Rel: September 27, 2024
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 SPECIAL TERM, 2024 _________________________
CL-2023-0909 _________________________
Neal G. Whatley
v.
Allison H. Whatley
Appeal from Montgomery Circuit Court (DR-21-900613)
MOORE, Presiding Judge.
Neal G. Whatley ("the husband") appeals from a judgment entered
by the Montgomery Circuit Court ("the trial court") divorcing him from
Allison H. Whatley ("the wife"), dividing the marital property, and CL-2023-0909
awarding alimony to the wife. We reverse the trial court's judgment and
remand the case with instructions.
Procedural History
On October 27, 2021, the husband filed a complaint seeking a
divorce from the wife, which he amended on April 28, 2023. On
November 22, 2021, the wife filed an answer to the complaint, which she
amended on January 10, 2022. After a trial, the trial court entered a
judgment on August 28, 2023, divorcing the parties. The judgment,
among other things, awarded the wife "periodic alimony in the amount of
$3,500 per month for four years (48 months)" and, as part of its property
division, awarded the wife $2,414,932 payable in monthly installments
over 4 years.
On September 27, 2023, the husband filed a postjudgment motion
to alter, amend, or vacate the divorce judgment, challenging, among
other things, the alimony and property-division awards. Following a
hearing on the husband's postjudgment motion, the trial court entered
an order on December 18, 2023, that, among other things, amended the
divorce judgment to add certain findings of fact, to reduce the "periodic
alimony" to $3,500 per month for "three years (36 months)," and to make 2 CL-2023-0909
the $2,414,932 award payable in equal installments over 60 months. On
December 22, 2023, the husband filed his notice of appeal to this court.
Issues
The husband raises the following issues on appeal: (1) whether the
trial court erred in determining the valuation date for the marital estate;
(2) whether the trial court erred by relying on a certain exhibit to value
the marital estate; (3) whether the trial court's division and distribution
of the marital estate was inequitable; (4) whether the trial court erred in
awarding alimony to the wife; and (5) whether the trial court erred in
ordering the husband to pay for the fees of the wife's expert witness.
The husband failed to raise his fifth argument regarding the
payment of the wife's expert's fees before the trial court at any time.
Thus, that argument is waived, and we decline to consider the same for
the first time on appeal. See Andrews v. Merritt Oil Co., 612 So. 2d 409
(Ala. 1992).
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 3 CL-2023-0909
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
We first consider the husband's argument on appeal that the trial
court erred by awarding the wife "periodic alimony." Section 30-2-57,
Ala. Code 1975, provides, in pertinent part:
"(a) Upon granting a divorce or legal separation, the court shall award either rehabilitative or periodic alimony as provided in subsection (b), if the court expressly finds all of the following:
"(1) A party lacks a separate estate or his or her separate estate is insufficient 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. 4 CL-2023-0909
"(2) The other party has the ability to supply those means without undue economic hardship.
"(3) The circumstances of the case make it equitable.
"(b) If a party has met the requirements of subsection (a), the court shall award alimony in the following priority:
"(1) Unless the court expressly finds that rehabilitative alimony is not feasible, the court shall award rehabilitative alimony to the party for a limited duration, not to exceed five years, absent extraordinary circumstances, 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.
"(2) In cases in which the court expressly finds that rehabilitation is not feasible, a good- faith attempt at rehabilitation fails, or good-faith rehabilitation only enables the party to partially acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall award the party periodic installments of alimony for a duration and an amount to allow the party to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage as provided in subsection (g).
"....
"(g) Except upon a finding by the court that a deviation from the time limits of this section is equitably required, a person shall be eligible for periodic alimony for a period not to exceed the length of the marriage, as of the date of the filing 5 CL-2023-0909
of the complaint, with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility."
In his postjudgment motion, the husband argued that the trial
court should either eliminate the award of "periodic alimony" or reduce
the amount and duration of the award. He noted that the trial court had
failed to make the express findings in its judgment as required by § 30-
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Rel: September 27, 2024
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 SPECIAL TERM, 2024 _________________________
CL-2023-0909 _________________________
Neal G. Whatley
v.
