 2022, two documents had been scanned into

the Adobe account, both of which were personal financial statements; he

19 CL-2025-0151 and CL-2025-0271

answered in the affirmative. He later admitted that he had signed the

statement listing his net worth as $8,889,930 and had prepared two

personal financial statements on May 31, 2022, but, he stated, "[o]ne was

in error."

At the close of the trial on May 2, 2023, the trial court returned its

attention to the competing personal financial statements dated May 31,

2022, at which time the husband stated that he had "forgot about two

million in debt that he borrowed for the company" at the time he signed

the statement indicating that his net worth totaled $8,889,930. There

was a brief discussion between the parties' counsel, and, before the

discussion transitioned to other issues, the trial court asked: "So we

settled on the six million? Is that what you're saying?" At the hearing

on the husband's postjudgment motion, the trial court noted that the

husband had prepared, signed, and dated the personal financial

statement indicating that his net worth totaled $8,889,930; that the

corresponding statement from the same date listing his net worth as

$6,889,930 that had been submitted to River Bank was not signed; that

other personal financial statements that the husband had produced had

been standalone documents that were not accompanied by bank

20 CL-2025-0151 and CL-2025-0271

documents like the statement he had signed on May 31, 2022; and that

the husband had relied on those statements as representing his net worth

at the time those statements were prepared. Those findings support the

trial court's reliance on Husband's Exhibit 5, rather than on Husband's

Exhibit 6.

The husband argues on appeal that the trial court erred in

considering Husband's Exhibit 5 because, he says, the evidence shows

that that document contained an error. The husband maintains that the

trial court ignored that the husband had introduced that exhibit only to

bring to the trial court's attention that the wife's proposed exhibit

misrepresented that the statement with the incorrect amount had been

submitted to River Bank. We note that the only evidence on which the

husband relies to establish that the amount reflected in Husband's

Exhibit 5 is an incorrect statement of the husband's net worth is the

husband's testimony that the document contains an error. Thus, the

husband's argument "is dependent on the credibility of his testimony,

which was an issue to be decided by the trial court, not this court."

Prakash v. Pandey, 331 So. 3d 1158, 1166 (Ala. Civ. App. 2021). This

court has stated that, "in ore tenus proceedings, the trial court has the

21 CL-2025-0151 and CL-2025-0271

advantage of seeing and hearing the witnesses and assessing their

demeanor and is in the best position to decide among conflicting

testimony which testimony is to be believed." Dubose v. Dubose, 172 So.

3d 233, 245 (Ala. Civ. App. 2014). In the present case, the trial court was

not required to accept the husband's explanation for the discrepancy in

the two May 2022 personal financial statements reflecting different

amounts of the husband's net worth. Prakash, 331 So. 3d at 1166

(holding that trial court was not required to accept husband's explanation

for his change in employment resulting in a reduction in his income for

purposes of computing child support and alimony). Because the trial

court's determination that the husband's net worth as outlined in

Husband's Exhibit 5 was reliable and its decision to base its calculation

of the property settlement on that amount are supported by the evidence

presented, we cannot conclude that those decisions are plainly and

palpably wrong. See Stone, supra.

Property Division

The husband next argues on appeal that the trial court's division

and distribution of the marital estate was inequitable. First, he asserts

that the trial court failed to consider the illiquidity of the husband's

22 CL-2025-0151 and CL-2025-0271

assets and the consequences of its implicit requirement that the husband

liquidate those assets to satisfy the property settlement awarded to the

wife. He cites in support of his argument Wells v. Wells, 428 So. 2d 88

(Ala. Civ. App. 1983); Robinson v. Robinson, 795 So. 2d 729 (Ala. Civ.

App. 2001); Malkove v. Malkove, 349 So. 2d 52 (Ala. Civ. App. 1977); and

McCarron v. McCarron, 168 So. 3d 68 (Ala. Civ. App. 2014). The husband

cites Wells for the proposition that "the amount awarded one spouse

should not cripple the other spouse by requiring the paying spouse to

sacrifice his property or business." 428 So. 2d at 90. In that case, the

former wife was awarded essentially all the marital property other than

a valuable business corporation of which the former husband was the sole

owner. Id. at 91. This court affirmed the division of property and the

award of alimony in gross in that case after concluding that the trial court

could have determined that dividing the business or awarding a larger

amount of alimony in gross in a lump sum could have forced a sale of the

former husband's business assets, which, we said, would have restricted

or prevented him from providing further support to the former wife and

the parties' child. Id. at 90-91.

23 CL-2025-0151 and CL-2025-0271

In Robinson, the former husband was awarded his business and

business equipment while the former wife was awarded the marital

residence and surrounding property, her separate business, and other

property belonging to the parties, in addition to a portion of the former

husband's retirement account. 795 So. 2d at 734. This court

acknowledged that the former husband was awarded no assets from

which he could pay the property settlement that had been awarded to the

former wife other than the remaining portion of his retirement account

and that requiring him to use that account to pay the property settlement

would require him to incur substantial tax liability, which could virtually

negate the award of the account to him and effectively leave him with

only his business, which we determined would be inequitable. Id. at 735.

