author: MURDOCK, Judge.

text:
    Karen Burnett GILLIAM v. James Elmer GILLIAM III. James Elmer Gilliam III. v. Karen Burnett Gilliam.
    2011012.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2003.

      G. John Durward, Jr., of Durward & Cromer, Birmingham, for appellant/cross-appellee Karen Burnett Gilliam.
    John D. McCord of McCord & Martin, Gadsden, for appellee/cross-appellant James Elmer Gilliam III.
   MURDOCK, Judge.

On October 24, 2000, Karen Burnett Gilliam, the mother, and James Elmer Gilliam III, the father, were divorced by a judgment of the Etowah Circuit Court based on incompatibility of temperament. The divorce judgment incorporated an agreement of the parties in which the parties agreed, among other things, to joint custody of the only child born of the marriage. At the time of the parties’ divorce, the parties’ daughter was seven years old. Regarding the joint-custody arrangement, the divorce judgment states:

“2. The [father] and [the mother] shall have the joint equally shared care, custody, and control of the minor child of the marriage, [a daughter], born March 19,1993. Joint and shared custody shall mean that each parent shall participate equally in every aspect of the [daughter’s] life; that both parties will have equal say, rights and input in the [daughter’s] life; that each parent will keep the other informed as to all functions and activities in the [daughter’s] life; and that the parents will agree to coordinate and work together to raise the [daughter] in loving homes. One parent may help the other parent with the [daughter] even if the [daughter] is not then in the physical custody of that parent, if the other parent is busy and cannot look after the [daughter] for some reason, that is, to take or pick up the [daughter] from school or functions, various appointments, etc. Cooperating and working with the other parent to raise the [daughter] will not be interpreted as a lack of responsibility or neglect on the part of the other parent, but will be considered working together.
“The physical custody of the [daughter] will be shared equally by the [father] and [the mother] on the following basis:
“a. The [father] and [the mother] will share physical custody of the [daughter]. The [father] will have the [daughter] from Sunday midday until Thursday afternoon during school. During the Summer the [father] will have the [daughter] from Sunday midday until Thursday morning. The mother will have the [daughter] beginning on Thursday afternoon until Sunday midday during school. During the Summer the [mother] will have the [daughter] from Thursday morning until Sunday midday. The arrangement will be adjusted periodically as dictated by the work schedule of the parents and the special circumstances of the [daughter],
“b. The [father] and the [mother] will alternate or share all holidays and birthdays fairly and equally. The [daughter] will spend Christmas Eve with the father and Christmas Day with the mother. The Christmas break from school will be shared equally.
“c. The [father] and the [mother] will share Spring Break from school equally.
“d. The [mother] shall have the [daughter] every Mother’s Day and the father shall have the [daughter] every Father’s Day.
“e. The [father] and [the mother] will each get the [daughter] two nonconsecutive weeks each Summer for vacation.”

On November 20, 2000, the parties filed a joint motion to alter or amend the divorce judgment, requesting that the court amend certain provisions in the judgment (namely, provisions regarding the property division and the daughter’s educational expenses) not relevant to the present appeal. On November 21, 2000, the trial court granted the parties’ joint motion and entered a judgment accordingly.

Pursuant to the property division in the divorce judgment, the father was awarded the marital home in Rainbow City and the mother was awarded a house in Ashville. The mother remained in the marital home until shortly after Christmas of 2000, at which time the mother moved into the Ashville house.

On August 29, 2001, the father filed a petition to modify the divorce judgment, seeking “full care, custody and control” of the daughter, or, alternatively, primary physical custody of the daughter. On September 13, 2001, the father filed an “Emergency Amendment to Petition for Modification; Motion for Ex Parte Change of Visitation Exchange Location,” requesting that the court, among other things, order the parties to exchange the daughter in a public place. The father alleged, among other things, that, because a conflict existed between the father and the daughter’s maternal grandparents, the father no longer felt comfortable exchanging the daughter at the grandparents’ house. (The record reveals that, following the parties’ divorce, the mother and the daughter had been spending weekends at the grandparents’ Ashville home and that the father had been picking up the daughter at the grandparents’ home on Sundays.) On September 13, 2001 (the same date the father filed the emergency amendment to his petition to modify the divorce judgment), the court entered an order requiring the parties to exchange the daughter “at the fountain inside the Gadsden Mall, in the event the visitation exchanges are not to take place at school.” The order also restrained “all parties participating in the visitation exchange and all parties present at the visitation exchange ... from harassing, annoying, alarming, fighting or otherwise arguing with one another in the presence of the [daughter] about the opposing party.”

On September 18, 2001, the mother answered the petition to modify and counterclaimed, seeking, among other things, primary physical custody of the daughter. On that same date, the mother filed a petition for a temporary restraining order, alleging, among other things, that the father had been “harassing the [mother] on a regular basis via telephone on her wireless phone and at her place of employment.” The mother sought a restraining order to prevent the father from telephoning her on her wireless telephone or at her place of employment unless there was a specific emergency concerning the daughter. The mother also sought to restrain the father from coming to the mother’s residence unless specifically requested by the mother.

On October 10, 2001, the court entered an order restraining the parties from “harassing, molesting, or otherwise contacting the other party for any reason.” In that same order, the court appointed Dr. David Wilson, Ph.D., of Gadsden Psychological Services, to interview the daughter, the mother, and the father “for purposes of giving testimony to this Court regarding the best interests of the [daughter].”

The trial court held ore tenus proceedings on February 8, 2002, and March 18, 2002. On March 27, 2002, the father filed a “Notice To Court,” alleging, among other things, that because the father had the daughter four nights a week and the mother had the daughter three nights a week, the court should apply the “Ex parte McLendon [, 455 So.2d 868 (Ala.1984),] custody standard of materially promoting the best interest of the minor child of the parties, rather than the Ex parte Couch[, 521 So.2d 987 (Ala.1988),] best interest standard” to the mother’s request to modify custody of the daughter. On that same date, the father filed a “Motion to Impute Minimum Wage to the [Mother]; Child Support Calculations,” requesting that the court impute an annual income of $40,000 to the mother in computing the mother’s child-support obligation under Rule 82, Ala. R. Jud. Admin.

On April 2, 2002, the mother filed an “[A]nswer to [the Father’s] Notice To Court,” alleging, among other things, that the court should utilize the “best interests of the child” standard in determining custody of the daughter. The mother also requested that the court grant her “full care, custody, and control” of the daughter. On that same date, the mother filed a “[R]esponse to the [Father’s] Motion to Impute Minimum Wage to the [Mother],” once again requesting that the court grant her “full care, custody, and control” of the daughter.

On April 12, 2002, the trial court entered a judgment that, among other things, granted the parties continued joint legal custody of the daughter and awarded the father primary physical custody. The court granted the mother specified visitation rights:

“3. For the months beginning August, 2002 through May of 2003 and each year thereafter, the mother will have visitation with [the daughter] every other weekend, from 5:00 p.m. on Friday until 5:00 p.m. on Sunday....
“5. For the months of June and July of 2002 and each and every year thereafter, the [mother’s] visitation will be from the 1st Friday in June at 5:00 p.m. until Sunday at 5:00 p.m. sixteen (16) days later (except when Father’s Day falls on the 2nd Sunday, the [mother’s] visitation will end at 9:00 a.m. on Father’s Day) and from the 2nd Friday in July at 5:00 p.m. until Sunday at 5:00 p.m. sixteen (16) days later. It is the intention of this Court that the [father] shall be allowed to have the [daughter] with him on Father’s Day of each and every year. These visitations periods in June and July will be the only visitation the [mother] will have with the [daughter] during those two (2) months of each and every year.”

The trial court also granted the mother visitation during the Christmas holidays, on alternating spring school holidays, on Mother’s Day, and for a minimum of three hours on the daughter’s birthday. The trial court ordered that, for purposes of visitation, the parties were to continue to exchange the daughter at the Gadsden Mall.

Regarding child support, the trial court found:

“2. [The father’s] request to impute minimum wage or an income of $40,000 per year to the [mother] is DENIED. The Court finds the [mother] is unemployed and has been since October, 2001. The Court is not going to order child support at this time. The [mother] is ORDERED to submit an updated child support income affidavit to opposing counsel immediately after [the mother] has been employed for thirty (30) days and, at that time, the Court will compute child support per the Guidelines.”

(Capitalization and emphasis original.)

The mother filed a motion to alter, amend, or vacate the judgment, seeking reconsideration of the trial court’s failure to grant her primary physical custody of the daughter. The father also filed a motion to alter, amend, or vacate the judgment, seeking a “date certain” for the mother’s child-support payments to begin. The trial court held a hearing on the post-judgment motions; no additional evidence was submitted at the hearing. At the hearing, in addition to the mother’s request for primary physical custody, the mother alternatively requested additional visitation. Both postjudgment motions were denied. The mother appeals, and the father cross-appeals.

The Mother’s Appeal

“When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore tenus, we presume the trial court’s decision is correct: ‘ “A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....” ’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981). In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).”

Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

Where there has been no prior custody determination and neither parent has voluntarily relinquished custody of the child, the “best interests” of the child is controlling; the parties stand on “equal footing” and no presumption inures to the benefit of either parent. Durham v. Sisk, 628 So.2d 873, 874 (Ala.Civ.App.1993) (citing Hall v. Hall, 571 So.2d 1176 (Ala.Civ.App.1990)). “ ‘ “The trial court’s overriding consideration is the children’s best interests and welfare.” ’ ” Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998) (quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)).

