text:
    Ex parte A.M.E. (In re A.M.E. v. M.W.F.).
    2130073.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2014.

      Charles H. Dunn of Boyd, Fernambucq & Dunn, P.C., Birmingham, for petitioner.

      J. Robert Bentley, Oneonta, for respondent.
   THOMPSON, Presiding Judge.

On May 29, 2018, M.W.F. filed in the Blount District Court (“the trial court”) a petition seeking to establish his paternity of a child (“the child”) born in 2012 to A.M.E. (“the mother”). In his petition, M.W.F. alleged that the mother became pregnant during her relationship with him and that the relationship ended before the birth of the child. M.W.F. further alleged that, in response to his inquiries regarding the pregnancy, the mother informed him that “the baby did not survive.” According to M.W.F., he learned that the child had, in fact, been born healthy, and he sought an order establishing his paternity of the child.

In response to M.W.F.’s petition, the mother filed a motion to dismiss in which she alleged that M.W.F. lacked standing to seek a paternity determination because, she stated, she was married to another man at the time of the child’s birth. The mother filed a brief in support of her motion to dismiss in which she alleged that, at the time the child was born, she was married at common law to M.L. In support of that brief, the mother submitted an affidavit in which she testified:

“I am the Defendant in the above-styled case. I am a resident of the State of Alabama, Blount County and have been for more than six (6) months. I am the Mother of the minor child at issue. I am a married woman having become married on September 1, 2012, to [M.L.], also a resident of Blount County. The minor child at issue is a child of our marriage. My Husband and I did not obtain a marriage license, thereby intending, agreeing to and becoming permanently married via common law. My Husband and I had the capacity to marry, being over the age of nineteen (19), both having never married before, being unrelated by blood, being of sound mind and body at the time of the marriage, which was consummated. My Husband and I have and do continue here to hold ourselves out to be Husband and Wife. My Husband and I hold ourselves out publicly to the community, friends, family, and neighbors as Husband and Wife and are recognized as such. My Husband and I live in the same home, cohabitating with our minor child. My Husband and I have an exclusive marital relationship, to the exclusion of all other relationships. My Husband and I share marital duties, such as sharing income, expenses, household duties, and refer to each other as ‘husband’ and ‘wife.’ ”

In support of the mother’s motion to dismiss MW.F.’s paternity action, M.L. submitted an affidavit that was similar in substance, and identical in many other respects, to the mother’s affidavit. In his affidavit, M.L. testified that the child was born during his and the mother’s alleged common-law marriage.

M.W.F. opposed the mother’s motion to dismiss, arguing that whether there exists a common-law marriage between the mother and M.L. is a question of fact. Thus, M.W.F. argued, the trial court should conduct an evidentiary hearing on the issue whether the mother was married at common law to M.L.

On October 11, 2013, the trial court entered an order denying the mother’s motion to dismiss the paternity action. In that order, the trial court also ordered the parties to submit to paternity testing.

The mother filed a purported post-judgment motion. See SCI Alabama Funeral Sens., Inc. v. Hester, 984 So.2d 1207,1208 n. 1 (Ala.Civ.App.2007) (“A valid postjudgment motion may only be taken in reference to a final judgment.”). The trial court did not rule on that motion. The mother timely filed her petition for a writ of mandamus in this court from the October 11, 2013, order. See Rule 21(a)(3), Ala. R.App. P. (“The petition [for a writ of mandamus] shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal.”); and Ex parte A.E.Q., 102 So.3d 388, 390-91 (Ala.Civ.App.2012) (The presumptively reasonable time for filing a petition for a writ of mandamus in a juvenile case is within 14 days of the entry of the order being challenged.).

In her brief to this court, the mother asks this court to issue a writ of mandamus directing the trial court to dismiss M.W.F.’s paternity action; she contends the trial court lacks subject-matter jurisdiction over the action.

“ ‘Mandamus is an extraordinary remedy and will be granted only where there is “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). This Court will not issue the writ of mandamus where the petitioner has “full and adequate relief’ by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)).’
“Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003). “‘The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.” ’ Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala. 2005) (quoting Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala. 2003)).”

Ex parte Safeway Ins. Co. of Alabama, Inc., [Ms. 1120439, Oct. 4, 2013] — So.3d -,-(Ala.2013).

The Alabama Uniform Parentage Act (“the AUPA”), § 26-17-101 et seq., Ala.Code 1975, governs this action. Under the AUPA,

“[t]he father-child relationship may be established between a man and a child by:
“(1) an unrebutted presumption of the man’s paternity of the child under Section 26-17-204;
“(2) an effective acknowledgment of paternity by the man under Article 3[, i.e., § 26-17-301 to § 26-17-315], unless the acknowledgment has been rescinded or successfully challenged;
“(3) an adjudication of the man’s paternity;
“(4) adoption of the child by the man; or
“(5) the man’s having consented to assisted reproduction by a woman under Article 7[, i.e., § 26-17-701 to § 26-17-707,] which resulted in the birth of the child.”

§ 26-17-201(b), Ala.Code 1975.