In Malkove, this court rejected the former wife's challenge to that

portion of a divorce judgment allowing the former husband to pay his

alimony-in-gross obligation to her over a period of more than 10 years

because, we said, the argument "assume[d] the existence of a greater sum

of liquid assets available for investment than [was] ... present and also

ignore[d] the tax consequences likely to result from the sale of assets by

the husband." 349 So. 2d at 55. Other than the former husband's interest

24 CL-2025-0151 and CL-2025-0271

in the marital residence and property that was leased by his business,

the majority of the former husband's assets consisted of securities. Id. at

53. This court acknowledged that requiring the former husband to sell

his business stock or land would have deprived him of his livelihood and

that requiring mass liquidation of the former husband's investment

properties "might well have resulted in adverse tax and other

consequences so as to seriously impair the [former] husband's future

earning power and, consequently, his continued ability to meet his

periodic alimony and child support obligations." Id. at 55.

In McCarron, this court determined that a judgment of divorce

requiring the former husband to pay to the former wife a property

settlement in the amount of $400,000 within 30 days of the entry of the

judgment for her share of his ownership interest in a closely held family

corporation, which both parties had been depending on to support them

in their retirement, was due to be reversed. 168 So. 3d at 79-81. We

considered the evidence in the record indicating that the parties did not

have any liquid assets at the time of the trial, that all of their real

property was encumbered by debt, and that the trial court had implicitly

acknowledged that the former husband would likely be unable to readily

25 CL-2025-0151 and CL-2025-0271

pay that obligation within a 30-day period. Id. at 79-80. Thus, we

reversed the judgment and remanded the case for the trial court to

determine an appropriate and reasonable installment plan and,

acknowledging that the development of such a plan would likely impact

the former husband's income with which to pay periodic alimony to the

former wife, we directed the trial court to consider the former husband's

ability to pay periodic alimony as well. Id. at 81. This court noted that,

"[b]ecause of the [former] husband's adultery, the trial court determined

that, between the parties, it should be the [former] husband who should

endure any diminution in the lifestyle of the parties," but we cautioned

that, "even in cases of marital misconduct, the alimony award should not

be so oppressive as to leave 'the parties in an unconscionably disparate

financial position.' " 168 So. 3d at 81 (citing Shewbart v. Shewbart, 64

So. 3d 1080, 1089 (Ala. Civ. App. 2010)).

In the present case, the husband argues that the trial court's

requirement that he pay to the wife $40,248.86 per month for 60 months

to satisfy the $2,414,932 property settlement is due to be reversed. He

asserts that the trial court determined his monthly income to be $36,800

per month but that his combined monthly obligations for child support,

26 CL-2025-0151 and CL-2025-0271

alimony, noncovered medical and other expenses for the child, and the

amount of the property settlement exceed that amount. Contrary to the

husband's assertion, the trial court did not make a finding regarding the

husband's monthly income in the final judgment. In calculating child

support, the trial court made a finding that the parties' combined

adjusted gross income exceeded the uppermost limits of the Rule 32, Ala.

R. Jud. Admin., child-support guidelines. Although the final judgment

and accompanying documents suggest that the trial court employed an

income amount for the husband of approximately $36,800 per month in

determining the amount of child support to be paid by the husband, the

trial court made a finding in its March 28, 2025, postjudgment order

amending the divorce judgment that the husband "earns substantial

income, whether said income was reported on [the] [h]usband's CS-41

form, or not." The husband's CS-41 income affidavit, which the husband

filed on April 14, 2023, indicated that, at that time, he was earning a total

monthly gross income in the amount of $37,066, which the husband said

was reached using the amount he received in income from his trucking

company, NG Whatley Trucking, LLC, of which the husband is the sole

owner, and from distributions that he was receiving from BFS Logistics,

27 CL-2025-0151 and CL-2025-0271

LLC, another of the husband's companies,1 in addition to other

employment-related income, distributions, or fringe benefits that were

being run through the companies for his benefit, including his vehicle,

club memberships, and fuel expenses. We note that the monthly income

amount listed by the husband on his CS-41 income affidavit is greater

than the amount used by the trial court in determining the amount of

child support to be paid by the husband; thus, the trial court clearly

concluded that amounts greater than $37,066 were available to the

husband as monthly income. That finding is supported by the evidence

presented.

For instance, the husband testified that he owns 100% of a

company, Rose Holdings, LLC, which he said owns the interest in another

company, Equity Pavilion, LLC, which, in turn, receives income from

investment properties that generate approximately $14,400 in rental

income each month. The husband testified that he had not included

1The testimony indicates that the husband owns half of a holding

company called BFS Holdings, LLC, along with Graham Sutter. William Scott Barranco, the chief financial officer of BFS Holdings, testified that four subcompanies fall under BFS Holdings, including BFS Carriers, LLC; BFS Logistics, LLC; BFS Real Estate, LLC; and BFS Leasing, LLC. When asked if BFS Logistics was his company, the husband answered in the affirmative. 28 CL-2025-0151 and CL-2025-0271

rental income that went to Rose Holdings on his CS-41 income affidavit

because, he said, it is "not realized income"; however, when asked

whether all the earnings of Rose Holdings flow directly to him, he stated:

"Eventually, yes." The wife testified that, during the marriage, the

parties spent $15,000 to $20,000 as a family each month and that

everything they spent came from Rose Holdings. The husband

acknowledged that, in 2022, during the pendency of the divorce action,

his bank accounts for Rose Holdings reflected personal expenditures

between $22,000 and $25,000 for different four-month periods; he

acknowledged that many of those expenditures had been made by his

paramour, Brittany Sullivan, with whom he had fathered a child during

the pendency of the divorce action.

