author: STUART, Justice.

text:
    EX PARTE CITY OF HOMEWOOD et al. (In re: Bria Mines v. City of Homewood et al.)
    1151310
    Supreme Court of Alabama.
    March 24, 2017

      Thomas S. Hale and Richard D. Whitaker of Hale Sides LLC, Birmingham, for petitioners.
    Huel M. Carter, Nathan B. Carter, and Parker B. Simpson of The Carter Law Firm, LLC, Fultondale, for respondent.
   STUART, Justice.

Officer J.C. Clifton and Officer Jason Davis, law-enforcement officers for the City of Homewood, and the City of Home-wood petition this Court for a writ of mandamus directing the Jefferson Circuit Court to enter a summary judgment in their favor on the ground of immunity. We grant the petition and issue the writ.

Facts and Procedural History

In December 14, 2013, Officer Clifton and Officer Davis were dispatched to the Babies “R” Us specialty retail store located in the Wildwood Shopping Center in response to a shoplifting incident involving Bristinia Fuller and Bria Mines. When the officers arrived, they learned that Fuller and Mines were leaving the parking lot of the store in a vehicle being driven by Fuller. Officer Clifton and Officer Davis, driving separate patrol cars, attempted to stop the vehicle. Instead of stopping, Fuller eluded the officers by speeding through the parking area and onto Lakeshore Drive. The officers pursued. Fuller continued speeding on Lakeshore Drive and ran through multiple red traffic lights before losing control of her vehicle while attempting to turn onto Oxmoor Road. Fuller’s vehicle struck a light pole and a vehicle stopped at the intersection. Fuller was killed and Mines was' seriously injured.

On December 13, 2015, Mines sued Officer Clifton and Officer Davis, both in their .official and individual capacities; Home-wood; and others not before this Court .in the petition. Mines alleged that she was injured as a result of the negligent, reckless, and/or wanton conduct of the officers and Homewood during the officers’ pursuit of Fuller’s vehicle. She also alleged that Homewood was vicariously liable for the officers’ conduct and was negligent in hiring and supervising the officers. Mines served interrogatories with the complaint.

On March 11, 2016, Homewood, Officer Clifton, and Officer Davis moved to dismiss the claims against them on the bases that Homewood was statutorily immune from the • wantonness claim, see § 11-47-190, Ala. Code 1975; that the claim alleging negligent training and supervision against Homewood was not a cognizable claim, see Ott v. City of Mobile, 169 F.Supp.2d 1301 (S.D. Ala. 2001); that Alabama does not recognize an independent cause of action for liability arising out of a law-enforcement officer’s pursuit of a. criminal suspect, see Ex parte Brown, 182 So.3d 495 (Ala. 2015), Gooden v. City of Talladega, 966 So.2d 232 (Ala. 2007), and Doran v. City of Madison, 519 So.2d 1308 (Ala. 1988); that the officers are entitled to peace-officer immunity (§' 6-5-640, Ala. Code 1975); that the officers are entitled to State-agent immunity, see Ex parte Hayles, 852 So.2d 117 (Ala. 2002), and Hollis v. City of Brighton, 950 So.2d 300 (Ala. 2006); and that all of Mines’s claims are barred by Fuller’s intervening criminal acts, see Gooden, supra, and Prill v. Marrone, 23 So.3d 1 (Ala. 2009).

Homewood, Officer Clifton, and Officer Davis attached to the motion to dismiss a copy of a video recording of the pursuit and Fuller’s accident made by the dashboard camera in Officer Clifton’s vehicle. The video recording indicates that the officers were engaged in a high-speed pursuit of Fuller’s vehicle, that Officer Clifton was driving the lead vehicle 'in pursuit of Fuller’s vehicle, that’Fuller was driving recklessly, and that, as Mines stated in her complaint, “Fuller lost control of the vehicle while attempting to turn onto Oxmoor Road [and] struck a pole and another vehicle.” The video recording shows Officer Clifton slowing his vehicle at times during the pursuit to safely negotiate the traffic and shows that, although law-enforcement vehicles were pursuing Fuller’s vehicle, no law-enforcement vehicle made contact with Fuller’s vehicle during the pursuit. Indeed, the video recording establishes unequivocally that no law-enforcement vehicle was near Fuller’s vehicle when Fuller attempted to turn onto Oxmoor Road and struck a light pole and another vehicle.