In considering the best interests and welfare of the child, the court must consider the individual facts of each case:

“The sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.”

Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981).

The mother contends that the trial court erred in granting the father primary physical custody of the daughter because, she says, the evidence does not support a modification of the parties’ joint custody of the daughter. In support of her argument, the mother urges this court to adopt the reasoning of Judge Yates’s dissenting opinion in Durham, 628 So.2d 873. In Durham, the parties were divorced in April 1991; pursuant to a separation agreement that was incorporated into the divorce judgment, the parties entered into a joint custody arrangement regarding their two minor children. Id. at 874. In November 1991, the mother filed a “petition to modify” custody, alleging a material and substantial change in circumstances and requesting primary custody of the parties’ minor children. Id. The father answered and counterclaimed, also requesting custody of the minor children. Id. After ore tenus proceedings, the trial court awarded the mother primary custody of the children, and the father appealed. Id. This court affirmed the trial court’s judgment. Id. Judge Yates stated in her dissenting opinion that she would “reverse the trial court in this instance, reinstating the agreement of the parties incorporated into the final decree of divorce, just seven months prior to the mother’s petition to modify,” because, she reasoned, “the particular facts in [that] case [did] not reveal an ‘unworkable’ situation.” Id. at 876 (Yates, J., dissenting). The majority of this court in Durham, however, stated:

“The consequences of delaying the opportunity for correction of child custody problems could include preventable damage to a child’s well-being, physically, emotionally, or otherwise. As such, we determine that it would be a grave injustice to allow the consideration of custody petitions only after the passage of a time certain....
“... While the parties may have originally believed that the joint custody arrangement would be in the best interests of the children, upon proper petition, the trial court determined otherwise.”

Durham, 628 So.2d at 875-76.

The facts in Durham are distinguishable from the facts of case before us. In the present case, both parents testified that the joint-custody arrangement was no longer feasible. The record reveals that the parents had experienced a complete breakdown in their ability to communicate and to get along with one another. The parents were unable to agree on such matters as who should be the daughter’s pediatrician, where the daughter should attend church, and what extracurricular activities the daughter should participate in.

Regarding the joint-custody arrangement, the mother testified on cross-examination:

“Q. [The daughter] needs to be with one parent the majority of the time, isn’t that true?
“A. I feel so now.
“Q. And you think that should be you?
“A. Yes, Ido.
“Q. Well, you agree with me that joint custody is not feasible in this case, is it?
“A. True.
“Q. Because it would take y’all getting along in order to have a joint custody order?
“A. Yes.
“Q. And that this Judge is going to have to put someone in charge of this child; is that true?
“A. Yes. Yes.”

Thus, the trial court was required to make a custody determination.

The record indicates that both parents are fit to have custody of the daughter and that both parents have demonstrated that they would be willing and able to care for the daughter’s needs. The record reveals that the father and the daughter, both being “outdoor people,” have a close relationship and have a lot of shared interests. Dr. Wilson, the court-appointed psychologist, stated in his report that was admitted into evidence and during his testimony at trial that the father and the daughter would benefit from spending more time together. We note that the father’s job as an aircraft mechanic has flexible work hours and allows him to perform some of his job duties at home. This court cannot say, given the totality of the evidence presented in the record, that the trial court abused its discretion in determining that the best interests of the daughter would be served by awarding primary physical custody of the daughter to the father or that the trial court’s award of primary physical custody to the father was unsupported by the evidence so as to be plainly and palpably wrong. Ex parte Farm, 810 So.2d at 632.

Next, the mother contends that the trial court erred in determining her visitation rights. “The determination of proper visitation ... is within the sound discretion of the trial court, and that court’s determination should not be reversed by an appellate court absent a showing of an abuse of discretion.” Ex parte Bland, 796 So.2d 340, 343 (Ala.2000). “The primary consideration in setting visitation rights is the best interest of the child. Each child visitation case must be decided on its own facts and circumstances.” DuBois v. DuBois, 714 So.2d 308, 309 (Ala.Civ.App.1998) (citation omitted).

The mother contends that the visitation schedule is contradictory to Dr. Wilson’s testimony because, she claims, Dr. Wilson testified that “it is in the daughter’s best interests to have contact with both parents on the weekend and during the week.” The mother relies on the following excerpt from Dr. Wilson’s testimony on cross-examination in support of her contention:

“Q. And I’m looking on page four, and the summary that you list out, you state that it does appear that it would be in the child’s best interests for her to be able to spend more time with the father, and this will be time when they can engage in shared interests that they have.
“You certainly did not put in there — I didn’t see anywhere in your assessment that you said that [the father] should have custody versus [the mother] having custody.
“A. That’s — That’s the ultimate issue that the Court decides.
“Q. I understand. But you talked about spending more time with the father because of their shared interests?
“A. That’s correct.
“Q. And having off time and off-vacation time or time on weekends when they would have time together, correct?
“A. Yeah. The weekend time. That’s not to say they shouldn’t have time during the week. [The daughter] also is positive about that. Positive about his involvement at school. Positive about him doing things with her during the week.
“Q. And, of course, [the mother’s] very active in the [daughter’s] — with school during the week also, isn’t she?
“A. Yes. Certainly seemed to be.
“Q. So, would it be fair, then, to say also that [the mother] should have time with the [daughter] during the week, during the school time?
“A. That’s — Seemed to be positive for [the mother] and the [daughter.]”

After reviewing Dr. Wilson’s testimony, we conclude that the mother misrepresented Dr. Wilson’s testimony to some extent — clearly his testimony did not explicitly recommend that it would be in the daughter’s best interests for the trial court to grant the mother visitation during the week.

We also note that the mother fails to point out that neither parent wanted the other parent to be granted visitation during the week if he or she was granted primary physical custody of the daughter. Given the totality of the evidence presented, we conclude that the trial court did not abuse its discretion by failing to award the mother more visitation during the week. Ex parte Bland, 796 So.2d at 343.

The mother also contends that the June visitation schedule is self-contradictory. The mother claims that the language used in the judgment effectively cuts her June visitation period short by seven days in the years 2002 and 2003 because, she says, the judgment essentially states that her visitation period ends at 9:00 a.m. on Father’s Day during the years in which Father’s Day falls on the “2nd Sunday.”

The relevant portion of the judgment states:

“5. For the months of June ... of 2002 and each and every year thereafter, the [mother’s] visitation will be from the 1st Friday in June at 5:00 p.m. until Sunday at 5:00 p.m. sixteen (16) days later (except when Father’s Day falls on the 2nd Sunday, the [mother’s] visitation will end at 9:00 a.m. on Father’s Day).... It is the intention of this Court that the [father] shall be allowed to have the [daughter] with him on Father’s Day of each and every year.”

It appears to us that the phrase “2nd Sunday” refers to the second Sunday of the mother’s June visitation period and not to the second Sunday in June. Father’s Day never falls on the second Sunday in June; rather, it always falls on the third Sunday in June. Father’s Day is defined as “the third Sunday in June appointed for the honoring of fathers.” Merriam-Webster’s Collegiate Dictionary, 456 (11th ed.2003). Based on our calculations, Father’s Day will fall on the second Sunday of the mother’s June visitation period for two consecutive years out of every seven years, effectively cutting the mother’s visitation period short by one week in those two years.

We also note that the trial court’s judgment is clear that the father is to have visitation with the daughter on Father’s Day and that the mother is to have visitation with the daughter on Mother’s Day. Regarding Mother’s Day, the trial court’s judgment states:

“6. If Mother’s Day falls on the weekend the [father] is due to have the [daughter] with him, the [mother] shall have visitation with the [daughter] from 9:00 a.m. to 5:00 p.m. on Mother’s Day in addition to her regular every other weekend visitation. It is the intention of this court that the mother shall have the daughter on Mother’s Day of each and every year.”

However, the June visitation schedule does not contain similar language to ensure that the daughter spends Father’s Day with the father. Based on our calculations, out of every seven years, Father’s Day will fall on the second Sunday of the mother’s June visitation period for two consecutive years and on the third Sunday of the visitation period for five consecutive years. We therefore conclude that the trial court’s June visitation schedule is inconsistent; we reverse that portion of the trial court’s judgment, and remand the cause for the trial court to reconcile those inconsistencies so that the visitation awarded is consistent with this opinion and with the trial court’s intention of granting the mother approximately 16 days of visitation during June each year and with its stated intent that the daughter spend Father’s Day with the father.

The Father’s Cross-Appeal

The father contends that the trial court erred in failing to order the mother to begin paying child support by a “date certain.” The father argues that, pursuant to Rule 32(B)(5), Ala. R. Jud. Admin., the trial court is required to impute income to a parent and to compute his or her child-support obligation based on that parent’s potential income if the trial court finds that the parent is “voluntarily unemployed or underemployed.”

“The award of child support is a matter vested within the sound discretion of the trial court. When evidence regarding this issue is presented ore tenus, the trial court’s judgment is presumed correct, and we will not reverse it on appeal unless it is plainly and palpably wrong or unjust.”