The husband testified that he receives $5,500 in rental income from

JB Hunt Transport, Inc., a larger trucking company in which he owns an

interest; that he still owes a debt and pays operating expenses on the

property generating that rental income; and that that income also was

not included on his CS-41 income affidavit. The wife testified that the

husband had told her in June 2021 that his personal income totaled

$800,000 per year. Additionally, the wife presented the testimony of

29 CL-2025-0151 and CL-2025-0271

Jason Wells, a certified public accountant, who testified as an expert that

documents he had been provided related to the husband's income

reflected a net income to the husband in 2022 in the amount of

approximately $2.3 million; he stated that that amount did not include

all the companies in which the husband has an interest. Although the

husband presented the testimony of Charles Eddy, a certified public

accountant, who challenged Wells's testimony regarding the husband's

income, the trial court could have considered the evidence presented as a

whole in concluding that the husband was earning a significant amount

of monthly income beyond what he had represented in his CS-41 income

affidavit.

Even assuming that the trial court was bound to accept the

husband's assertions regarding his monthly income, we note that the

husband does not cite any authority indicating that a property settlement

is required to be payable from the husband's monthly income. See Rule

28(a)(10), Ala. R. App. P. Indeed, as stated in McCarron, a trial court is

charged with equitably dividing marital property and implementing a

fair method for distributing the property. 168 So. 3d at 75. The husband

argues that the divorce judgment implicitly requires him to liquidate his

30 CL-2025-0151 and CL-2025-0271

assets to satisfy the monetary awards to the wife. We acknowledge that,

at the December 18, 2023, hearing on the husband's postjudgment

motion, the husband's counsel argued that the husband's cash on-hand

was limited and that his remaining assets were tied up in the house or in

his businesses, to which the trial court responded: "That could be

liquidated." The husband argues that the majority of his assets are in

the form of business equity; that awarding him his business interests

while requiring that he sell them to satisfy the property settlement to the

wife negates the award, like in Robinson; that the property division

ignores the impairment of his future earning power and his ability to

provide support for the wife and the child, as discussed in Wells and

Malkove; and that the property division ignores the adverse tax and other

consequences the husband will face from a mass liquidation of his

business equity.

Contrary to the husband's arguments, however, unlike in Wells or

Robinson, in which the payor spouse was not awarded any property other

than their businesses from which to pay the lump sums awarded to the

payee spouses, the husband in the present case was awarded both the

marital residence and a second home located in Santa Rosa Beach,

31 CL-2025-0151 and CL-2025-0271

Florida, which, according to the husband, he had purchased in January

2022 for $615,000, using $130,000 that he had removed from other

accounts as a down payment, and in which Sullivan resided; when asked

whether he was paying all the expenses for that house, the husband

replied: "Possibly." The wife testified that the parties had paid $465,000

to purchase the marital residence in February 2021; both parties testified

that they had made significant renovations to the residence, and,

according to the wife, at the time of the trial on April 19, 2023, the

residence was worth at least $700,000, with a mortgage balance in the

amount of $397,811.17. Thus, there was evidence presented indicating

that the husband had other assets from which he could pay a portion of

the amounts awarded to the wife without depriving him of his means of

livelihood like in Wells or Malkove.

In Samayamanthula v. Patchipulusu, 338 So. 3d 787, 800 (Ala. Civ.

App. 2021), the former husband argued that he had been ordered to pay

to the former wife monetary awards that exceeded his available assets,

like the husband in the present case. In Samayamanthula, this court

rejected the former husband's argument and affirmed the property

division based on his failure to account for his lack of credibility at trial,

32 CL-2025-0151 and CL-2025-0271

particularly regarding financial matters; the fact that the trial court

could have concluded that he had substantial hidden financial assets

based on the parties' past incomes and his behavior as to discovery; the

former husband's actions related to a rental property owned by the

parties, including his having refinanced that property for a greater

amount than had been owed on the property at the time and having used

the proceeds obtained from the refinancing; and the trial court's

consideration of the former husband's financial situation and use of a

long-term payment schedule. Id. at 800-01. Like in Samayamanthula,

the trial court in the present case concluded that the husband had failed

to comply with the wife's discovery requests and with orders entered by

the trial court directing him to respond thereto. The trial court

specifically made findings in the final judgment that the husband's

conduct had been blatant and clearly evidenced his intent to hide or

secret his assets from the wife and the court. Throughout the

proceedings, the husband answered questions regarding his finances

evasively, often responding "possibly," "probably," "potentially," or "could

be" to inquiries related to discovery, his business interests, his

expenditures, and his financial standing.