On May 9, 2016, Mines filed her opposition to the motion to dismiss, maintaining that because Homewood, Officer Clifton, and Officer Davis had relied on matters outside the pleadings in their motion, the motion to dismiss had been converted to a summary-judgment motion. She argued that because the motion had been converted to a summary-judgment motion she needed a reasonable opportunity to discover evidence and to respond. Mines did not attach an affidavit proffering what she expected discovery to reveal, and she did not challenge the authenticity of the video recording.

On July 6,.2016, the-trial court conducted a hearing on the motion to dismiss.

On August 4, 2016, Mines moved the trial court to order Homewood, Officer Clifton, and Officer Davis to answer the interrogatories she had served with her complaint.

On August 10, 2016, the trial court ordered:

“This matter comes before the court on the defendants’ motion to dismiss under Rule 12(b)(6) of the Ala. R. Civ. P. Since the defendants request that this court consider matters outside the pleadings, the court will treat this motion as a motion for summary judgment under Rule 56 of the Ala. R. Civ. P..
“Is therefore ORDERED, ADJUDGED, and DECREED that the defendants’ motion for summary judgment is hereby DENIED.
■ “Both parties are hereby informed that the court will again entertain those issues presented in the defendants’ motion after the discovery phase of this litigation, upon the filing of a properly crafted motion.” .

On August 19, 2016, Homewood, Officer Clifton, and Officer Davis moved the trial court to alter, amend, or vacate the order denying their motion, arguing that the trial court erred in not entering a summary judgment in their favor because, they said, they were entitled to immunity from liability as a matter of law and that, in light of the video recording, discovery would not establish otherwise. They pointed out that Mines did not identify what specific discovery was necessary to respond to any of the grounds asserted in their motion. On September 13, 2016, the trial court conducted a hearing on the motion to alter, amend, or vacate. Mines argued that additional discovery was needed but again did not state what evidence she expected discovery to reveal that would create a genuine issue of material fact with regard to the issue of immunity.

On September 21, 2016, Homewood, Officer Clifton, and Officer Davis timely petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying'their motion for a summary judgment and to enter a summary judgment in their favor. On January 8, 2017, Mines filed her response to the petition.

Standard of Review
“ ‘ “This Court has stated: =
“‘“‘“While the general rule is that the denial of a motion for summary judgment .is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala. 1996)....
(t < « < « 3) i
“ ‘ “Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002)(quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala. 2000)). A writ of mandamus is an extraordinary remedy available only when the petitioner, can, demonstrate: ‘“(1) a clear legal right 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) the properly invoked jurisdiction of the court.’” Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003)(quoting Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)).”
“ ‘Ex parte Yancey, 8 So.3d 299, 303-04 (Ala. 2008).’
“Ex parte Jones, 52 So.3d 475, 478-79 (Ala. 2010).
“ ‘In reviewing a trial court’s ruling on a motion for a summary judgment, we apply the same standard the trial court applied initially in granting or denying the motion. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala. 1999).
“ ‘ “The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(3); Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.”
“ ‘742 So. 2d at 184. “[Substantial evidence is 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).’
“Swan v. City of Hueytown, 920 So.2d 1075, 1077-78 (Ala. 2005).”

Ex parte Brown, 182 So.3d 495, 502 (Ala. 2015).

Discussion

Officer Clifton and Officer Davis contend that the trial court erred in refusing to enter a summary judgment in their favor because, they say, at the time of the accident they were acting as agents of the State, that none of the exceptions to State-agent immunity apply, and that, therefore, they are entitled to immunity from suit by Mines, pursuant to § 6-5-338(a), Ala. Code 1975.