In this case, M.W.F. seeks to have his paternity adjudicated by the trial court. See § 26 — 17—201(b)(3). In response, the mother contends that M.L., to whom she says she was married at the time of the child’s birth, is the presumed father of the child. Section § 26 — 17—204(a)(1), Ala.Code 1975, specifies that, among others, a man who is married to a child’s mother at the time of the child’s birth is the child’s presumed father. The mother relies on § 26-17-607(a), Ala.Code 1975, which provides that if a presumed father of a child “persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.” See also D.F.H. v. J.D.G., 125 So.3d 146, 153 (Ala.Civ.App. 2013). The mother submitted an affidavit to the trial court in which M.L. testified, in essence, that he wanted to persist in any presumption of paternity afforded him under § 26-17-607(a). Therefore, in her brief to this court, the mother contends that M.W.F. lacks standing to assert his paternity by virtue of what she claims is her common-law marriage to M.L. “more than three months before the birth of the child at issue, and M.L.’s desire to claim the child as his own.”

M.W.F. correctly argues that the issue whether a common-law marriage exists is a question of fact to be resolved by the trier of fact. Gray v. Bush, 835 So.2d 192 (Ala.Civ.App.2001).

“In Alabama, recognition of a common-law marriage requires proof of the following elements: (1) capacity; (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Stringer [v. Stringer], 689 So.2d [194,] 195 [ (Ala.Civ.App.1997) ], quoting Cros-son v. Crosson, 668 So.2d 868, 870 (Ala. Civ.App.1995), citing Boswell v. Boswell, 497 So.2d 479, 480 (Ala.1986). Whether the essential elements of a common-law marriage exist is a question of fact. Stringer, supra, citing Johnson v. Johnson, 270 Ala. 587, 120 So.2d 739 (1960), and Arrow Trucking Lines v. Robinson, 507 So.2d 1332 (Ala.Civ.App.1987). Whether the parties had the intent, or the mutual assent, to enter the marriage relationship is also a question of fact. See Mickle v. State, 21 So. 66 (1896).”

Id. at 194. Thus, M.W.F. contends that the trial court should conduct an evidentia-ry hearing in order to determine the validity of the mother’s claim of the existence of a common-law marriage that would bar M.W.F. from having standing to seek a paternity determination. We agree.

The mother’s submissions in support of her motion to dismiss — namely, the affidavits asserting that she was in a common-law marriage with M.L. — were not sufficient, alone, to warrant a dismissal under these facts. Parents have a fundamental right to the care and custody of their children. See E.H.G. v. E.R.G., 73 So.3d 614, 621 (Ala.Civ.App.2010) (“Among the fundamental rights protected by the Fourteenth Amendment is the right of fit natural parents to the care, custody, and control of their children.”). We hold that, under these facts, the potential right of M.W.F. to establish his paternity, and, therefore, his right to parent the child, is not defeated absent a full evidentiary hearing on the question of fact concerning the mother’s purported common-law marriage. The trial court must resolve the question of fact concerning the existence of a common-law marriage between the mother and M.L. before it can determine the issue of M.W.F.’s standing to seek a paternity adjudication under the AUPA. The mother has not shown a clear legal right to a writ ordering the trial court to dismiss M.W.F.’s paternity action. Accordingly, we deny the petition for a writ of mandamus.

PETITION DENIED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

      . The mother’s purported postjudgment motion did not operate to extend the time in which she could file her petition for a writ of mandamus. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003) (A post-judgment motion purportedly filed in reference to an interlocutory order does not toll the presumptively reasonable time in which a party may petition an appellate court for a writ of mandamus.).

      . The submission of the two affidavits in support of the mother’s motion to dismiss did not operate to convert the motion to dismiss to a summary-judgment motion. See Williams v. Skysite Commc'ns Corp., 781 So.2d 241, 245 (Ala.Civ.App.2000) (rejecting an argument that the submission of evidence in support of a motion to dismiss converted that motion to a summary-judgment motion and, in so holding, noting that "[ejvidentiary matters may be freely submitted on a motion to dismiss that attacks jurisdiction” (citing Committee Comments, Rule 12, Ala. R. Civ. P., and Williams v. Minnesota Mining & Mfg. Co., 14 F.R.D. 1 (S.D.Cal.1953))); see also Ex parte Burnell, 90 So.3d 708, 709 n. 1 (Ala.2012) (same).

      . The materials submitted to this court do not indicate the child’s date of birth.


source: Caselaw Access Project

author:
PER CURIAM.
      MOORE, Judge, THOMPSON, Presiding Judge,

license: Public Domain

text:
    Cheri Denise SPUHL v. Robert SPUHL.
    2120483.
    Court of Civil Appeals of Aabama.
    Jan. 17, 2014.
    Amy S. Creech of Rhodes & Creech, Huntsville, for appellant.

      William P. Burgess, Jr., and Rebekah L. Graham of William P. Burgess, Jr., P.C., Huntsville, for appellee.
   PER CURIAM.

This is the third time that Cheri Denise Spuhl (“the wife”) and Robert Spuhl (“the husband”) have been before this court in connection with the division of their marital property and the award of periodic alimony to the wife in their divorce case. See Spuhl v. Spuhl, 99 So.3d 339 (Ala.Civ. App.2012) (“Spuhl I ”); and Spuhl v. Spuhl, 120 So.3d 1071 (Ala.Civ.App.2013) (“Spuhl II”). In Spuhl I, this court reversed the judgment of the trial court as to the property division and the award of periodic alimony and remanded the cause for the trial court to exercise its discretion in dividing the parties’ marital assets, including the husband’s military-retirement benefits, and in awarding periodic alimony. 99 So.3d at 342.