33 CL-2025-0151 and CL-2025-0271

Additionally, evidence was presented indicating that, during the

pendency of the divorce action, the husband had purchased

approximately $68,000 of jewelry, the majority of which was for Sullivan

and included a $32,000 diamond ring, in addition to other exorbitant

purchases he had made for Sullivan. The trial court also noted at the

hearing on the husband's postjudgment motion that it had considered the

husband's testimony indicating that, although he had neither needed nor

employed a consultant before, he had entered into a consulting-services

agreement with Sullivan through Rose Holdings, pursuant to which he

paid her $2,500 per month, as well as paying an additional $3,000 for a

company vehicle and insurance, an employee housing stipend, and

company-paid health and dental insurance. The husband acknowledged

at the trial that he had withdrawn approximately $70,000 from a

personal bank account between the time he had filed for a divorce and

March 2022. When asked what he did with that amount of money, he

responded: "In my business, people would rather deal in cash when you

buy and sell equipment." When questioned whether he would pay those

amounts from his personal account and then write them off as business

expenses, the husband stated: "I don't recall exactly how I did it." At the

34 CL-2025-0151 and CL-2025-0271

hearing on the husband's postjudgment motion, the trial court noted the

removal of the $70,000 as well as another $217,000 that the husband

acknowledged that he had withdrawn from a brokerage account between

October and December 2021 but that the husband could not account for

in considering that a lot of money had gone missing during the pendency

of the divorce action. Based on the evidence presented regarding the

husband's expenditures and cash withdrawals during the pendency of the

divorce action, the trial court could have concluded that, like in

Samayamanthula, the husband had additional liquid assets from which

he could make the monthly payments to satisfy the property settlement

to the wife without crippling the husband or requiring him to sacrifice

his business holdings, unlike in Wells, Robinson, or Malkove.

To the extent that the husband argues that the property division is

not equitable when considering the circumstances presented, we

disagree. The husband argues that, in light of the short duration of the

parties' marriage, the parties' disparate financial positions before the

marriage, the wife's having obtained a college degree, and her ability to

earn weigh in favor of allowing the husband to retain a larger share of

the marital estate. Regarding the husband's argument that he entered

35 CL-2025-0151 and CL-2025-0271

the marriage with a gift of assets and the transfer of a business from his

father and brother that entitles him to retain a larger share of the marital

estate, we note that the trial court was presented with the wife's

testimony indicating that the parties had lived paycheck to paycheck at

the outset of the marriage, that the company that had been transferred

to the husband from his family had been in debt, and that that company,

which was later rebranded as NG Whatley Trucking, had become

profitable only during the marriage. Having determined previously that

the trial court could have concluded that the wife had contributed to the

husband's ability to earn, we decline to further address the husband's

argument on this issue. Additionally, despite the evidence indicating

that the wife had earned a college degree, the wife also testified that she

was employed at the time of trial earning a gross income in the amount

of $3,200 per month and that she has certain medical conditions that

involve painful sores on her face and scalp, extreme nerve pain, and loss

of sensation in her hands and feet that is exacerbated by stress. As

discussed above, the trial court was presented with evidence in support

of its determination that the husband has the capacity to earn a

significant income, particularly in light of the extensive business

36 CL-2025-0151 and CL-2025-0271

interests that he was awarded in the final judgment. The trial court

noted that it had awarded the husband 73% of the net worth accumulated

during the marriage, while awarding the wife only 27%; thus, the

husband retained a larger share of the marital estate. Based on the

evidence presented, we cannot conclude that the trial court exceeded its

discretion in dividing the marital property in this case. See Stone, supra.

Alimony

The husband next argues that the trial court erred by awarding the

wife alimony. First, he asserts that the trial court erred in concluding

that the wife's current estate is insufficient to allow her to preserve or to

continue in the economic status that she enjoyed during the marriage.

Section 30-2-57(b)(1), Ala. Code 1975, directs that a trial court shall

award rehabilitative alimony "of an amount to enable the party to acquire

the ability to preserve, to the extent possible, the economic status quo of

the parties as it existed during the marriage." Section 30-2-57(d)

provides a list of factors for a trial court to consider in determining

whether a party has a sufficient separate estate to preserve, to the extent

possible, the economic status quo of the parties as it existed during the

marriage; those factors include, among others, the party's own individual

37 CL-2025-0151 and CL-2025-0271

assets, the marital property received by or awarded to the party, the

liabilities of the party following the distribution of the marital property,

the party's wage-earning capacity, and any benefits that will assist the

party in obtaining and maintaining gainful employment.

As recounted above, the wife testified that, during the marriage,

the parties collectively spent $15,000 to $20,000 each month on personal

living expenses, excluding amounts for the mortgage or utilities. She

stated that the parties had purchased the marital residence for $465,000,

including having made a 20% down payment thereon, and that they had

immediately begun renovations and had invested $100,000 into the

residence before she moved out. The wife testified that her medical issues

required her to find a job that was flexible to accommodate the treatment

she needed and to allow her to care for the child during her custodial

periods. She presented an exhibit reflecting that she has monthly

expenses in the amount of $14,000 and testified that she lacks sufficient

income to meet those expenses. There is no indication that the wife is

capable of earning wages that would allow her to attain or even approach

the standard of living that the parties enjoyed during the marriage.

38 CL-2025-0151 and CL-2025-0271

The husband points to the property settlement awarded to the wife

in support of his argument that the wife failed to show a need for alimony.