State ex rel. Dunnavant v. Dunnavant, 676 So.2d 1329, 1331 (Ala.Civ.App.1996) (citation omitted). Furthermore, the determination of whether a parent is voluntarily underemployed or unemployed is discretionary with the trial court. Id. (citing Griggs v. Griggs, 638 So.2d 916 (Ala.Civ.App.1994)).

In the present case, the trial court did not find that the mother was “voluntarily” unemployed or underemployed; rather, it found that the mother had been “unemployed since October 2001” and the court did “not ... order child support at this time.” (Emphasis in the original.) The record reflects that the mother had been a stay-at-home mother until April 2000, approximately four months before the father filed for a divorce. The record further reflects that the mother was unemployed because of the cutbacks relating to the September 11, 2001, terrorist attacks and that she was actively seeking work in the field of commercial interior design, aspiring to earn $40,000 annually. Because the record supports a finding that the mother was not voluntarily unemployed or underemployed, the trial court was not required to impute income to the mother under Rule 32(B)(5). See Dunnavant, 676 So.2d at 1331 (“To impute income to the father [in that case] would require a finding that he was voluntarily underemployed, a finding that the trial court did not make and that the evidence did not support.”).

Conclusion

That portion of the trial court’s judgment regarding the June visitation schedule is reversed, and the cause is remanded for the trial court to reconcile the inconsistencies regarding the June visitation consistent with this opinion and with the trial court’s intent of granting the mother approximately 16 days of visitation during June and with its stated intent that the daughter spend Father’s Day with the father. The remainder of the trial court’s judgment is due to be affirmed.

The requests of the mother and the father for an award of an attorney fee on appeal are denied.

APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CROSS-APPEAL — AFFIRMED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

YATES, P.J., concurs in the result.

      . On September 11, 2001, two airplanes were hijacked by terrorists and flown into the World Trade Center in New York City; another airplane was hijacked and flown into the Pentagon building in Washington, D.C.; and a fourth hijacked airplane crashed into a field in Pennsylvania.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Richard WINECOFF and Sandy Winecoff v. COMPASS BANK.
    2020636.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2003.

      J. Wilson Mitchell of Mitchell, Bernauer & Winborn, Florence, for appellants.
    J. Michael Tanner of Ashe, Tanner & Wright, P.C., Tuscumbia, for appellee.
   THOMPSON, Judge.

This is the second appeal involving this matter. In considering the first appeal, this court set forth the procedural history and facts of the case as follows:

“Richard Winecoff and Sandy Wine-coff sued Compass Bank. Compass Bank answered and counterclaimed. Compass Bank moved for a summary judgment on the Winecoffs’ claims against it. The Winecoffs opposed that motion. On June 20, 2002, the trial court entered a summary judgment on the Winecoffs’ claims. In its June 20, 2002, order, the trial court noted that Compass Bank’s counterclaim against the Winecoffs was still pending, and it purported to certify, pursuant to Rule 54(b), Ala. R. Civ. P., the order as final. The Winecoffs appealed.
“The record indicates that the Wine-coffs had a joint checking account at Compass Bank. On May 1, 2001, Sandy Winecoff redeemed two United States Savings Bonds at Compass Bank. Compass Bank later determined that it had paid Sandy Winecoff $2,425.60 in excess of the amount actually due on those savings bonds. Therefore, Compass Bank ‘set off,’ or deducted, $1,272.59 from the Winecoffs’ joint checking account as a partial repayment of the amount it had allegedly overpaid. Compass Bank contended that the terms of the account agreement between it and the Winecoffs allowed it to effect that setoff. The Winecoffs argued that the setoff was not authorized by the account agreement or by applicable caselaw. The Winecoffs claimed that the allegedly improper setoff caused checks written on their joint checking account, which they believed had funds sufficient to cover those checks, to be returned to Compass Bank for insufficient funds.
“In their complaint against Compass Bank, the Winecoffs alleged conversion, breach of contract, breach of fiduciary duty, defamation, suppression, negligence and wantonness, wrongful seizure of funds, and the tort of outrage. The Winecoffs’ claims were based on their allegation that they had been injured by Compass Bank’s allegedly improper set-off of the $1,272.59 from their joint checking account. In its counterclaim, Compass Bank sought to recover the remaining $1,153.01 it claimed it had overpaid Sandy Winecoff when she redeemed the savings bonds.
“In its motion for a summary judgment on the Winecoffs’ claims, Compass Bank argued only that it had the authority, under both its agreement with the Winecoffs and applicable caselaw, to set off the Winecoffs’ joint account for the amount it claimed it had overpaid with regard to the savings bonds. The Wine-coffs opposed that motion, arguing a lack of mutuality in their joint-checking-account agreement with Compass Bank.”

Winecoff v. Compass Bank, 854 So.2d 611, 612-13 (Ala.Civ.App.2003) (“Winecoff I”).

In Winecoff I, this court held that the trial court’s certification of its June 20, 2002, summary-judgment order as final pursuant to Rule 54(b), Ala. R. Civ. P., was not effective. This court based its holding on its conclusion that the Winecoffs’ claims and Compass Bank’s counterclaim were so intertwined as to make a Rule 54(b) certification inappropriate because of the risk of inconsistent results. Winecoff I, 854 So.2d at 614 (citing Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987), and Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88 (Ala.2002)). Therefore, this court dismissed the appeal as taken from a nonfinal judgment. Winecoff I, 854 So.2d at 614.

On January 17, 2003, after this court’s dismissal of the appeal in Winecoff I, Compass Bank moved the trial court for a summary judgment on its counterclaim against the Winecoffs. The Winecoffs did not oppose the January 17, 2003, motion for a summary judgment. On March 11, 2003, the trial court entered a summary judgment in favor of Compass Bank on its counterclaim against the Winecoffs. In the March 11, 2003, judgment, the trial court also noted that because it had previously entered a partial summary judgment in favor of Compass Bank on the Wine-coffs’ claims, the judgment disposed of all pending claims between the parties, and, therefore, it constituted a final judgment. The Winecoffs appeal, arguing only that the trial court erred in entering a summary judgment in favor of Compass Bank on their claims against Compass Bank; the Winecoffs make no argument pertaining to the summary judgment entered in favor of Compass Bank on its counterclaim against them.

A motion for a summary judgment is properly granted where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. In reviewing a summary judgment, this court applies the same standard as the trial court. All evidence must be viewed in a light most favorable to the nonmoving party, and all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved in favor of the non-movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). After the moving party makes its prima facie showing, the burden shifts to the nonmoving party to demonstrate the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). The nonmoving party is required to present “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

In considering the current appeal, this court, ex mero motu, incorporated the record from the appeal in Winecoff I. In addition to the facts and history discussed above, the record also indicates the following relevant facts. The Winecoffs opened a “multiple-party account with right of sur-worship” at Compass Bank. Both of the Winecoffs signed the account agreement, which, among other things, indicated their acknowledgment that they had received a copy of the “Disclosure for Deposit Accounts” (“the disclosure document”). Among other things, the disclosure document contains a provision stating:

“10. Setoff
“You acknowledge that, except as otherwise prohibited by law, we have the right to set off against your account any indebtedness or other obligations which you owe us, at any time, without any further notice to or demand on you, whether the indebtedness or other obligations are now existing or hereafter arise. The indebtedness includes, without limitation, all charges and overdrafts incurred on any account you hold with us. You agree that we may set off against the account any claim which we have against you without regard to the source or ownership of the funds on deposit in the account and without [the] requirement that the claim be owed to us by all of the account owners rather than only some of them."

(Emphasis added.)

The Winecoffs have not contended that Compass Bank was not due a setoff because it paid Sandy Winecoff the correct amount for the savings bonds. Additionally, the Winecoffs have not challenged the trial court’s determination that Compass Bank was entitled to recover on its claim seeking payment for that part of the amount it overpaid Sandy Winecoff that was not offset against the Winecoffs’ bank account. The Winecoffs have also not disputed the amount of damages awarded by the trial court, which equaled the amount of the overpayment that was not recovered from the Winecoffs’ bank account.

We interpret the Winecoffs’ arguments on appeal to be that the setoff provision was unconscionable and that Compass Bank could not validly deduct the overpayment from their account because of an alleged lack of mutuality of obligation between the parties.

As to the argument that the setoff provision contained in the disclosure document was unconscionable, we note that our supreme court has affirmed a summary judgment in favor of a bank on a plaintiffs claim that the bank’s assessment of a $15 service charge on checks returned for insufficient funds was unconscionable. Sanders v. Colonial Bank of Alabama, 551 So.2d 1045 (Ala.1989). In so holding, our supreme court cited with approval a number of cases holding that the doctrine of unconscionability is available only as a defense and not as a method of obtaining affirmative relief. See Sanders, 551 So.2d at 1045-46.

Sanders and the cases cited therein, however, “concerned the application of the Uniform Commercial Code unconscion-ability provision, adopted in Alabama as Ala.Code 1975, § 7-2-302.” Williams v. E.F. Hutton Mortgage Corp., 555 So.2d 158, 161 (Ala.1989). This case involves a consumer-finance transaction that falls under Title 5 of the Alabama Code, which governs banks and financial institutions. Section 5-19-16, Ala.Code 1975, a part of the article in Title 5 that governs consumer-finance transactions, applies to the facts of this case. As our supreme court has stated, § 5-19-16 provides a statutory defense of unconscionability in certain contract actions. AmSouth Bank v. Dees, 847 So.2d 923 (Ala.2002).