In Spuhl II, the wife asserted that the trial court’s failure to divide the husband’s military-retirement benefits as a marital asset resulted in an inequitable division of the marital property. We agreed with the wife, noting that the purpose of a property settlement in a divorce action is to give “‘each spouse the value of [his or her] interest in the marriage.’ Spuhl II, 120 So.3d at 1075 (quoting PattiUo v. Pattillo, 414 So.2d 915, 917 (Ala.1982)). We explained:

“As to the 18-year marriage itself, the wife did not work outside of the home because of the responsibilities placed on her as a result of the husband’s career. The parties both testified that the wife played an integral role in furthering the husband’s military career. Moreover, the wife said that when the husband was required to be away from home for long periods, she oversaw all that was necessary to keep the household running, and she was the children’s caretaker. We conclude that the trial court’s failure to award the wife any part of the husband’s military-retirement benefits — by far the parties’ largest marital asset — resulted in an inequitable division of marital property. Accordingly, the judgment is due to be reversed.”

Id. at 1076. We then remanded the cause “for the trial court to equitably divide the marital assets” and, because the award of periodic alimony is considered in conjunction of marital property, Henderson v. Henderson, 800 So.2d 595, 597 (Ala.Civ. App.2000), “to reconsider its award of periodic alimony.” Id.

On the second remand, the trial court held a hearing, allowing the parties to argue their positions before entering another judgment. On February 1, 2013, the trial court awarded the wife $2,250 in monthly periodic alimony — the same amount of periodic alimony it had initially ordered in the original divorce judgment. It also awarded the wife, as periodic alimony, “an additional amount equal to 28% of the [h]usband’s disposable [military-]retirement benefits.” Subsequently, in response to the husband’s motion to alter, amend, or vacate the February 1, 2013, judgment, the trial court, on April 10, 2013, entered an amended judgment (“the April 2013 judgment”) reducing the wife’s periodic alimony to $1,600 a month. The trial court also awarded the wife 28% of the husband’s military-retirement benefits as a property settlement, as opposed to periodic alimony, payable to the wife each month when the husband received his retirement pay.

The wife appeals from the April 2013 judgment. In Spuhl I, we set forth the following facts relevant to this appeal:

“The parties married in January 1993. Two children (‘the children’) .were born of the marriage. The wife had two other children from a previous marriage; they were adults at the time of this action. At trial, the wife contended that the husband had an affair, which was continuing at the time of the trial, and that the affair was what had caused the breakdown of the marriage. The husband, on the other hand, testified that he had asked the wife for a divorce as early as 2004. The evidence indicated that the parties frequently argued, yelling at each other and calling each other vulgar names. At times, the arguments turned physical. The husband testified to an incident in which he and the wife were arguing and the wife ‘grabbed’ his genitals and then scratched him.
“When the parties married, the husband was in the United States Army. He had been in the army since December 1983. The husband retired from the army as a lieutenant colonel in 2005, and the family moved to Huntsville, where the husband worked as a civilian. At the time the husband filed this action, his gross monthly salary was $8,993.81. From his employer, the husband also earned bonuses, his cellular-telephone phone bill was paid, and, in 2010, he received a $4,800 distribution from his employer’s ‘SAR account.’ In addition, the husband received military-retirement benefits of $3,802 each month, which included a Veterans Affairs’ waiver of $376. The husband’s gross monthly income at the time of the trial was $14,951.14; his average monthly net income was $9,390.
“The wife did not work outside the home during the marriage. She testified that, because of the husband’s deployments, she was often the only person available to care for the children. The wife said that between running the household and her responsibilities as a military spouse, which included assisting other military spouses with any number of difficulties they may encounter, she found it impossible to have a career outside the home. At the time of the trial, the wife worked as a receptionist in a doctor’s office earning $11 hourly. She worked approximately 30 to 32 hours each week.
“The parties did not own any real property at the time of the trial. They testified as to their personal property; the value of their various bank accounts, retirement accounts, and insurance policies; their three vehicles; and their debt.
“After considering the evidence, the trial court entered a judgment dividing the parties’ personal property, their vehicles, and their various insurance policies, bank accounts, and retirement accounts, excluding the husband’s military-retirement benefits. The husband was ordered to pay the wife $2,250 each month in periodic alimony. The trial court stated that the amount of the wife’s periodic alimony was to be equal to 28% of the husband’s gross nondisa-bility military-retirement benefits.”

99 So.3d at 340.

As mentioned, on the second remand the trial court ultimately awarded the wife 28% of the husband’s “disposable [military-]retirement benefits.” The wife’s share of the benefits are payable to her directly from the United States Army as retirement benefits are paid to the husband. The trial court ordered the wife to receive those payments until the death of the husband, at which time the wife is to receive benefits pursuant to the Survivor Benefit Plan, as mandated by the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408. In addition to awarding the wife a portion of the husband’s military-retirement benefits, however, the trial court also reduced the amount of the wife’s monthly periodic alimony from $2,250 to $1,600. The wife filed this timely appeal.

“Our standard of review regarding a property division and an award of periodic alimony is well settled.
“ “When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala.Civ.App.2001); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala. Civ.App.1993); and Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish, 617 So.2d at 1038.’
“Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App.2009).
“ ‘The issues of property division and alimony are interrelated, and they must be considered together. Albert-son v. Albertson, 678 So.2d 118 (Ala. Civ.App.l99[5]). A property division is not required to be equal, but it must be equitable. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996). In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; them future prospects; their ages and health; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, [795 So.2d 729 (Ala.Civ.App.2001) ]; Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App. 1986). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of ..the marriage, even where the parties are divorced on the basis of incompatibility, or, as here, where the trial court failed to specify the grounds upon which it based its divorce judgment. Ex parte Drummond, 785 So.2d 358 (Ala.2000); Myrick v. Myr-ick, 714 So.2d 311 (Ala.Civ.App.1998); Lutz v. Lutz, supra.
“Pate v. Pate, 849 So.2d 972, 976 (Ala. Civ.App.2002).”