We note, however, that, even assuming that the monthly installments of

$40,248.86 would permit the wife to eventually obtain and maintain a

status similar to that of the parties during the marriage, the extended

period over which those payments will be made will not allow her to

regain that status immediately. Unlike the husband, who was awarded

two separate residential properties, the wife was not awarded a

residence. In order for the wife to obtain a residence similar to the

marital residence or the Santa Rosa beach house, the wife would be

required to use up to five months of her monthly property settlement

merely to approximate the amounts spent during the marriage on a down

payment for the marital residence and on the renovations that had been

performed on that residence at the time of trial. The wife cites Alaudhi

v. Davis, 406 So. 3d 860, 873 (Ala. Civ. App. 2024), in which this court,

quoting Kean v. Kean, 189 So. 3d 61, 67 (Ala. Civ. App. 2015),

acknowledged that we have "held that '[t]he wife should not be compelled

to consume the principal of her property-distribution award in order to

maintain the lifestyle to which she had become accustomed during the

39 CL-2025-0151 and CL-2025-0271

marriage.' " In light of the elevated standard of living that the parties

came to enjoy during the marriage, the wife's limitations on her ability

to earn, and the extended period over which the property settlement is to

be paid to the wife, we cannot conclude that the trial court erred in

determining that the wife has shown a need for rehabilitative alimony.

The husband also argues that the trial court disregarded the

monetary obligations it imposed on him in concluding that he has the

ability to pay alimony. He asserts that the recurring monetary

obligations imposed on him by the final judgment, including alimony,

child support, payments for the child's medical, dental, and other

expenses not covered by insurance, and the property-settlement

installments to the wife total at least $48,400.86 per month. To the

extent that the husband argues that those amounts exceed his income,

we have concluded both that the trial court could have determined that

the husband had ample income from which to make the payments

awarded to the wife and that the trial court was not limited to the

husband's monthly income as set out on his CS-41 income affidavit in its

consideration of his ability to pay the property settlement to the wife. For

40 CL-2025-0151 and CL-2025-0271

the reasons discussed above, we conclude that the trial court did not err

in concluding that the husband has the ability to pay alimony.

The husband next asserts that the trial court disregarded the

equities of the case in concluding that the wife is entitled to alimony. He

points to the factors to be considered in such an analysis outlined in § 30-

2-57(f), including the length of the marriage; the standard of living to

which the parties had become accustomed during the marriage; the

relative fault of the parties for the breakdown of the marriage; the age

and health of the parties; the future employment prospects of the parties;

the contribution of one party to the education or earning ability of the

other party; the extent to which one party reduced his or her income or

career opportunities for the benefit of the other party or the family;

excessive or abnormal expenditures and the destruction, concealment, or

fraudulent disposition of property; and any other factor the court deems

equitable under the circumstances of the case. In light of the

considerations discussed above, particularly with regard to the trial

court's findings related to the husband's having secreted assets from the

court, his heightened earning capacity, and the standard of living to

which the parties had become accustomed during the marriage, we

41 CL-2025-0151 and CL-2025-0271

cannot conclude that the trial court erred in concluding that the award

of rehabilitative alimony to the wife is equitable under the circumstances

presented.

Failure to Tax Costs

The husband last argues that the trial court erred in failing to tax

the costs of the appeal in Whatley against the wife. Rule 35(a), Ala. R.

App. P., provides, in pertinent part, that, "[e]xcept as otherwise provided

by law, … if a judgment is reversed, costs shall be taxed against the

appellee unless otherwise ordered...." As stated previously, in our

certificate of judgment in Whatley, this court directed that the costs of

the appeal were to be taxed against the appellee, i.e., the wife, in

accordance with Rule 35. The husband timely filed in the trial court a

request to tax the costs of producing the necessary copies of the clerk's

record and the reporter's transcript and filed an itemized and verified bill

of costs. See Rule 35(c). Those costs, along with this court's docket fee,

are all allowable costs pursuant to Rule 35. See Smith v. Player, 630 So.

2d 400, 401 (Ala. 1993). In Ex parte Blue Cross & Blue Shield of

Alabama, 473 So. 2d 1045, 1046 (Ala. 1985), our supreme court stated

that, "[u]nder Alabama law, if [an appellate] court reverses a trial court's

42 CL-2025-0151 and CL-2025-0271

judgment and awards costs to the appellant, the trial judge has no

discretion in awarding costs, but, rather, must grant the appellant those

costs of appeal that the appellant properly incurred."

The wife argues in her brief on appeal that the same arguments

raised in Whatley are back before this court in the present appeal; that

the reversal in Whatley was due to an inadvertent oversight by the trial

court; that she has demonstrated that the final judgment is due to be

affirmed; and that it would be inequitable and unjust for the wife to pay

for the prosecution of either appeal. Accordingly, she requests an award

of attorney's fees and the costs she has incurred in connection with the

entire appellate litigation, including the costs at issue in Whatley. We

consider the wife's request for attorney's fees below. Because the wife's

argument does not negate the error committed by the trial court in

denying the husband's motion to tax costs in accordance with this court's

certificate of judgment, we reverse the final judgment insofar as it failed

to tax those costs to the wife, see Wehle v. Bradley, 195 So. 3d 928, 947

(Ala. 2015), and we remand the case to the trial court with instructions

that it enter an order granting the husband's motion to tax the costs of

the appeal in Whatley against the wife.