In Williams v. E.F. Hutton Mortgage Corp., supra, our supreme court cited Sanders with approval in holding that the doctrine of unconscionability did not provide affirmative relief under the language of § 5-19-16. In so holding, the court stated:

“The operative language in [§ 7-2-302, which the holding in Sanders v. Colonial Bank of Alabama, 551 So.2d 1045 (Ala.1989), addressed] is almost identical to the operative language in § 5-19-16. Both of those sections allow the court to refuse to enforce an agreement, to enforce the agreement without the unconscionable provision, or to modify the provision to avoid an unconscionable result. Each of those remedies obviously contemplates a continuing agreement or an attempt to enforce the agreement. One treatise on the U.C.C. recites the background of those provisions as follows: ‘When the equity courts found contracts to be unconscionable, they refused specific enforcement, or granted rescission. Affirmative recovery in damages was not given. The remedial tools available to a modern court under section 2-302 are of a similarly equitable nature.’ 1 J. White & R. Summers, Uniform Commercial Code § 4-8 (3d ed.1988) (footnotes omitted).”

Williams v. E.F. Hutton Mortgage Corp., 555 So.2d at 161-62. Based on the above-quoted analysis, the court concluded that § 5-19-16 did not provide a cause of action providing affirmative relief to a plaintiff. Williams v. E.F. Hutton Mortgage Corp., 555 So.2d at 162.

In this case, the Wineeoffs attempted to obtain affirmative relief, specifically, an award of damages, based on their claim that the setoff provision of the disclosure agreement was unconscionable. The precedent of Williams v. E.F. Hutton Mortgage Corp., supra, does not allow parties to use the theory of unconscionability as a basis for seeking affirmative relief. Given the foregoing, we cannot say that the Wi-necoffs have demonstrated that the trial court erred, based on the theory of the unconscionability of the setoff provision contained in the disclosure document, in entering a summary judgment in favor of Compass Bank on their claims against Compass Bank.

The Wineeoffs also argue that the trial court erred in entering a summary judgment in favor of Compass Bank on their claims because, they maintain, there was no mutuality of obligation between the parties. The Winecoffs maintain that, in the absence of the element of mutuality, Compass Bank had no authority to set off their account by the amount of the overpayment on the savings bonds. The Winecoffs cite Atkinson v. Federal Deposit Ins. Corp., 635 F.2d 508, 511 (5th Cir.1981), as authority for the proposition that generally, “in order for a setoff to be valid, the cross-demands between the bank and the depositor or depositors must be ‘mutual.’ ” Other cases have expressed the same proposition by stating that in order for the element of mutuality to be present to entitle a party to a setoff, “the cross-demands must be mutual; that is, due from one party to another in the same right.” King v. Porter, 230 Ala. 112, 116, 160 So. 101, 104 (1935); First Nat’l Bank of Abbeville v. Capps, 208 Ala. 207, 94 So. 109 (1922). See also 10 Am.Jur.2d Banks and Financial Institutions § 865 (1997). For example, in First National Bank of Abbeville v. Capps, supra, our supreme court explained that a setoff of an individual partner’s indebtedness is not allowed against the account of the partnership because of a lack of mutuality.

Thus, it appears that the Winecoffs argue that there is a lack of mutuality in the present case because the amount owed by Sandy Winecoff was offset against the joint account owned by both Sandy Wine-coff and Richard Winecoff. They assert the amount owed to Compass Bank for its overpayment on the savings bonds is a debt owed solely by Sandy Winecoff and that the overpayment may not be properly offset against an account held in the names of both of the Winecoffs. We note that Compass Bank does not allege that its overpayment on the savings bonds was a joint debt owed by both of the Winecoffs. Further, it is unclear from the record the name or names in which the savings bonds at issue were held; however, it is clear that Sandy Winecoff, but not Richard Wi-necoff, cashed those bonds.

In Atkinson v. Federal Deposit Insurance Corp., supra, a bank sought to offset indebtedness owed to it by a husband against the funds represented by a certificate of deposit held jointly by the husband and his wife. The trial court allowed the setoff, but the Fifth Circuit Court of Appeals reversed. In reversing, the court noted that only one of the codepositors of the certificate of deposit owed the bank certain sums, and that the “certificate of deposit ... did not specify the separate interests of the co-depositors or authorize the bank to apply the deposit to the debt of only one of the co-depositors.” Atkinson, 635 F.2d at 512. The court concluded that the element of mutuality was lacking and that, therefore, the bank could not set off against the funds represented by the jointly held certificate of deposit the amounts the husband owed the bank. Id.

The facts of Atkinson are distinguishable from those of the case currently before this court. In Atkinson, the certificate of deposit did not contain any terms relating to the joint holders’ respective interests in the certificate of deposit, and it did not specify by its own terms whether the bank had the authority to offset the funds represented by the certificate of deposit against a debt owed by only one of the joint holders. In the present case, however, the disclosure document contains a setoff provision that provides that Compass Bank could offset its claims (e.g., the overpayment on the savings bond) against the Winecoffs’ bank account “without regard to the source or ownership of the funds on deposit in the account and without [the] requirement that the claims be owed to [Compass Bank] by all of the account owners rather than only some of them.”

In a case with facts similar to those of this case, our supreme court affirmed a summary judgment entered in favor of a bank on the plaintiffs’ claims relating to their contention that the bank had improperly offset funds from the plaintiffs’ joint bank account. Sullivan v. Central Bank of the South, 601 So.2d 985 (Ala.1992). In that case, the bank offset certain amounts from the joint checking and savings accounts of the plaintiffs, a husband and wife, after the husband refused to pay amounts owed on delinquent indebtedness held in the names of the husband and his ex-wife. The account agreements for the plaintiffs’ joint checking and savings accounts contained a setoff provision with language almost identical to that contained in the setoff provision in the present appeal. In affirming the summary judgment entered in favor of the bank on the plaintiffs’ claims, the court held that “the express terms of the [plaintiffs’] account agreements provided that any debt owed by any one of the account owners could be set off from the funds in the account to satisfy the debt.” Sullivan v. Central Bank of the South, 601 So.2d at 986.

Similarly, in this case, the setoff provision in the disclosure document for the Winecoffs’ bank account with Compass Bank provided that a debt owed Compass Bank by one of the Winecoffs could be offset against the account without the requirement that the debt be owed by both of the Winecoffs. In other words, the setoff provision contained in the disclosure document provides that the amount Sandy Winecoff owed Compass Bank could be set off against the Winecoffs’ joint account without regard to the element of mutuality. This court has already rejected the Winecoffs’ argument pertaining to the alleged unconscionability of the setoff provision. The Winecoffs have provided this court with no other argument as to why they should not be bound by the terms of the setoff provision contained in the disclosure document. Our supreme court has allowed a bank to offset a joint account for a debt incurred by only one of the cohold-ers of the joint account based on a contractual setoff provision similar to the one at issue in this case. Sullivan v. Bank of the South, supra. See also 10 Am. Jr.2d Banks and Financial Institutions § 867 (1997) (“A bank and its debtor-depositor may contract to allow setoff in certain instances in which it may otherwise be impermissible.” (Footnote omitted.)).

Given the foregoing authority and the arguments contained in the Winecoffs’ brief on appeal pertaining to the issue of mutuality, we cannot say that the Wine-coffs have demonstrated that the trial court erred in entering a summary judgment in favor of Compass Bank on their claims against Compass Bank.

AFFIRMED.

YATES, P.J., and CRAWLEY, PITTMAN, and MURDOCK, JJ„ concur.

      . Although the Winecoffs’ complaint did not expressly contain a claim alleging the uncon-scionability of the setoff provision, the Wine-coffs opposed Compass Bank's motion for a summary judgment based, in part, on that theory. We again emphasize that Compass Bank's initial motion for a summary judgment was based only on its defense of the Winecoffs’ claims against it. Therefore, in arguing the theory of unconscionability, the Winecoffs were not asserting unconscionability as a defense to any claim or counterclaim Compass Bank had asserted against them, but were instead asserting unconscionability as a theory under which they sought affirmative relief. We also conclude that the theory of unconscionability was presented to the trial court under Rule 15(b), Ala. R. Civ. P., which allows issues to be tried by the implied consent of the parties.

      . One of the savings bonds appears to have been in the name of "Gloria Inez Stockwell.” Sandy Winecoff testified that Inez Stockwell was her grandmother. A copy of the other savings bond is not contained in the record on appeal.


author: YATES, Presiding Judge. CRAWLEY, Judge,

text:
    V.O. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2020541.
    Court of Civil Appeals of Alabama.
    Oct. 17, 2003.

      Brent L. Callihan, Pelham, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill and Connie M. Carraway, asst, attys. gen., Department of Human Resources.
   YATES, Presiding Judge.

On October 1, 2002, the Shelby County Department of Human Resources (“DHR”) petitioned for the termination of the parental rights of V.O., the mother, as to her three minor children.