Spuhl II, 120 So.3d at 1074-75.

In this case, the wife asserts that the trial court erroneously based its award of periodic alimony on what it believed were the wife’s “reasonable and necessary” monthly expenses, rather than by considering other relevant factors such as the parties’ disparate incomes; their future prospects; their previous standard of living; and the reason for the breakdown of the marriage, which, she said, included the husband’s affair. See Pate, 849 So.2d at 976. In support of her assertion that the trial court used an improper standard in determining the amount of periodic alimony awarded to her, the wife points to the trial court’s explanation for awarding the wife $2,250 in periodic alimony in the original divorce judgment. In that judgment, the trial court wrote:

“Quite frankly, this court determined that both the [hjusband and the [wjife submitted an unreasonable and inflated monthly expense budget into evidence in the trial of this case; and had to determine the [wjife’s reasonable and necessary monthly expenses, and therefore, her need for support for herself from the [hjusband; her own ability to earn income with which to meet, at least partially, those reasonable and necessary monthly expenses; and the ability of the [hjusband to contribute to her support, taking into consideration the other significant financial obligations imposed on him in the [judgment], as well as his own reasonable and necessary monthly expenses .... ”

In Spuhl II, this court “remand[ed] this cause for the trial court to equitably divide the marital assets and to reconsider its award of periodic alimony.” 120 So.3d at 1076. This court noted:

“ ‘The issues of property division and alimony are interrelated, and they must be considered together. Albert-son v. Albertson, 678 So.2d 118 (Ala. Civ.App.l99[5]). A property division is not required to be equal, but it must be equitable. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996). In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages and health; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, [795 So.2d 729 (Ala.Civ.App.2001) ]; Lutz v. Lutz, 485 So.2d 1174 (AIa.Civ.App. 1986). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage.... Ex parte Drum-mond, 785 So.2d 358 (Ala.2000); Myr-ick v. Myrick, 714 So.2d 311 (Ala.Civ. App.1998); Lutz v. Lutz, supra.
“Pate v. Pate, 849 So.2d 972, 976 (Ala. Civ.App.2002).”

Id. at 1074-75.

The transcript of the proceedings conducted following the second remand shows that the trial court followed this court’s mandate in rendering the April 2013 judgment, i.e., the trial court divided the military-retirement benefits and correspondingly reconsidered the award of periodic alimony. The resulting awards are within the discretion afforded to the trial court. A trial court’s discretionary ruling must be affirmed if it is supported by “any credible evidence.” Ex parte D.W.W., 717 So.2d 793, 795 (Ala.1998). To reverse such a ruling, we must determine that the trial court “ ‘ “committed a clear or palpable error, without the correction of which manifest injustice will be done.” ’ ” D.B. v. J.E.H., 984 So.2d 459, 462 (Ala.Civ.App.2007)(quoting Clayton v. State, 244 Ala. 10, 12, 13 So.2d 420, 422 (1942), quoting in turn 16 C.J. 453). The record does not indicate that the property-division and alimony awards are clearly or palpably erroneous or that manifest injustice will result from the awards, and any correction of the awards by this court would require reweighing the evidence or substituting this court’s judgment for that of the trial court. Ex parte R.T.S., 771 So.2d 475, 476-77 (Ala.2000) (noting that the appellate court must not engage in fact-finding or “reweigh the evidence and substitute its judgment for that of the trial court”). The trial court’s awards might be different than the awards this court would have rendered, but, under these facts, they should be affirmed “regardless of our own view of that evidence or whether we would have reached a different result had we been the trial judge.” Young v. Young, 376 So.2d 737, 739 (Ala.Civ.App.1979) (citing Hawkins v. Hawkins, 346 So.2d 967 (Ala.Civ.App.1977)).

The husband’s request for an attorney fee on appeal is denied. The wife’s request for an attorney fee on appeal is also denied.

AFFIRMED.

PITTMAN, THOMAS, and DONALDSON, JJ., concur.

MOORE, J., concurs specially.

THOMPSON, P. J., dissents, with writing.

MOORE, Judge,

concurring specially.

In her third appeal to this court, Cheri Denise Spuhl (“the wife”) argues that the Madison Circuit Court (“the trial court”) erred (1) by using the wrong legal standard to determine the amount of periodic alimony to be paid to her by Robert Spuhl (“the husband”) and (2) by awarding her insufficient periodic alimony. I conclude that the wife has failed to demonstrate legal error as to either argument.

The trial court did not use an incorrect legal standard to determine the amount of periodic alimony it awarded to the wife. Recently, this court set out the standard to be used by trial courts in awarding periodic alimony:

“Under Alabama law, periodic alimony consists of regular installment payments made from one spouse to another to enable the recipient spouse, to the extent possible, to maintain his or her standard of living as it existed during the marriage, i.e., the ‘economic status quo.’ Orr v. Orr, 374 So.2d 895, 897 (Ala.Civ.App.1979)....
“... This court and our supreme court have enumerated the many factors trial courts must consider when weighing the propriety of an award of periodic alimony, Edwards v. Edwards, 26 So.3d 1254, 1259 (Ala.Civ.App.2009), which include: the length of the marriage, Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ. App.2009); the standard of living to which the parties became accustomed during the marriage, Washington v. Washington, 24 So.3d 1126, 1135-36 (Ala.Civ.App.2009); the relative fault of the parties for the breakdown of the marriage, Lackey v. Lackey, 18 So.3d 393, 401 (Ala.Civ.App.2009); the age and health of the parties, Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000); and the future employment prospects of the parties, Baggett v. Baggett, 855 So.2d 556, 559 (Ala.Civ.App.2003). In weighing those factors, a trial court essentially determines whether the petitioning spouse has demonstrated a need for continuing monetary support to sustain the former, marital standard of living that the responding spouse can and, under the circumstances, should meet. See Gates v. Gates, 830 So.2d 746, 749-50 (Ala.Civ.App.2002); Hewitt v. Hewitt, 637 So.2d 1382, 1384 (Ala.Civ.App.1994) (‘The failure to award alimony, although discretionary, is arbitrary and capricious when the needs of the wife are shown to merit an award and the husband has the ability to pay.’).
“A petitioning spouse proves a need for periodic alimony by showing that without such financial support he or she will be unable to maintain the parties’ former marital lifestyle. See Pickett v. Pickett, 723 So.2d 71, 74 (Ala.Civ.App. 1998) (Thompson, J., with one judge concurring and two judges concurring in the result). As a necessary condition to an award of periodic alimony, a petitioning spouse should first establish the standard and mode of living of the parties during the marriage and the nature of the financial costs to the parties of maintaining that station in life. See, e.g., Miller v. Miller, 695 So.2d 1192, 1194 (Ala.Civ.App.1997); and Austin v. Austin, 678 So.2d 1129, 1131 (Ala.Civ. App.1996). The petitioning spouse should then establish his or her inability to achieve that same standard of living through the use of his or her own individual assets, including his or her own separate estate, the marital property received as part of any settlement or property division, and his or her own wage-earning capacity, see Miller v. Miller, supra, with the last factor taking into account the age, health, education, and work experience of the petitioning spouse as well as prevailing economic conditions, see DeShazo v. DeShazo, 582 So.2d 564, 565 (Ala.Civ.App.1991), and any rehabilitative alimony or other benefits that will assist the petitioning spouse in obtaining and maintaining gainful employment. See Treusdell v. Treusdell, 671 So.2d 699, 704 (Ala.Civ.App.1995). If the use of his or her assets and wage-earning capacity allows the petitioning spouse to routinely meet only part of the financial costs associated with maintaining the parties’ former marital standard of living, the petitioning spouse has proven a need for additional support and maintenance that is measured by that shortfall. See Scott v. Scott, 460 So.2d 1331,1332 (Ala.Civ.App.1984).
“Once the financial need of the petitioning spouse is established, the trial court should consider the ability of the responding spouse to meet that need. See Herboso v. Herboso, 881 So.2d 454, 458 (Ala.Civ.App.2003). The ability to pay may be proven by showing that the responding spouse has a sufficient separate estate, following the division of the marital property, see § 30-2-51 (a), Ala. Code 1975, and/or sufficient earning capacity to consistently provide the petitioning spouse with the necessary funds to enable him or her to maintain the parties’ former marital standard of living. Herboso, supra. In considering the responding spouse’s ability to pay, the trial court should take into account all the financial obligations of the responding spouse, including those obligations created by the divorce judgment. See O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996). The trial court should also consider the impact an award of periodic alimony will have on the financial condition of the responding spouse and his or her ability to maintain the parties’ former marital lifestyle for himself or herself. Id. A responding spouse obviously has the ability to pay if the responding spouse can satisfy the entirety of the petitioning spouse’s needs without any undue economic hardship. See, e.g., MacKenzie v. Mac-Kenzie, 486 So.2d 1289, 1292 (Ala.Civ. App.1986). In most cases, however, simply due to the fact that, after separation, former spouses rarely can live as well and as cheaply as they did together, Gates, 830 So.2d at 750, a trial court will find that the responding spouse cannot fully meet the financial needs of the petitioning spouse. Walls v. Walls, 860 So.2d 352, 358 (Ala.Civ.App.2003). In those cases, the trial court should endeavor to determine the amount the responding spouse can fairly pay on a consistent basis. See Rubert v. Rubert, 709 So.2d 1283, 1285 (Ala.Civ.App.1998).
“After being satisfied that the petitioning spouse has a need for periodic alimony and that the responding spouse has some ability to meet that need, the trial court should consider the equities of the case. The length of the marriage does not determine the right to, or amount of, periodic alimony. Hatley v. Hatley, 51 So.3d 1031, 1035 (Ala.Civ. App.2010). However, the longer the parties have maintained certain living and financial arrangements, the more fair it will seem that those arrangements should be maintained beyond the divorce to the extent possible. See Edwards v. Edwards, 410 So.2d 91, 93 (Ala.Civ.App. 1982). The trial court should also give due regard to the history of the marriage and the various economic and non-economic contributions and sacrifices made by the parties during the marriage. See Hanna v. Hanna, 688 So.2d 887, 891 (Ala.Civ.App.1997). In light of those factors, the trial court should endeavor to avoid leaving the parties in an unconscionably disparate financial position. Jones v. Jones, 596 So.2d 949, 952 (Ala.Civ.App.1992). However, the trial court can consider whether the marriage, and its attendant standard of living, ended due to the greater fault of one of the parties, and, if so, the trial court can adjust the award accordingly. Yohey v. Yohey, 890 So.2d 160, 164-65 (Ala.Civ.App.2004). Lastly, the trial court should consider any and all other circumstances bearing on the fairness of its decision. See Ashbee v. Ashbee, 431 So.2d 1312, 1313-14 (Ala.Civ.App.1983).”