Allison H. Whatley
Appeal from Montgomery Circuit Court (DR-21-900613)
MOORE, Presiding Judge.
Neal G. Whatley ("the husband") appeals from a judgment entered
by the Montgomery Circuit Court ("the trial court") divorcing him from
Allison H. Whatley ("the wife"), dividing the marital property, and CL-2023-0909
awarding alimony to the wife. We reverse the trial court's judgment and
remand the case with instructions.
Procedural History
On October 27, 2021, the husband filed a complaint seeking a
divorce from the wife, which he amended on April 28, 2023. On
November 22, 2021, the wife filed an answer to the complaint, which she
amended on January 10, 2022. After a trial, the trial court entered a
judgment on August 28, 2023, divorcing the parties. The judgment,
among other things, awarded the wife "periodic alimony in the amount of
$3,500 per month for four years (48 months)" and, as part of its property
division, awarded the wife $2,414,932 payable in monthly installments
over 4 years.
On September 27, 2023, the husband filed a postjudgment motion
to alter, amend, or vacate the divorce judgment, challenging, among
other things, the alimony and property-division awards. Following a
hearing on the husband's postjudgment motion, the trial court entered
an order on December 18, 2023, that, among other things, amended the
divorce judgment to add certain findings of fact, to reduce the "periodic
alimony" to $3,500 per month for "three years (36 months)," and to make 2 CL-2023-0909
the $2,414,932 award payable in equal installments over 60 months. On
December 22, 2023, the husband filed his notice of appeal to this court.
Issues
The husband raises the following issues on appeal: (1) whether the
trial court erred in determining the valuation date for the marital estate;
(2) whether the trial court erred by relying on a certain exhibit to value
the marital estate; (3) whether the trial court's division and distribution
of the marital estate was inequitable; (4) whether the trial court erred in
awarding alimony to the wife; and (5) whether the trial court erred in
ordering the husband to pay for the fees of the wife's expert witness.
The husband failed to raise his fifth argument regarding the
payment of the wife's expert's fees before the trial court at any time.
Thus, that argument is waived, and we decline to consider the same for
the first time on appeal. See Andrews v. Merritt Oil Co., 612 So. 2d 409
(Ala. 1992).
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 3 CL-2023-0909
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
We first consider the husband's argument on appeal that the trial
court erred by awarding the wife "periodic alimony." Section 30-2-57,
Ala. Code 1975, provides, in pertinent part:
"(a) Upon granting a divorce or legal separation, the court shall award either rehabilitative or periodic alimony as provided in subsection (b), if the court expressly finds all of the following:
"(1) A party lacks a separate estate or his or her separate estate is insufficient 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. 4 CL-2023-0909
"(2) The other party has the ability to supply those means without undue economic hardship.
"(3) The circumstances of the case make it equitable.
"(b) If a party has met the requirements of subsection (a), the court shall award alimony in the following priority:
"(1) Unless the court expressly finds that rehabilitative alimony is not feasible, the court shall award rehabilitative alimony to the party for a limited duration, not to exceed five years, absent extraordinary circumstances, 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.
"(2) In cases in which the court expressly finds that rehabilitation is not feasible, a good- faith attempt at rehabilitation fails, or good-faith rehabilitation only enables the party to partially acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall award the party periodic installments of alimony for a duration and an amount to allow the party to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage as provided in subsection (g).
"....
"(g) Except upon a finding by the court that a deviation from the time limits of this section is equitably required, a person shall be eligible for periodic alimony for a period not to exceed the length of the marriage, as of the date of the filing 5 CL-2023-0909
of the complaint, with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility."
In his postjudgment motion, the husband argued that the trial
court should either eliminate the award of "periodic alimony" or reduce
the amount and duration of the award. He noted that the trial court had
failed to make the express findings in its judgment as required by § 30-
2-57(a), and he argued that the wife had failed to present evidence in
support of each of those findings. In its order granting, in part, the
husband's postjudgment motion, the trial court made express findings
consistent with § 30-2-57(a) and reduced the duration of the award of
"periodic alimony" to 36 months, but it denied all other requested relief
regarding the award.