Following ore tenus proceedings on December 11, 2002, the court, at the request of DHR, suspended termination proceedings to afford the mother, who had recently started drug and alcohol treatment, additional time to present evidence as to whether she would be capable of parenting the children in the foreseeable future. On February 12, 2003, the court terminated the mother’s parental rights, finding that the children were dependent; that the mother was unable to provide for the children and that she would be unable to do so in the foreseeable future; that DHR had expended reasonable efforts to reunify the family, to no avail; that no viable alternatives to termination existed; and that termination was in the best interests of the children. The mother’s postjudgment motion was denied, and she appeals.

The termination of parental rights is governed by § 26-18-7(a), Ala.Code 1975, which provides:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

This court has stated that when evidence is received ore tenus in a case involving the termination of parental rights, the judgment of the trial court is presumed to be correct and will be set aside only if the record shows the judgment to be plainly and palpably wrong. L.A.G. v. State Dep’t of Human Res., 681 So.2d 596, 598 (Ala.Civ.App.1996). “‘A natural parent has a prima facie right to the custody of his child, unless it can be proven by clear and convincing evidence that permanent removal of the child from the parent’s custody would serve the best interests of the child.’ ” Id. at 598 (quoting T.M.S. v. Elmore County Dep’t of Human Res., 647 So.2d 746, 747 (Ala.Civ.App.1994)). The paramount concern of the court in these proceedings is the best interests of the child. In determining the best interests of the child, the court must consider whether the parents are physically, financially, and mentally able to provide for the child. Id.

Additionally, when the State seeks to terminate a parent’s parental rights, the court must apply a two-pronged test: First, the court must find that there are grounds for the termination of parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990). Second, after the court has found that there exist grounds for the termination of parental rights, the court must inquire as to whether all viable alternatives to the termination of parental rights have been considered. Id. at 954. Once the court has complied with this two-pronged test, it can order the termination of parental rights. Id.

First, the mother argues that there was no clear and convincing evidence presented at trial to warrant the termination of her parental rights. We disagree.

The record shows that as early as November 1991 DHR had determined that reports that the mother provided inadequate supervision and that she posed a substantial risk of physical injury to one of the children were “indicated.” Although DHR had received another report alleging that the mother posed a substantial risk of physical injury to the children, that the mother had a substance-abuse problem, and that the children had inadequate personal hygiene in July 2001, it did not complete an investigation because it was unable to locate the family. However, on September 1, 2001, the Montevallo Police Department contacted DHR, requesting immediate placement of the children, who had been in a vehicle with the mother when she was arrested for public intoxication and child endangerment. The children were initially placed with their paternal grandmother, who refused Family Options services and later lost custody of the children for failing to comply with a safety plan. DHR then attempted to place two of the children with their putative father. However, DHR determined that placement with the putative father was not feasible after discovering several conflicts with his work schedule and because he tested positive for drugs during every random screening, failed to regularly visit with the children and to attend court hearings and Individualized Service Plan meetings, was cohabiting with a person with an indicated child-abuse and neglect report, and was unwilling to change his lifestyle in order to better parent the children. The children were then placed in foster care, where they remain.

DHR expended reasonable efforts to reunify the mother and the children. DHR informed the mother that she would need to address her substance-abuse problem in order to regain custody of her children, and it repeatedly offered assistance in doing so, to no avail. The record indicates that from September 2001 to September 2002 the mother continuously denied that she had a substance-abuse problem, despite repeatedly testing positive for barbiturates, benzodiazepines, THC, methamphetamine, OxyContin, and cocaine. Following her arrest in Montev-allo, the mother was subsequently arrested for “driving under the influence” (“DUI”) in Helena and for possession of a controlled substance in Shelby County. The results of two psychological evaluations suggested that the mother needed inpatient treatment. DHR offered to provide such treatment; however, the mother refused the treatment.

In addition to the requirement that she be drug and alcohol free, the mother was instructed that she must also obtain stable housing and employment. Since her initial involvement with DHR, the mother has failed to obtain stable housing, instead opting to live with various friends and reportedly sleeping in the woods or in a vehicle. Similarly, the mother has failed to obtain stable employment. Although the record indicates that at the time of the hearing the mother was employed, she often changed jobs, and some of her jobs lasted for only three to four months. In fact, her employment had been terminated from one of those jobs for theft.

DHR also arranged weekly visitation between the mother and the children, offering to provide transportation if necessary. The mother missed several visits with the children, giving explanations of a lack of transportation, illness, employment, out-of-town excursions, and incarceration. After DHR unsuccessfully attempted to place the children with the paternal grandmother and the putative father, all other potential relative placements either declined custody or failed to reply to inquiries concerning custody of the children.

DHR petitioned for termination of the mother’s parental rights on October 1, 2002. Although the court had sufficient evidence upon which to terminate the mother’s parental rights at the December 11, 2002, hearing, it did not do so because DHR agreed to allow the mother additional time to prove she could parent the children. In reaching its decision to suspend the termination proceedings, the trial court took into consideration the mother’s entering the Drug Court program in Shelby County in September 2002. As a condition of suspending the termination proceedings, the mother agreed to comply with the following: to attend monthly court-ordered hearings; to visit the children; to attend counseling; to obtain stable housing and employment within 30 days; and to obey the law and Drug Court regulations. The mother understood and agreed that her failure to comply with those requirements, regardless of the reason, would and should result in the termination of her parental rights.

During a February 4, 2003, hearing, the court learned that the mother had violated a Drug Court regulation by consuming Nyquil brand cold medicine on December 25, 2002. Drug Court regulations prohibit the consumption of alcohol, including medicines that contain alcohol. The mother was incarcerated for one week for violating Drug Court policy. The mother testified that she was subsequently incarcerated for failing to appear for trial on a DUI charge in Alabaster, although she was aware, before the December 11, 2002, termination hearing, that she had to appear for trial on the DUI charge. The mother admitted that she had missed several visits with the children during and after her incarceration. She also failed to attend individual counseling sessions during and after her incarceration. Although the mother testified that she had acquired stable housing, she was terminated from her job because she was incarcerated.

Finally, the mother argues that terminating her parental rights would not be in the best interests of the children. This court has stated that the best interests of the children is paramount in termination-of-parental-rights cases. In determining the best interests of the children, the trial court considered the mother’s physical, financial, and mental ability to provide for the children. L.A.G., supra. The record in the present case indicates that the mother abused alcohol and drugs without regard for the welfare of her children, despite DHR’s repeated offers of assistance in overcoming her addiction. Even after the mother sought treatment in overcoming her substance-abuse problem, albeit in an effort to avoid incarceration in a state penitentiary, she again failed to take the steps necessary to regain custody of her children by violating Drug Court policy, subsequently being incarcerated, missing visits with the children, missing counseling sessions, and losing her job.

Based on the foregoing, we cannot say that the trial court erred in finding that termination of the mother’s parental rights was in the best interests of the children.

AFFIRMED.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

Although I agree that the mother’s parental rights could have been terminated at an earlier time based upon her history of denial of her substance-abuse problem and her failure to achieve the goals set for her by the Department of Human Resources (“DHR”), I cannot agree that, in February 2003, the mother’s rights were appropriately terminated.

DHR filed a petition to terminate the mother’s parental rights to her three children in October 2002. When the case came to trial in December 2002, the mother testified concerning her addiction to alcohol and drugs, admitting that she had not put her children first in her life since August 2001. DHR and the mother agreed in open court to continue the termination hearing based upon the mother’s progress in Drug Court, a drug-rehabilitation program she had begun in September 2002 after her conviction for possession of a controlled substance. DHR had several requirements that the mother agreed to meet. Specifically, DHR required the mother to find her own residence within 30 days of the hearing; to maintain employment; to comply with all requirements of the Drug Court, including passing all drug tests; to attend all counseling sessions; and to attend all scheduled visitations. The mother agreed to these requirements in court on December 11, 2002.

The mother received a day-pass from the Drug Court work-release facility on Christmas Day. She spent that day at a friend’s home. She testified that she was suffering from a bad cold or sinus infection and that her friend offered her some NyQuil, an over-the-counter cold medication. The mother admitted that Drug Court regulations required her to either seek permission from or to at least notify in advance Drug Court personnel regarding any use of over-the-counter medication. When the mother returned to Drug Court, she was “punished” for the rules infraction by being incarcerated in the Shelby County jail for approximately one week. Because the mother had not appeared in the Alabaster City Court on a pending “driving under the influence” (“DUI”) charge, she was transferred from the Shelby County jail to the Alabaster City jail, where she remained for another few days.

During her incarceration, the mother missed two scheduled visits with her children. She also missed a counseling appointment. The Monday following her release from jail, she again missed visitation because the man upon whom she relied for transportation was unable to get off from work in time.

I do not agree with the majority’s conclusion that the evidence clearly and convincingly supports the trial court’s ultimate conclusion that the mother’s current inability to care for her children is unlikely to change in the foreseeable future. The mother was admittedly resistant to early efforts at reunification by DHR. However, since her conviction and her participation in Drug Court, the mother has made significant progress toward overcoming her addiction. She had, until she was incarcerated for her unauthorized use of NyQuil, maintained visits with her children. Indeed, the court report in the record indicated that the mother enjoyed the visits and that, for the most part, the mother’s behavior at visitations was appropriate. The mother also made sure that she was employed. Although she lost her position at a local Subway fast-food franchise because of her incarceration, she had sought and secured other employment by the February 2003 trial. In fact, the mother testified that she had an interview concerning a job at a local restaurant on weekends to make additional money with which to pay her court fines and expenses. In my opinion, to negate the progress that DHR had noted and commended the mother for in the three months before the December 2002 trial, the mother would have had to do more than miss one counseling appointment and three visitations.