Shewbart v. Shewbart, 64 So.3d 1080, 1087-89 (Ala.Civ.App.2010).

In its first order entered on second remand, the trial court explicitly set out the manner in which it determined the amount of periodic alimony it awarded to the wife by stating that it

“had to determine the Wife’s reasonable and necessary monthly expenses, and, therefore, her need for support for herself from the Husband; her own ability to earn income with which to meet, at least partially, those reasonable and necessary monthly expenses; and the ability of the Husband to contribute to her support, taking into consideration the other significant financial obligations imposed on him in the Final Decree, as well as his own reasonable and necessary monthly expenses, in setting the amount of periodic alimony to be paid to her by the Husband.”

The trial court repeatedly reiterated that formula during the hearing on second remand. I find nothing in the language used by the trial court that violates Alabama law.

Pursuant to Shewbart, in awarding periodic alimony, a trial court may award only monetary support that is reasonably related to, and necessary for, maintaining the former marital standard of living. The trial court must also consider the ability of the responding spouse to pay periodic alimony based, in part, on the reasonable costs the responding spouse needs to expend in order to maintain the former marital standard of living for himself or herself. Nothing in the language used by the trial court indicates that it used the terms “reasonable and necessary monthly expenses” in some other more limited context, as the wife contends. More specifically, the wife has not demonstrated that the trial court considered only the basic necessities of life, such as food and rent, when determining the “reasonable and necessary monthly expenses” upon which the award of periodic alimony could be based. Rather, the judgment reflects that the trial court properly applied the correct standard from Shewbart by considering the reasonable amount of support the wife would need in order to meet the monthly expenses associated with maintaining the former marital standard of living as nearly as possible.

The trial court also did not commit legal error in awarding the wife $1,600 in periodic alimony.

“The determination of whether the petitioning spouse has a need for periodic alimony, of whether the responding spouse has the ability to pay periodic alimony, and of whether equitable principles require adjustments to periodic alimony are all questions of fact for the trial court, Lawrence v. Lawrence, 455 So.2d 45, 46 (Ala.Civ.App.1984), with the last issue lying particularly within the discretion of the trial court. See Nolen v. Nolen, 398 So.2d 712, 713-14 (Ala.Civ. App.1981). On appeal from ore tenus proceedings, this court presumes that the trial court properly found the facts necessary to support its judgment and prudently exercised its discretion. G.G. v. R.S.G., 668 So.2d 828, 830 (Ala.Civ. App.1995). That presumption may be overcome by a showing from the appellant that substantial evidence does not support those findings of fact, see § 12-21-12(a), Ala.Code 1975, or that the trial court otherwise acted arbitrarily, unjustly, or in contravention of the law. Dees v. Dees, 390 So.2d 1060, 1064 (Ala.Civ. App.1980).”

Shewbart, 64 So.3d at 1089. Those principles of appellate review require affirmance of the award in this case. The trial court reasonably could have concluded, under the evidence presented and the equities of the case, that the husband should pay the wife no more than $1,600 a month in periodic alimony.

The wife introduced an exhibit in which she claimed that she would incur $5,000 per month in expenses; however, the trial court expressly concluded that the wife had inflated her budget and that her needs were actually less than as set out in her exhibit. Nothing in the record indicates that the trial court exceeded its discretion in making that determination. Hence, this court cannot assume that the wife needs $5,000 per month in order to maintain the former marital standard of living. The wife has also failed to show that the trial court committed error by adjusting her periodic alimony downward from $2,250 to $1,600 per month following its decision to award her a portion of the husband’s military-retirement benefits as a property settlement. This court’s holding in Shewbart specifically provides that, when determining periodic alimony, a trial court must consider the impact of any property settlement on the ability of the petitioning spouse to meet his or her financial need. 64 So.3d at 1088. The trial court followed the law when it reduced the periodic-alimony award to account for the property settlement it awarded to the wife. The trial court could have determined that the periodic-alimony award should remain the same as before, but it certainly did not exceed its discretion in concluding otherwise.

The wife pointedly argues that the trial court should have found the facts differently in order to increase the periodic-alimony award. The evidence was in much dispute as to the cause of the breakdown of the marriage and other equitable factors affecting the periodic-alimony award. As the main opinion correctly notes, this court cannot reweigh the evidence to overrule the trial court’s determination of the facts. 144 So.3d at 401. Therefore, I concur that the judgment should be affirmed.

THOMPSON, Presiding Judge,

dissenting.

I believe the judgment of the trial court awarding Cheri Denise Spuhl (“the wife”) 28% of the military-retirement benefits of Robert Spuhl (“the husband”) but reducing the amount of the wife’s periodic-alimony award from $2,250 to $1,600 each month is plainly and palpably wrong. Therefore, I respectfully dissent from the main opinion.

Pursuant to the applicable ore tenus standard of review, “ ‘a judgment based on findings of fact based on [ore tenus] testi- ■ mony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.’ ” Smith v. Muc-hia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)). Furthermore, a presumption of correctness attaches to the trial court’s conclusions regarding issues of fact, and this court will not disturb those conclusions unless they are clearly erroneous and against the great weight of the evidence. See Fort Morgan Civic Ass’n v. City of Gulf Shores, 100 So.3d 1042, 1045 (Ala.2012). I believe the conclusions the trial court reached as the basis for its award to the wife of periodic alimony and a portion of the husband’s military-retirement benefits are clearly erroneous and against the great weight of the evidence.