On appeal, the husband characterizes the award of "periodic
alimony" as "rehabilitative alimony," mainly because of its short duration
and because the trial court did not find that rehabilitative alimony was
not feasible, which is a requirement to award periodic alimony. See § 30-
2-57(b)(1), Ala. Code 1975. The husband requests that this court review
the propriety of the "rehabilitative alimony" award.
6 CL-2023-0909
In Merrick v. Merrick, 352 So. 3d 770 (Ala. Civ. App. 2021), this
court considered an award of alimony to the former wife, who had
requested rehabilitative alimony. 352 So. 3d at 775. This court noted
that the award was consistent with the normal time limitation on
rehabilitative alimony as outlined in § 30-2-57(b)(1), but the majority of
this court determined, nevertheless, that the award was ambiguous
because it purported to award to the former wife "periodic, rehabilitative
alimony." Id. The majority observed that the legislature had clearly
required that an alimony award be either rehabilitative alimony or
periodic alimony; that, to award either type of alimony, the trial court
was required to make certain express findings after considering various
factors related to the determination of those findings listed in § 30-2-
57(a); and that this court could not properly review the award in that
case without having the express findings before us as required by § 30-2-
57. Id. Accordingly, we reversed the judgment and remanded the case
with instructions that the trial court enter a new judgment in compliance
with § 30-2-57. Id.
In Lopez v. Rodriguez, 379 So. 3d 455, 461-62 (Ala. Civ. App. 2023),
like in Merrick, the award of alimony was for a period of 36 months, and 7 CL-2023-0909
the testimony presented by the former wife would have supported an
award of rehabilitative alimony. However, the trial court in that case
"couched its alimony award in terms of it being 'periodic alimony.' " 379
So. 3d at 461. Relying on Merrick, this court acknowledged the
legislature's direction that "a trial court must make express findings as
to the establishment of the basis for an alimony award and as to the
specific type of alimony that is awarded." Id. at 462. Like in Merrick,
because this court was unable to properly review the alimony award in
that case without having before us the express findings required by § 30-
2-57, we reversed the judgment and remanded the case for the trial court
to comply with § 30-2-57. Id. Similarly, in White v. Jones, [Ms. CL-2023-
0511, Feb. 16, 2024] ___ So. 3d ___ (Ala. Civ. App. 2024), this court
reversed an award of "periodic alimony" in the amount of $500 per month
for a period of 180 months because the trial court in that case had failed
to expressly find that rehabilitative alimony was not feasible, as required
by § 30-2-57(b).
In this case, we cannot agree with the husband that the award in
the present case is clearly rehabilitative alimony. Although the duration
of the award could be considered consistent with the period for an award 8 CL-2023-0909
of rehabilitative alimony as outlined in § 30-2-57(b)(1), it could also be
considered consistent with an award of periodic alimony limited to the
duration of the marriage. See § 30-2-57(g). Similarly, although the wife
requested rehabilitative alimony in her testimony, the trial court in the
present case couched its award as "periodic alimony." Complicating the
matter even further, the trial court did not make those findings required
by § 30-2-57(b) that would justify foregoing rehabilitative alimony and
awarding periodic alimony. Accordingly, we reverse the trial court's
judgment, and we remand the case for the trial court to enter a new
judgment clarifying its intention and, if that intention was to award
periodic alimony, to make the findings required by § 30-2-57(b). If upon
further consideration the trial court deems it necessary, the trial court
may reconsider the alimony award and the division of the marital
property.
Because we are reversing the judgment for clarification of the
alimony award, we pretermit consideration of those arguments raised by
the husband related to the property division because " '[t]he issues of
property division and alimony are interrelated, and they must be
9 CL-2023-0909
considered together on appeal.' " Lopez, 379 So. 3d at 462 (quoting
Turnbo v. Turnbo, 938 So. 2d 425, 430 (Ala. Civ. App. 2006).
REVERSED AND REMANDED WITH INSTRUCTIONS.
Edwards, Hanson, Fridy, and Lewis, JJ., concur.