I realize that the mother had agreed to DHR’s conditions. DHR’s counsel made very clear its position that the mother’s missing any scheduled visitations or appointments would not be excused no matter the reason for the failure. I understand DHR’s insistence on a parent’s meeting necessary goals during the reunification process. However, I find it perplexing that DHR would, under the guise of attempting to prevent termination of a parent’s rights, impose such stringent and unforgiving conditions on the parent that DHR could have anticipated the parent would fail to meet those conditions, especially if she was, as the trial court described in its judgment, “in a fragile state of sobriety.”

The mother has made significant strides, strides that DHR even commended her for at trial. However, DHR required the mother to leave the work-release/treatment facility of Drug Court, despite DHR’s counsel’s admission that the mother’s drug-court coordinator “might have some concerns about her leaving for his own treatment issues.” DHR’s counsel commented during the December 2002 trial that treatment counselors consider relapsing part of the recovery process; he referred to these relapses as “bumps in the road.” After making this acknowledgment, DHR’s counsel stated that the mother would not be allowed any bumps in the road and said that any mistake would result in DHR seeking the termination of her parental rights.

Certainly, repeated failure of a parent to adjust his or her circumstances to meet the needs of his or her children could result in termination of his or her parental rights. See C.D.H. v. State Dep’t of Human Res., 568 So.2d 1237 (Ala.Civ.App.1990) (affirming the termination of parental rights where the mother had served three prison sentences in five years). However, small setbacks in the lives of parents who have made significant progress toward reunification should not automatically result in “the last and most extreme disposition permitted by law, the termination of ... parental rights.” Bowman v. State Dep’t of Human Res., 534 So.2d 304, 306 (Ala.Civ.App.1988); Ex parte Ogle, 516 So.2d 243 (Ala.1987). In any case dealing with a parent’s recent progress toward reunification, the trial court is required to determine “whether the parent’s recent progress was substantial and consistent and, therefore, indicative of a willingness and ability to maintain that progress, or whether the parent’s efforts were late, incomplete and, therefore, unconvincing, measures taken only in anticipation of the termination-of-parental-rights hearing.” J.D. v. Cherokee County Dep’t of Human Res., 858 So.2d 274, 277 (Ala.Civ.App.2003).

The trial court characterized the mother’s progress as “too little too late.” I disagree. Although the mother’s earlier resistance to DHR’s attempts at reunification might have, at the time, been a basis for termination, her progress at the time of the December 2002 trial and her continued participation in the Drug Court program, even after suffering the consequences of a rules infraction, seem to indicate that the mother has taken very seriously her need for treatment and that she has focused on the goal of changing her lifestyle to accommodate the needs of her children. The evidence presented at trial concerning the current conditions or conduct relating to the mother’s ability to care for her children is simply not clear and convincing evidence that termination is warranted at this point because a less drastic alternative to termination — i.e., permitting the mother to complete the Drug Court program, pursue continued counseling, and achieve financial independence while the children continue to be properly cared for in their foster home— is clearly available. The trial court’s conclusion that this mother’s condition is unlikely to change in the foreseeable future is likewise unsupported by the necessary quantum of proof. I respectfully dissent.

      . The children were fathered by two different men. Both fathers’ parental rights were also terminated; they have not appealed.

        . The paternal grandmother died sometime between the removal of the children from her custody and the December 11, 2002, hearing.

      . THC or tetrahydrocannabinol is the active ingredient in marijuana.

      . In order to participate in the Drug Court program and avoid serving time in the penitentiary, a defendant must first plead guilty to the offense. Next, the court adjudicates the defendant guilty but postpones sentencing pending the defendant's enrollment in and successful completion of the Drug Court intensive drug-treatment program. If the defendant fails to comply with the rules of the program, the court may then impose the appropriate sentence against the defendant.

      . The record indicates that the Alabaster City charge had been "put on hold” pending the mother's completion of Drug Court. Apparently her incarceration triggered the activation of the dormant warrant.


author: MURDOCK, Judge. CRAWLEY, Judge,

text:
    Patricia Y. BENSON v. Edwin A. BENSON.
    2011286.
    Court of Civil Appeals of Alabama.
    Oct. 17, 2003.

      Mark D. Ryan and Robin A. Mahan of Mark D. Ryan, P.C., Bay Minette, for appellant.

      Linda L. Howard of Murchison, Howard & Wright, L.L.C., Foley, for appellee.
   MURDOCK, Judge.

In July 2001, Edwin A. Benson (“the husband”) filed a complaint against Patricia Y. Benson (“the wife”), seeking a divorce on the ground of incompatibility of temperament and an equitable division of the parties’ real and personal property. The wife counterclaimed, seeking a divorce on the ground of adultery and an equitable division of the parties’ real and personal property, as well as “support.”

After an ore tenus proceeding, the Baldwin Circuit Court entered a judgment divorcing the parties on the grounds of incompatibility of temperament and irreconcilable differences. The divorce judgment awarded the wife, among other things, 10 acres of real property that she owned before the parties’ marriage (hereinafter referred to as “the Wilcox Road property”) (estimated fair market value of between $30,000 and $50,000); the remaining balance (approximately $20,000) of the $26,000 she had withdrawn during the pendency of the divorce proceedings from the parties’ joint equity-line-of-credit account; a 2001 Buick vehicle, along with the indebtedness owed thereon; a 1995 or 1996 Nissan pickup truck (estimated fair market value of $3,000); $2,500 in moving and temporary housing expenses; her personal effects; and all of the household furniture and household goods (except a piano, an armoire, and other musical instruments and equipment that were awarded to the husband).

The husband was awarded, among other things, the marital home (estimated fair market value of approximately $300,000, but subject to an outstanding equity line of credit in the approximate amount of $68,000); commercial real property that he owned before the parties’ marriage (hereinafter referred to as “the Fairhope property”) (estimated fair market value not included in the record, but subject to an outstanding mortgage indebtedness in the approximate amount of $136,000); his stock in a family-owned business, Benson’s Appliance Center (“Benson’s), that he was part owner in before the parties’ marriage; a motor home (estimated fair market value of between $33,000 and $55,000);. a boat (estimated fair market value of $10,000, but subject to an outstanding indebtedness of $6,000 to $7,000); his personal effects; and the piano, armoire, and other musical instruments and equipment referred to above. The husband was also ordered to pay the wife’s attorney fees, to provide hospitalization insurance coverage for the wife, and to pay the wife $1,000 a month in rehabilitative alimony for a period of three years.

With regard to the rehabilitative alimony and insurance, the divorce judgment stated:

“4. The Court finds from the testimony presented that the ... [w]ife does not presently work, however, she has worked in the past and she is eligible for Social Security retirement income which she does not yet collect, but which will provide her in excess of $1,000 per month at age 65. She is currently 63 years of age. Therefore, the ... husband shall pay to the ... wife rehabilitative alimony at the rate of $1,000 per month for a period of three (3) years from the date of this judgment. The ... husband shall also be responsible [for providing] hospitalization insurance coverage for the ... wife comparable to that which she ... now has under his group health insurance plan.”

The divorce judgment also noted that “[t]he parties have no retirement funds, pension accounts, or investment accounts for division by the Court.”

The wife filed a motion to alter, amend, or vacate the judgment, or, in the alternative, for a new trial, alleging that the trial court had erred in failing to award her more alimony and in failing to award her a portion of the equity in the marital home. Her motion alleged, in part:

“2. The [husband] testified at the trial ... that at age 65, the [wife] would be eligible to draw over $1000 per month [in] [S]ocial [S]ecurity [retirement benefits]. Attached hereto is a certified copy of the [wife’s earnings history from the] Social Security Administration showing that at age 65+4 months, [the wife] will only be able to draw $679.00 per month.
“4. The husband and the wife acquired the marital residence during their marriage and amassed 100% of the equity therein during the marriage. None of the equity was amassed prior to the marriage. Under the [divorce judgment,] ... the husband gets approximately $200,000 in equity and the wife gets nothing. This is grossly unfair. The Court makes no arrangements for the wife, who is in her 60s and in bad health, to have any place to live whatsoever.”

Thereafter, the trial court entered, on the case action summary sheet, an amendment to the judgment:

“[The wife’s] Motion to Alter, Amend, or Vacate is granted. Paragraph 4 of the Order of 6-19-02 is amended to read ‘Therefore, the [husband] shall pay to the [wife] rehabilitative alimony at a rate of $1000 per month for a period of (five) 5 yrs from the date of this Judgment.’ All other provisions are to remain the same.”

The wife appeals.

The parties married in October 1991. In November 2000, the husband told the wife he did not love her anymore, and the parties subsequently separated in February 2001. The marriage was the third for the husband and the second for the wife. (The husband’s first wife died and his second marriage ended in a divorce; the wife’s first marriage ended in a divorce.) The husband has two or three adult children from his first marriage and two teenage sons from his second marriage. The wife has two adult sons from her previous marriage. At the time of the trial in July 2002, the husband was 58 years old and the wife was 63 years old.