The record indicates that both parties were 48 years old at the time of the trial. During the parties’ 18-year marriage, the wife did not pursue a career outside the home so that she could move with the husband each time he was stationed somewhere new and so that she could fulfill the responsibilities her husband’s career demanded of her as a military wife. She also managed the parties’ household and was the only parent available to care for their children when the husband’s job required him to be away from home for long periods. The husband acknowledged the wife’s contribution to his career. Evidence also indicates that both parties share the blame for the breakdown of the marriage.

The trial court determined that, at the time of the trial, the husband, who has a master’s degree in “space operations program management,” was earning a net monthly income of approximately $9,390 and was earning a gross monthly income of $14,951.14. The wife, who has an associate’s degree, was working as a receptionist at a doctor’s office earning $11 an hour and working 30 to 32 hours each week. The trial court determined that the wife’s gross monthly income was $1,430. In other words, the husband’s gross monthly income is more than ten times greater than the wife’s gross monthly income.

At trial, the wife presented evidence indicating that her monthly expenses were more than $5,000. The husband presented evidence indicating that his monthly expenses, including his child-support obligation, were approximately $7,050, $1,500 of which is attributable to child support. The husband testified that his health is poor, but he offered no corroborating evidence. Even if I were to assume that the husband does have health issues, he still earns significantly more income than does the wife. In considering the parties’ respective incomes, educations, earning potentials, and their lifestyle before the divorce, I find no evidence to support the trial court’s decision to reduce the wife’s award of periodic alimony from $2,250 to $1,600.

I recognize that a division of marital property and an award of periodic alimony are to be considered together. See Pate v. Pate, 849 So.2d 972, 976 (Ala.Civ.App. 2002). However, the division of marital property and the awarding of periodic alimony serve two separate functions. In Spuhl v. Spuhl, 120 So.3d 1071, 1075 (Ala. Civ.App.2013) (“Spuhl IP’), this court stated that the purpose of a property settlement in a divorce action, that is, the division of marital property, is intended to give “ ‘each spouse the value of [his or her] interest in the marriage.’ ” (Quoting Pat-tillo v. Pattillo, 414 So.2d 915, 917 (Ala. 1982).) On the other hand, periodic alimony

“ ‘is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].’ [Hager v. Hager], 293 Ala. [47] at 55, 299 So.2d [743] at 750 [ (1974) ]. Its purpose ‘is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.’ O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App. 1996) (emphasis added).”

TenEyck v. TenEyck, 885 So.2d 146, 152 (Ala.Civ.App.2003).

In Spuhl II, we held that denying the wife a share of the husband’s military-retirement benefits — the parties’ largest marital asset — resulted in an inequitable division of marital property because it deprived the wife from receiving an equitable share of her interest in the marriage. 120 So.3d at 1076. I do not believe that providing her with that equitable share can come at the expense of reducing the periodic alimony intended to support her and to allow her, to the extent possible, to maintain the status she enjoyed during the marriage.

In reviewing the record in its entirety, I conclude that the amount of periodic alimony and the portion of the husband’s military-retirement benefits awarded to the wife as part of the division of marital property is inequitable under the circumstances in this case. Accordingly, I would reverse that portion of the judgment reducing the wife’s periodic alimony to $1,600 a month.


author: THOMPSON, Presiding Judge.

text:
    Jimmie L. HOLIFIELD v. Shirley J. LAMBERT.
    2120607.
    Court of Civil Appeals of Alabama.
    Jan. 17, 2014.
    Jeffery D. Toney, Sr., Crestview, Florida, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. See Holifield v. Lambert, 112 So.3d 489 (Ala.Civ.App. 2012). In Holifield, we set out the procedural history of the underlying action:

“This appeal from a judgment of the Jefferson Circuit Court arises out of efforts on the part of Jimmie L. Holifield (‘the father’) to set aside a judgment of the Jefferson Family Court entered in favor of Shirley J. Lambert (‘the mother’) on her child-support-arrearage claim against the father stemming from a 1971 judgment of paternity entered by a Wisconsin court specifying the father’s support obligations as to a child born of the parties in December 1968. According to Wisconsin authorities, the father’s combined indebtedness, including interest, to the mother and the State of Wisconsin as a function of his having failed to fully comply with the support provisions of that paternity judgment had swelled to over $105,000 as of November 2007.
“The matter was referred to the Jefferson County Department of Human Resources (‘DHR’), which, on relation of the mother, filed a complaint in the Jefferson Family Court seeking a money judgment against the father as to that arrearage. That case was docketed in that court as case number CS-08-806. We note that actions concerning child support generally, and in particular cases filed in the Jefferson Family Court and docketed with a case number having a ‘CS’ prefix, are governed by the Alabama Rules of Juvenile Procedure. See generally H.J.T. v. State ex reí. M.S.M., 34 So.3d 1276, 1278 (Ala.Civ.App.2009), and M.C. v. L.J.H., 868 So.2d 465, 467 (Ala.Civ.App.2003).
“Although the father filed a motion to dismiss the mother’s family-court action, that court denied his motion and entered a judgment on June 16, 2009, against the father in the amount of $105,136.99. No appeal was taken from that judgment; however, in April 2010, after the mother had filed a petition seeking to hold the father in contempt and seeking to execute on the judgment, the father filed a motion in the family court seeking to have the judgment set aside as void under Rule 60(b)(4), Ala. R. Civ. P. That motion was denied on July 29, 2010. On August 10, 2010, within 14 days after the entry of the order denying the father’s motion pursuant to Rule 60(b), the father timely appealed from that order to the Jefferson Circuit Court for de novo review....
“In the father’s appeal, which was assigned case number DR-10-1192, the father again sought a dismissal of the mother’s claims against him and requested that the circuit court take judicial notice of orders entered in an earlier family-court case involving the parties. The circuit court denied the father’s motions raising those issues. On November 14, 2011, the circuit court, after having held a hearing on the matter, entered a final judgment denying relief as to the father’s appeal and remanding the cause to the family court for the entry of any further necessary orders. No postjudgment motions were filed in the circuit court following the entry of the November 14, 2011, judgment.”