43 CL-2025-0151 and CL-2025-0271

Appeal No. CL-2025-0151 -- The Modification Action

On February 22, 2024, the husband filed in the trial court a petition

to modify his monthly child-support obligation. The wife filed an answer

to the husband's petition, denying that the husband was entitled to the

requested relief. On June 26, 2024, a trial was conducted. On September

20, 2024, the trial court entered a judgment denying the husband's

petition; it found that the husband maintained the ability to pay the

monthly child support as previously ordered, that he "remains employed

and possesses substantially the same business interests that he

previously possessed at the time of the initial order of child support," and

that "[h]is employment and ability to earn income at the previous level

have not been impaired to a degree which merits a change or reduction

in child support." On October 18, 2024, the husband filed a motion to

alter, amend, or vacate the trial court's judgment; on January 15, 2025,

the trial court entered an order denying that motion. On February 25,

2025, the husband filed his notice of appeal to this court.

44 CL-2025-0151 and CL-2025-0271

Standard of Review

In Corbitt v. Corbitt, 369 So. 3d 1078, 1091 (Ala. Civ. App. 2022),

this court outlined the applicable standard of review:

" 'At the outset, we note that our standard of review in this case is very limited. Alimony, child support, and their subsequent modifications are matters that rest within the trial court's discretion, which will not be disturbed on appeal absent an abuse of discretion that is so unsupported by the evidence as to be plainly and palpably wrong. Brannon v. Brannon, 477 So. 2d 445 (Ala. Civ. App. 1985). A presumption of correctness attaches when the trial court receives ore tenus evidence, and, unless the evidence shows the trial court to be palpably wrong, we must affirm the judgment. Blankenship v. Blankenship, 534 So. 2d 320 (Ala. Civ. App. 1988).'

"Cooper v. Cooper, 550 So. 2d 439, 439-40 (Ala. Civ. App. 1989). A child-support modification is warranted when ' "a material change of circumstances that is substantial and continuing" ' is shown by the party seeking the modification. Dimoff v. Dimoff, 606 So. 2d 159, 161 (Ala. Civ. App. 1992)(quoting Moore v. Moore, 575 So. 2d 95, 96 (Ala. Civ. App. 1990)). Factors that indicate a change of circumstances include a material change in the needs, conditions, and circumstances of the children. Id."

Facts

The husband testified that, since the entry of the final judgment,

there had been a drastic decrease in the revenue of his companies and

that NG Whatley Trucking had lost its largest customer in August 2023.

45 CL-2025-0151 and CL-2025-0271

He presented exhibits indicating that, in 2022, NG Whatley Trucking had

earned revenue in the amount of $2,052,575; that, in 2023, it had earned

revenue totaling $1,616,451; and that, from January 1, 2024, through the

day before the June 26, 2024, trial date, it had earned total revenue in

the amount of $750,646, which, he said, put the company on pace to earn

approximately $1,500,000 in 2024. The husband attributed the

significant decrease to "the logistics market as a whole." The husband

testified that he had attempted to add other customers to mitigate the

loss of the company's largest customer, that he had gone to the secondary

market to find loads to cover the trucks, and that, in the secondary

market, the rates are lower and brokers receive a cut of the freight, but,

he said, he had immediately started earning revenue from other markets,

with which he had negotiated lower freight rates, when his largest

customer had withdrawn. According to the husband, although less

money was coming in, his expenses for insurance, fuel costs, and

expenses for parts had increased since 2023 and the company was having

to pay truck drivers more money to retain them as employees, although

he later stated that he had encouraged one employee to take a job

elsewhere. Additionally, he stated that he had "tried to pinch pennies

46 CL-2025-0151 and CL-2025-0271

here and there," that he had attempted to lease out some of the company's

equipment that was not being used, and that he had not filled spots when

employees left. The husband testified that he had "had to quit paying

[him]self," which he did in November 2023, and that he had had to cover

some of the maintenance and insurance costs on his credit card, which,

he said, he had paid off with money that he had brought in from BFS

Holdings, LLC. See note 1, supra. He testified that he was receiving

payments from BFS Logistics every two weeks and a salary from BFS

Logistics payroll every two weeks.

The husband stated that BFS Holdings was "hurting as well," that

the company had lost half a million dollars in 2024, had laid off

employees, had renegotiated rates with vendors, and had gone into

default of a loan from First Horizon Bank. He testified that all of his

businesses and business assets, including the holdings of Rose Holdings,

NG Whatley Trucking, and Whatley Leasing, LLC, which owns the

trucks and equipment that NG Whatley Trucking operates, serve as

collateral for BFS Holdings' loans from First Horizon Bank. Additionally,

he stated that he had signed a personal guaranty on the loan. According

to the husband, he does not receive direct income from Rose Holdings,

47 CL-2025-0151 and CL-2025-0271

which owns income-generating real estate, because the income received

by that business pays for other business expenses, including

maintenance, yard upkeep, pest service, and property taxes. The

husband testified that he had outstanding debts of over $50,000 for NG

Whatley Trucking and Whatley Leasing and that he had put as much as

possible on his credit card to repay those amounts. William Scott

Barranco, the chief financial officer of BFS Holdings, testified that the

current status of the trucking industry was "not good," that there had

been too much capacity in the marketplace, that rates and volume had

dropped, and that "[i]t's more or less a trucking recession." He stated

that BFS Holdings had cut payroll and had "laid off a couple of people,"

that the company was "on pace to lose probably $1 million" in 2024, and

that it was "[n]ot profitable."