During the pendency of the divorce proceedings, the wife resided in the marital home, along with two of her grandchildren (a granddaughter and a grandson) that she had assumed physical custody of sometime during 1999. (The wife was awarded physical custody of those grandchildren in 2000.) The husband resided in the motor home, which he parked at a local trailer park. The husband paid all of the marital debts, except the electric utility bill for the marital home, which the wife paid. Additionally, the husband continued to pay the wife a “salary” of $500 every two weeks through Benson’s, his family-owned business. (The wife’s “salary” at Benson’s during the parties’ marriage is discussed in more detail below.)

The parties offered conflicting evidence regarding the cause of the breakdown of the marriage. The husband testified that the wife had been mean to. his children from one of his previous marriages. The wife denied that allegation. The husband also testified that the wife had failed to pay the household bills in a timely manner at a time when his maintaining a good credit rating was crucial for the continued operation of Benson’s. The wife admitted that she had paid some bills late in early 2000 because of the stress of having her grandchildren living with them. The husband testified that difficulties involving the grandchildren had contributed to the breakdown of the marriage as well.

The wife introduced a copy of a divorce judgment of one of her son’s (dated June 23, 2000); pursuant to the terms of an agreement between the wife’s son and his former wife that was incorporated into that judgment, the wife’s son and his former wife agreed that “physical custody [of their children] be placed with the their paternal grandparents, [the husband] and [the wife].” (Neither the husband nor the wife was a party to that divorce proceeding.) The wife also introduced a “Limited Power of Attorney” (dated November 19, 1999), in which her son and his former wife granted the husband and the wife, pursuant to § 26-2A-7, Ala.Code 1975, authority with respect to the health, education, and maintenance of the granddaughter. The wife testified that it was her understanding that, pursuant to the terms of her son’s divorce judgment, the husband and she had been awarded joint physical custody of her grandchildren and that only a court could relieve them of that responsibility.

The husband denied that he had been awarded joint physical custody of the wife’s grandchildren. The husband testified that he had never seen a copy of the wife’s son’s divorce judgment and that he was “totally floored” by what was stated in that divorce judgment. The husband testified that he never signed any document agreeing to assume physical custody of the wife’s grandchildren and that he never intended to become the grandchildren’s permanent guardian. The husband- testified that the wife’s son and the wife’s son’s former wife executed the “Limited Power of Attorney” in order to permit the husband and the wife to enroll the granddaughter in school in their school district and to allow the husband to add the granddaughter as a dependent on his health insurance policy.

The wife testified that she became suspicious that the husband was having an affair with one of his employees, D.N., in May or June 2000. The wife introduced copies of telephone records showing that the husband and D.N. had called one another. Some of the telephone calls occurred before the husband and the wife separated in February 2001, and some of the telephone calls occurred after the parties separated. When questioned about the telephone calls, the husband and D.N. testified that the majority of the telephone conversations were work related.

The husband claimed that the wife had telephoned D.N.’s husband and had mailed him letters regarding her suspicions that the husband and D.N. were having an affair; the wife denied those allegations. D.N. testified that she and her husband separated in June 2001 because of accusations and rumors of her having an affair with the husband. Both D.N. and the husband admitted that they began having sex in July 2001. The wife admitted that she visited D.N.’s husband at his home in July 2001 and that she left a piece of paper with D.N.’s address on it in his mailbox.

The husband and three of his children are the stockholders of Benson’s. The husband runs the business. The husband testified that his annual salary from Benson’s is approximately $52,000 and that his “take-home” pay is $1,400 every two weeks. The record does not reflect the amount of taxes withheld from the husband’s paycheck, nor does it reflect what, if any, other amounts are withheld. The husband drives a 1996 Chevrolet Suburban sport-utility vehicle owned by Benson’s, and Benson’s provides health insurance coverage for the husband. The wife claimed that the husband’s salary from Benson’s could be higher than the husband testified that it was, taking into consideration the “salary” he had paid her in the past. The husband testified that because of competition from three retail chains entering the market area in 1997, 1998, and 2000, respectively, Benson’s had operated at a loss in 1999 and 2000. He further testified that Benson’s netted a profit of $14,000 in 2001 and that, as of the date of the trial (July 2002), it was showing an estimated profit for 2002 in the mid-$20,000s.

During the parties’ marriage, the husband paid the wife a “salary” through Benson’s; it is undisputed that the wife did not actually work at the business. The wife testified that the husband placed her on the payroll shortly after the parties were married; the husband testified that she was on the payroll for six to eight years. The husband testified that Benson’s had paid the wife a salary of $45,900 in 1998, $37,300 in 1997, and $28,400 in 1996; the husband also testified that, at the time of trial, he was paying the wife $500 every two weeks. The wife testified that the last federal income tax return the parties filed together reflected that she made $46,800.

The husband testified that he had placed the wife on the payroll of Benson’s to build up her Social Security retirement benefits. The husband testified that, “if something happened to him,” the wife would not receive any Social Security benefits based on his earnings because he had minor children and an ex-wife. The wife testified that the husband told her he was placing her on the payroll so that the parties could have additional income without it being considered part of the husband’s income for purposes of determining his child-support obligation for his teenage sons from his second marriage. The wife testified that the husband stopped paying her a “salary” at the end of 2000 because, at that time, the husband and his ex-wife were in a “custody battle” and his ex-wife was seeking child support based on the husband’s and the wife’s combined salaries.

At trial, the husband testified that the wife would receive over $1,000 a month in Social Security retirement benefits (based on her previous earnings) if she waited until she was 65 to begin receiving those benefits. When asked, “What will the wife draw when she draws out the [Sjocial [Security?” the husband responded, “If she holds out to sixty-five something like fourteen hundred dollars a month. I think that is what the report said.”

Before the parties were married, the wife had worked as a convenience-store clerk, earning slightly more than minium wage. Before the parties were married, the wife had financial problems and had transferred the Wilcox Road property to her sister so that the wife’s creditors could not “confiscate” the property. The husband testified that he had paid all of the wife’s debts in 1996 and that the Wilcox Road property had been transferred back to the wife. The wife testified that she takes medication for high blood pressure. She also testified that in the year before the trial she had had an operation on her shoulder and that her overall health had declined.

The husband and the wife jointly owned the marital home. The record does not include the date on which the home was purchased or the source of moneys used to purchase the home. The wife states in her brief on appeal that she did not contribute financially to the purchase of the marital home.' The husband testified that the marital home is worth $300,000.

In August 1991, the husband and the wife established a $75,000 equity line of credit on the marital home. The husband withdrew $49,000 from that equity-line-of-credit account, and, as previously stated, the wife withdrew the remaining $26,000 during the pendency of the divorce proceedings. The wife testified that when the parties established the equity line of credit, the husband told her that he was going to withdraw $35,000, and was going to repay the debt over a period of three and one-half years at a rate of $1,000 per month. The wife testified that she withdrew the $26,000 after discovering that the husband had withdrawn $49,000 — $14,000 more than he had told her he planned on withdrawing — and because he was not making the $1,000 monthly payments. The wife testified that she discussed the matter with her attorney before withdrawing the $26,000. At the time of the trial, the wife had spent approximately $6,000 of the $26,000, which she claimed she had used to pay medical expenses that had not been covered by insurance. The husband testified that he was making monthly payments on the indebtedness in the approximate amount of $1,100; he further testified that the wife’s withdrawal of the $26,000 had cause the monthly payment amount to double.

At trial, the husband asked the trial court to sell the marital home and to “divide the proceeds [of the sale] after the debts [the $75,000 equity line of credit and the $80,000 mortgage on his commercial property] are paid.” The wife requested that the court award her the marital home and order the husband to “continue to pay for it.” The wife explained that she needed the marital home to raise her grandchildren.

On appeal, the wife contends that the trial court erred because, she says, the amount of alimony awarded to her, as well as the length of time for which that alimony is to be paid, and the division of the property were against the great weight of the evidence, and, therefore, she contends, those awards constitute an abuse of the trial court’s discretion.

We begin by noting the appropriate standard of review in divorce proceedings. “Trial judges enjoy broad discretion in divorce cases, and their decisions are to be overturned on appeal only when they are ‘unsupported by the evidence or [are] otherwise palpably wrong.’ ” Ex parte Bland, 796 So.2d 340, 344 (Ala.2000) (quoting Ex parte Jackson, 567 So.2d 867, 868 (Ala.1990)). Also, when, as in this case, a trial court’s judgment is based on ore ten-us evidence, the judgment is presumed correct. Kennedy v. Kennedy, 743 So.2d 487 (Ala.Civ.App.1999). The presumption of correctness under the ore tenus rale “is based on the trial court’s unique position to observe the witnesses and to assess their demeanor and credibility.” Glazner v. Glazner, 807 So.2d 555, 559 (Ala.Civ.App.2001).

Matters such as alimony and property division are within the sound discretion of the trial court. Ex parte Drum-mond, 785 So.2d 358 (Ala.2000); Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993); Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987). This court will not reverse a trial court’s division of marital property and its award of periodic alimony unless the trial court’s rulings are unsupported by the evidence and, thus, amount to an abuse of discretion. Ex parte Drummond, supra; Parrish, supra. “This court has defined rehabilitative alimony as ‘a sub-class of periodic alimony’ that allows a spouse ‘time to reestablish a self-supporting status.’ ” Fowler v. Fowler, 773 So.2d 491, 495 (Ala.Civ.App.2000) (quoting Jeffcoat v. Jeffcoat, 628 So.2d 741, 743 (Ala.Civ.App.1993), overruled on other grounds, Crenshaw v. Crenshaw, 816 So.2d 1046 (Ala.Civ.App.2001)).