112 So.3d at 490-91 (footnotes omitted). In Holifield, the father filed a notice of appeal of the circuit court’s judgment well in excess of the 14-day period allowed by the Rules of Juvenile Procedure. Accordingly, this court dismissed the appeal as untimely. 112 So.3d at 491.

While the father’s appeal in Holi-field was pending, the mother, alleging that the father had failed to obtain a stay of the November 14, 2011, circuit-court judgment, moved the Jefferson Family Court (“the family court”) to issue an order seizing certain assets of the father’s in satisfaction of the June 16, 2009, child-support-arrearage judgment entered in that court. On March 18, 2013, the mother filed a petition for a rule nisi, seeking to have the father held in contempt for his violation of a June 2012 order of the circuit court, which was entered while the father’s appeal of the denial of his Rule 60(b) motion in that court was pending; that June 2012 circuit-court order prohibited the father from disposing of certain financial assets. In her petition for a rule nisi, the mother requested the award of an attorney fee.

The father moved to dismiss the action in the family court, arguing that the “matter was resolved and satisfied in February 1988” and that, in a June 7, 1996, order, the family court had determined that it lacked jurisdiction over the parties.

The family court conducted an ore tenus hearing. The majority of the transcript of that hearing sets forth the arguments of the parties’ attorneys concerning the issues presented to the family court. The only witness to testify was the mother’s attorney, who testified in support of the mother’s claim seeking an award of an attorney fee.

On April 2, 2013, the family court entered a judgment in which it, among other things, denied the father’s motion to dismiss, found the father in civil contempt and ordered him to pay $10,000 to purge himself of that contempt, redetermined the current child-support-arrearage amount, and awarded the mother an attorney fee in the amount of $25,000. The father timely appealed.

On appeal, the father raises a legal argument pertaining to the contempt finding, and he challenges whether the evidence supports the award of the attorney fee to the mother. In her petition for a rule nisi filed in the family court, the mother specifically focused on the father’s purported violation of the June 2012 order of the circuit court. In Holifield, supra, this court noted that, as an action filed in the family court concerning the enforcement of an out-of-state paternity and child-support judgment, this action is governed by Alabama Rules of Juvenile Procedure. See also J.F. v. R.J., 59 So.3d 719, 721 n. 1 (Ala.Civ.App.2010) (“The case was docketed with a ‘CS’ case number, which indicates that the matter involves a juvenile-court child-support matter.”). Thus, we conclude that, in addressing this matter, the family court in this case acted in its capacity as a juvenile court. See Ex parte L.N.K., 64 So.3d 656, 657-58 (Ala.Civ.App. 2010) (“[T]he Jefferson Family Court acted as the juvenile court for the Tenth Judicial Circuit.”).

“Juvenile courts are purely creatures of statute and have extremely limited jurisdiction.” T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.2009). The statutes governing the jurisdiction of the juvenile courts provide that “the juvenile court may punish a person for contempt of court for disobeying an order of the juvenile court or for obstructing or interfering with the proceedings of the juvenile court or the enforcement of its orders.” § 12-15-110(a), Ala.Code 1975. Thus, the family court could properly find the father in contempt for violating one of its own orders, but it could not find the father in contempt for violating an order of the circuit court.

In its April 2, 2013, judgment, the family court found the father “in civil contempt,” but it did not specify the basis for that finding. Thus, this court is unable to determine whether the family court found that the father had violated the provisions of the circuit-court order, which the family court lacked jurisdiction to do.

During the hearing in this matter, the mother’s attorney argued that the father had failed to make any payment toward the satisfaction of the 2009 arrearage judgment. The father made no objection to the assertion of that claim. Therefore, it is possible that the family court based its finding of contempt on the father’s failure to comply with earlier orders of that court establishing the amounts due rather than on the father’s violation of the circuit-court order. We recognize that this court may affirm a judgment that is correct for any reason. See Boykin v. Magnolia Bay, Inc., 570 So.2d 639, 642 (Ala.1990) (holding that, generally, a correct judgment may be affirmed for any reason). However, because the failure to specify the basis for the contempt finding might implicate the jurisdiction of the family court, this court declines, under the facts of this case, to affirm on that basis. Further, we note that the family court did not receive evidence but, rather, relied on the arguments and representations of the parties’ attorneys in reaching that part of its judgment pertaining to its contempt finding.

We reverse the family court’s judgment and remand the case to that court to determine whether it has jurisdiction to consider the mother’s contempt claim and, if so, to specify whether its contempt finding is based on a violation of an order of that court. We pretermit any analysis of the father’s arguments pertaining to the attorney-fee award. However, we note that the award of an attorney fee to the mother was based in part on her prevailing in the family court on the contempt claim. Accordingly, the family court may reconsider that award in connection with its determination of the contempt issue on remand.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

      . In this opinion, we use the same defined terms and designations we used in Holifield.