The husband acknowledged that, as the sole owner of NG Whatley

Trucking, he determines what to pay himself. He admitted that, in

October 2023, he had paid $45,480.38 to join a new country club and that

he pays monthly dues to that country club in the amount of $1,073. He

also admitted that he had paid $57,487 to another country club since the

entry of the final judgment and that he is also a member of a third

48 CL-2025-0151 and CL-2025-0271

country club. The husband testified that he is a member of the country

clubs for networking purposes and to meet other businessmen to drum

up business for his company. The wife presented as an exhibit a Schedule

K-1 tax form for 2022 indicating that the husband had received net

income in the amount of $423,070 that year from Equity Pavilion, LLC,

and that Rose Holdings had received net income in the amount of

$231,930 from Equity Pavilion II, LLC. The husband testified, however,

that he had stopped receiving monthly income from Equity Pavilion at

the beginning of 2023 because it "sold." The wife also presented as an

exhibit account statements from River Bank for NG Whatley Trucking,

which indicate that BFS Carriers, LLC, pays to NG Whatley Trucking's

account multiple amounts for "payroll" and an additional $8,000 per

month for "BFS Carriers Corp Pay."

The husband denied that he receives distributions from BFS

Holdings or from BFS Carriers and testified that he had not filed

personal income-tax returns for the years 2022 or 2023. The husband

acknowledged that Sullivan has an authorized card on his American

Express credit-card account; when asked if she makes expenditures on

that card every month, he stated: "Possibly." He also testified that he

49 CL-2025-0151 and CL-2025-0271

pays the balance on that credit card every month "[f]or the most part."

The wife presented as an exhibit the husband's personal bank statements

from River Bank, which indicate that the husband had made payments

to American Express in January 2024 totaling $43,963.90 and payments

totaling $17,493.17 in March 2024. The husband testified that he pays

for the child's tuition and his child-support payments on his American

Express card and that there are a lot of business expenses included in

those amounts; the trial court noted that statements from that account

were not presented. The wife also presented as an exhibit statements

from CCB Bank for an account in the name of Rose Holdings, of which

the husband is the sole owner. The husband acknowledged that those

statements indicated the receipt of monthly rental income from JB Hunt

Transport in the amount of $5,525.17 and from Equity Student Troy,

LLC, in the amount of $833.33. He acknowledged that expenditures from

the CCB Bank account included payments to country clubs and to

Banana Republic, a retail clothing store, which expense he stated could

have "[p]ossibly" included clothing he had purchased for the child and for

his other child with Sullivan.

50 CL-2025-0151 and CL-2025-0271

Discussion

The husband argues that the trial court erred by failing to modify

his child-support obligation in accordance with Rule 32, Ala. R. Jud.

Admin. Rule 32(A)(3) addresses child-support modifications and

provides, in pertinent part:

"(b) A party seeking a modification of child support must plead and prove that there has occurred a material change in circumstances that is substantial and continuing since the last order of child support.

"(c) There shall be a rebuttable presumption that child support should be modified when the difference between the existing child-support order and the amount determined by application of these guidelines varies more than ten percent (10%), unless the variation is due to the fact that the existing child-support order resulted from a rebuttal of the guidelines and there has been no change in the circumstances that resulted in the rebuttal of the guidelines.

"(d) The existence of the guidelines or periodic changes to the guidelines in and of themselves do not constitute proof of a material change in circumstances that is substantial and continuing.

"(e) A trial court has discretion and authority to modify a child-support obligation even when there is not a ten percent (10%) variation between the current obligation and the guidelines when a petitioner has proven a material change in circumstances that is substantial and continuing. Likewise, a trial court has discretion to deny a modification even when the ten percent (10%) variation is present, based on a finding that the application of the guidelines in that case would be manifestly unjust or inequitable."

51 CL-2025-0151 and CL-2025-0271

The husband first argues on appeal that the trial court erred by

failing to apply the rebuttable presumption in favor of a modification

outlined in Rule 32(A)(3)(c) because, he says, the difference between his

child-support obligation at the time of the divorce trial and the new

recommended order exceeded 10%. He asserts that his existing child-

support obligation did not result from a rebuttal of the guidelines such

that he was required to show a change in the circumstances that had

resulted in that rebuttal because, according to Batain v. Batain, 912 So.

2d 283, 285 n.2 (Ala. Civ. App. 2005), and Floyd v. Abercrombie, 816 So.

3d 1051, 1057 (Ala. Civ. App. 2001), if the parties' combined adjusted

gross monthly income exceeds the uppermost limit of the guidelines, a

determination of child support is removed from and would not be

governed by the guidelines. The husband argues also that the trial court

erred by failing to determine that a significant decrease in his income

constitutes a material change in circumstances that warrants a

modification of his child-support obligation and that the trial court erred

in implicitly concluding that the husband is underemployed and by

failing to disclose the amount of income, if any, that it imputed to him.

52 CL-2025-0151 and CL-2025-0271

We note that the husband's arguments rely heavily on the evidence

presented by the husband in support of his assertion that, since the entry

of the final judgment, his income had decreased to such a degree that the

amount of child support determined by application of the guidelines

would require application of the rebuttable presumption in Rule

32(A)(3)(c). The trial court noted, however, at the hearing on the

husband's postjudgment motion, that it was not required to accept the

husband's assertions regarding his decreased income. The trial court is

correct that it " 'is not bound by the income figures advanced by the

parties, and it has discretion in determining a parent's gross income.' "

Walker v. Lanier, 221 So. 3d 470, 473 (Ala. Civ. App. 2016) (quoting

Morgan v. Morgan, 183 So. 3d 945, 961 (Ala. Civ. App. 2014)).