In dividing property and awarding alimony, the trial court should consider “the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; [the parties’] station in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the cause of the divorce.” Russell v. Russell, 777 So.2d 731, 733 (Ala.Civ.App.2000). Also, the trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996); Brewer v. Brewer, 695 So.2d 1 (Ala.Civ.App.1996). “A property division that favors one party over another does not necessarily indicate an abuse of discretion.” Fell v. Fell, 869 So.2d 486, 496 (Ala.Civ.App.2003) (citing Dobbs v. Dobbs, 534 So.2d 621 (Ala.Civ.App.1988)).

At the outset, we note that the trial court’s finding in the original divorce judgment that the wife’s “Social Security retirement income ... will provide her in excess of $1,000 per month at age 65” is erroneous. Although the husband testified at the trial that he believed the last “report” he had seen (presumably an earnings-history statement for the wife from the Social Security Administration) stated that the wife would receive approximately $1,400 per month if she “[held] out to sixty-five something,” the wife introduced documentary evidence to the contrary— e.g., the statement of her earnings history from the Social Security Administration, dated January 18, 2000, that estimated the wife’s Social Security retirement benefits at “age 65 plus 4 months” to be $730 per month.

Although the trial court did not alter the specific finding — namely, that the wife’s “Social Security retirement income ... will provide her in excess of $1,000 per month at age 65” — in its amended judgment, we presume that the trial court took the wife’s arguments into consideration when it adjusted the length of time the wife would receive rehabilitative alimony from three years to five years. Where a trial court does not make specific findings of fact, this court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Transamerica Commercial Fin. Corp. v. Am-South Bank, N.A., 608 So.2d 375 (Ala.1992).

The wife also argues that, based on the general factors to be considered in awarding periodic alimony and in dividing marital property, she still should have received periodic alimony. While the wife’s argument is not entirely unpersuasive, we cannot say that it was an abuse of discretion under the circumstances presented for the trial court to award the wife only rehabilitative alimony. We note, however, that the total amount of the alimony awarded, including the lack of periodic alimony, provides a context for our consideration of the trial court’s failure to award the wife a portion of the equity in the marital home.

The marital home is the largest asset owned by the parties that was acquired during their marriage. The husband testified that the marital home is worth $300,000. We note that the marital home was acquired early in the marriage and that all of the equity in the marital home was likewise acquired during the marriage. During the parties’ marriage, the home was damaged by a hurricane. The husband refinanced the mortgage he owed on his commercial property and used $80,000 of the money obtained from the refinancing to make the repairs to the marital home that were caused by the hurricane. Even if we deduct that $80,000 from the parties’ equity in the marital home, the parties’ equity in the marital home is still $220,000. If we then subtract the $75,000 equity-line-of-credit indebtedness (of which the husband received $49,000 and the wife received $26,000) from the $220,000, there remains a net equity of $145,000.

The parties were married over nine years before they separated'. At.the time of the trial, the wife was 63 years old and was in fair health, and the husband was 58 years old. The husband runs his family-owned business, Benson’s, and he earned over $90,000 a year if the income he allocated to the wife during the last several years is included in his income. The wife had worked as a convenience-store clerk before the parties’ marriage. Although the trial court granted the divorce on the grounds of incompatibility of temperament and irreconcilable differences, there was considerable testimony indicating that the husband’s relationship with another woman had contributed to the breakup of the marriage.

In addition to the rehabilitative alimony of $1,000 per month for a period of 60 months, the wife was awarded the Wilcox Road property that she had received in her previous divorce; the remaining $20,000 of the $26,000 she had already withdrawn from'the equity line of credit; a 2001 Buick vehicle, along with the indebtedness owed thereon; a 1995 or Í996 Nissan pickup truck; $2,500 in moving and temporary housing expenses; her persona} effects; and all of the household furniture and household goods (except a piano, an armoire, and other musical instruments and equipment that were awarded to the husband).

The husband was awarded the marital home, along with the outstanding indebtedness thereon; the Fairhope property he owned before the parties’ marriage; his stock in Benson’s, the family-owned business that he was part owner in before the parties’ marriage; a motor home; a Bay-liner boat, along with the outstanding indebtedness owed thereon; his personal effects; and' the piano, armoire, and other musical instruments and equipment referred to above. ■

Taking into consideration the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of their marriage; the parties’ stations in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the breakup , of the marriage, we conclude that the trial court’s division of the marital property was not equitable and that the trial court abused its discretion by not awarding the wife a portion of the equity in the marital home. Accordingly, we reverse that portion of the trial court’s judgment dividing the parties’ marital property, and we remand the cause to the trial court for the entry of a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON and PITTMAN, JJ., concur.

YATES, P.J.’ concurs in the result.

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I respectfully dissent. The majority’s decision that the trial coupt abused its discretion by failing to award the wife a portion of the equity in the marital home constitutes, in my opinion, a substitution of this court’s judgment for that of the trial court. See Ex parte Bland, 796 So.2d 340 (Ala.2000), and Ex parte Wallace, 795 So.2d 719 (Ala.2000). “Trial judges enjoy broad discretion in divorce cases, and their decisions are to be overturned on appeal only when they are ‘unsupported by the evidence or [are] otherwise palpably wrong.’ ” Ex parte Bland, 796 So.2d at 344 (quoting Ex parte Jackson, 567 So.2d 867, 868 (Ala.1990)).

Although the wife’s property awarj was not equal to the husband’s, I cannot con-elude that the property division was inequitable or that the judgment was palpably wrong in view of the following circumstances: At the time of the parties’ marriage, the husband paid off the wife’s debts, thus enabling her to reacquire 10 acres of real property she had previously owned on Wilcox Road; that property is worth between $30,000 and $50,000. The wife was awarded the balance of the funds ($20,000) that she withdrew from the parties’ equity line of credit; with those funds, the wife could afford to make a down payment on a home. The husband was ordered to pay the wife $2,500 for moving and temporary housing expenses, $1,000 per month for five years as rehabilitative alimony, and to provide the wife hospitalization insurance coverage. Throughout the marriage, the husband paid the wife a “salary” from his business for work that she did not do. Finally, there was evidence from which the trial court could have found that the wife’s conduct contributed as much to the breakup of the marriage as the husband’s adultery did. I would affirm the judgment of the trial court.

      . Although the husband stated during the trial that there was a house located on the Wilcox Road property, it appears that there is not a house located on that property.

      . The court also required the wife to be responsible for paying for the insurance on this vehicle. The record indicates that the payment on the indebtedness owed on this vehicle was approximately $500 to $600 per month; however, the other terms of the note evidencing the indebtedness owed on this ve-hide and the estimated fair market value of the vehicle are not included in the record.

      . The parties used $80,000 of this amount to repair the marital home after a hurricane. Additionally, the commercial property produced rental income in the approximate amount of $2,800 a month. The husband testified that he did not make any money off this property — that the $2,800 monthly rental income just "pays the payment.”

      . Although the wife made a statement during a conversation she recorded between herself and the husband indicating that the husband might have been married three times before he married the wife, all other evidence in the record indicates that the husband had been married twice.

      . The agreement further states that the wife's son "shall pay child support ... in accordance with the Rule 32 child support guidelines.” The wife testified that her son paid some child support, "depending] on how much he was making,” and that the son’s former wife paid minimal child support.

      . The record indicates that neither party behaved in an exemplary manner during the divorce proceedings. One of the husband's employees testified that she observed the wife going through the husband’s desk drawers at Benson's (apparently while the husband was not present). That same employee also testified that the wife told her that she had broken into D.N.’s house. The wife admitted that she had walked around D.N.'s house, but she denied that she had broken into it.
      The wife recorded a conversation she had with the husband wherein the husband threatened to have one of the wife's sons, who was an employee at Benson's, arrested if the wife did not ''back-off” her position regarding property-settlement negotiations during the pendency of the divorce proceedings. The husband claimed that he was merely attempting to settle the parties' divorce. Thereafter, the husband pressed charges against the wife's son for stealing from Benson’s, and the wife's son was arrested.

      . The record indicates that the husband was paying approximately $520 a month in child support.

      . The husband claimed that the wife had financial problems after she was caught stealing from a former employer; the wife denied that allegation.

      . The husband states in his brief on appeal that the trial court heard oral arguments on the wife's postjudgment motion but that the hearing was not transcribed and, therefore, was not included in the record. (The husband does not claim to have presented any additional evidence at that hearing.) The husband states that he pointed out at that-hearing that the wife would be entitled to a higher amount of Social Security benefits, based on the husband's earnings and assuming that she does not remarry and further assuming that she begins receiving those benefits on February 6, 2006, at which time the husband will be 62 years old and the wife will be 67 years old. The husband argues that the trial court extended his rehabilitative-alimony obligation an additional two years so that the wife could wait until she reached age 67 to begin receiving Social Security benefits— thereby basing her benefits on the husband's earnings instead of solely on her earnings.