In cases in which a parent is self-employed, like the husband in this

case, Rule 32(B) defines income to include gross receipts minus ordinary

and necessary expenses for income from self-employment, rent, royalties,

proprietorship of business, or joint ownership of a partnership or closely

held corporation; it also includes expense reimbursements or in-kind

payments received by a parent in the course of self-employment or the

operation of a business that are significant and reduce personal-living

53 CL-2025-0151 and CL-2025-0271

expenses. Thus, the trial court was not limited to considering

representations by the husband regarding the amount of income he chose

to receive as a salary from his businesses. Rather, the trial court

concluded that the husband's business interests remained approximately

the same as they had at the time the final judgment was entered. That

determination is supported by the evidence presented. In addition to the

amounts the husband testified that he received from payroll and

distributions from BFS Logistics, the trial court was presented with

evidence of amounts received by NG Whatley Trucking and Rose

Holdings, both of which are solely owned by the husband, in addition to

amounts expended on behalf of the husband from the accounts for those

businesses. The trial court acknowledged the husband's testimony

indicating that NG Whatley Trucking was on schedule to approximate a

similar amount of revenue as it had earned in the previous year.

Although the husband testified that certain of his expenses for NG

Whatley Trucking had increased, there was also evidence indicating that

that company had lost employees and that the husband had made other

efforts to mitigate the loss in revenue. Based on the evidence presented,

we cannot conclude that the trial court erred in determining that the

54 CL-2025-0151 and CL-2025-0271

husband's business interests had not changed significantly since the

entry of the final judgment and that his self-employment income had not

decreased in an amount that requires the application of the rebuttable

presumption in Rule 32(A)(3)(c).

Although the husband acknowledged that NG Whatley Trucking

had lost its biggest customer around the time the final judgment was

entered and that much of the revenue earned by the company in 2023

had been from that customer, he also stated that he had immediately

made efforts to fill in the gaps resulting from that loss and had begun

collecting revenue from those efforts such that NG Whatley Trucking was

on pace to approximate the same amount of revenue in 2024. Moreover,

the husband testified that, after the loss of that customer, he had joined

another country club, in addition to the two of which he was already a

member, for the purpose of drumming up new business. Thus, the trial

court could have considered that evidence in concluding that the husband

had not shown that any change of circumstances was "substantial and

continuing." See Rule 32(A)(b) & (e), and Corbitt, supra.

The husband's argument that the trial court's finding that his

employment and ability to earn income at the previous level had not been

55 CL-2025-0151 and CL-2025-0271

impaired is tantamount to a finding that he is voluntarily underemployed

and requires reversal is similarly without merit. The husband cites in

support of his argument Kwasigroh v. Kwasigroh, 209 So. 3d 520, 527-28

(Ala. Civ. App. 2016), in which this court concluded that a finding that

the father in that case was voluntarily underemployed was supported by

the evidence but noted that there were no findings imputing income to

the father or specifying the amount of income that was imputed to him

to calculate child support pursuant to the guidelines based on that

amount of income in accordance with Rule 32(B)(5). Unlike in Kwasigroh

and other cases cited by the husband on appeal, however, the trial court

determined the husband's child-support obligation in the final judgment

based on its finding that the parties' income exceeded the uppermost

limits of the child-support guidelines. The trial court clarified at the

hearing on the husband's postjudgment motion in the modification action

that it had determined that the husband's income continued to exceed

the uppermost limits of the child-support guidelines. Thus, as argued by

the husband, a calculation of the amount owed pursuant to the guidelines

56 CL-2025-0151 and CL-2025-0271

is not required under the circumstances presented herein. 2 See Batain

and Floyd, supra. Accordingly, we decline to reverse the trial court's

judgment on that basis.

Conclusion

In appeal number CL-2025-0271, we reverse the final judgment

with regard to its failure to tax the costs of the appeal in Whatley against

the wife, and we remand the case for the entry of a judgment consistent

with this court's opinion on that issue. We affirm the final judgment in

all other respects. In appeal number CL-2025-0151, we affirm the trial

court's judgment in the modification in its entirety.

2We note that the most recent amendment to Rule 32 includes a

revised Schedule of Basic Child-Support Obligations that includes combined-adjusted-gross-income amounts ranging from $0 to $30,000 per month, but the version of Rule 32 in effect at the time of the entry of the final judgment addressed only combined-adjusted-gross-income amounts up to $20,000. See Committee Comments to Amendments to Rule 32 Effective May 1, 2022. As discussed earlier in this opinion, the trial court considered the parties' combined adjusted gross income at the time of the entry of the final judgment to have exceeded the uppermost limits of the guidelines, both as of the time of the entry of the divorce judgment and as amended. Thus, the trial court's conclusion that the husband continued to be capable of earning income at the previous level supports the trial court's statement at the postjudgment hearing that the parties' combined monthly income continued to exceed the uppermost limit of the guidelines at the time the judgment in the modification action was entered. 57 CL-2025-0151 and CL-2025-0271

The wife's request for an award of attorney's fees on appeal is

granted in part; the court awards the wife $10,000.

CL-2025-0151 -- AFFIRMED.

CL-2025-0271 -- AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED WITH INSTRUCTIONS.

Edwards, Hanson, Fridy, and Bowden, JJ., concur.