In Ex parte City of Midfield, 161 So.3d 1158, 1163-64 (Ala. 2014), this Court recognized:

“ ‘Section 6-5-338(a)[, Ala. Code 1975,] provides:
“ ‘ “Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state ... and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.”
“ ‘The restatement of State-agent immunity as set out by this Court in Ex parte Cranman, [792 So.2d 392 (Ala. 2000) ], governs the determination of whether a peace officer is entitled to immunity under § 6-5-338(a). Ex parte City of Tuskegee, 932 So.2d 895, 904 (Ala. 2005). This Court, in Cran-man, stated the test for State-agent immunity as follows:
“‘“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“ ‘ “(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; ...
“‘“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“ ‘ “(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“ ‘ “(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”
“ ‘Cranman, 792 So.2d at 405. Because the scope of immunity for law-enforcement officers set forth in § 6-5-338(a) was broader than category (4) of the restatement adopted in Cranman, this Court, in Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala. 2006), expanded and modified category (4) of the Cranman test to read as follows:
“““A State agent,.shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the - claim against the agent is based upon the agent’s
“ ‘ “ ‘(4) exercising judgment .in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala. Code 1975.’ ”
“ ‘Hollis, 950 So.2d at 309. Additionally:
“ ‘ “ ‘This Court has established a “burden-shifting” process when a party raises the defense of State-agent immunity.’ Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala. 2006). A 'State ' agent asserting State-agent immunity ‘bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity.’ 946 So.2d at 452. Should the State agent make such a showing, the burden then shifts to the plaintiff to show that one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable.

“Ex parte City of Montgomery, 99 So.3d 282, 291-94 (Ala. 2012) (quoting Ex parte Kennedy, 992 So.2d 1276, 1282-83 (Ala. 2008)).”

Thus, for Officer Clifton and Officer Davis to demonstrate that they are entitled to immunity from Mines’s claims against them in their official and individual capacities, they must establish (1) that they were peace officers (2) performing law-enforcement duties at the time of the accident and (3) exercising judgment and discretion. If they can do so, the burden then shifts to Mines to show that one of the Cranman exceptions applies. If Mines does not satisfy this burden, then the officers are entitled to immunity.

With regard to the first two factors to determine immunity, the materials before it's establish that it is undisputed that Officer Clifton and Officer Davis were employed as law-enforcement officers by Homewood; therefore, they are “peace officers” for the purposes of § 6-5-338(a), Ala. Code 1975. Additionally, the parties agree that Officer Clifton and Officer Davis were performing law-enforcement duties at the time of the accident. Therefore, no genuine issue of fact exists as to the first two factors.

With regard to the third factor determining immunity — whether the officers were exercising proper judgment and discretion — in Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala. 2006), this Court held that arresting or attempting to arrest an individual is a discretionary function. It is undisputed that Officer Clifton and Officer Davis pursued Fuller’s vehicle in an attempt to arrest Fuller and Mines for allegedly shoplifting. Additionally, the video recording establishes that the officers were engaged in a high-speed pursuit of Fuller’s vehicle, that Fuller was driving recklessly, that no law-enforcement vehicle made any contact with Fuller’s vehicle during the pursuit, and that no law-enforcement vehicle was near Fuller’s vehicle when Fuller attempted to turn onto Oxmoor Road and struck a light pole and another vehicle. The video recording demonstrates that the officers were exercising discretion and judgment during the pursuit of Fuller’s vehicle. See Doran v. City of Madison, 519 So.2d 1308, 1314 (Ala. 1988)(quoting Madison v. Weldon, 446 So.2d 21, 28 (Ala. 1984), quoting in turn City of Miami v. Horne, 198 So.2d 10, 13 (Fla. 1967))(“ ‘ “The rule governing the conduct of [a] police [officer], in pursuit of an- escaping offender is that he must operate his vehicle with due care and in doing so he is not responsible for the acts of the offender. Although pursuit may contribute to the reckless driving of the pursued, the officer is not obliged to allow him to escape.’” (Emphasis added.)”). Therefore, Officer Clifton and' Officer Davis satisfied them burden of showing the third factor for immunity.

Because the -materials submitted by the officers established that they qualified for immunity, the burden then shifted to Mines to show that one of the tw;o Cran-man exceptions to immunity applied.

In her complaint, Mines alleged that Officer Clifton and Officer Davis

“acted beyond their authority as police officers employed by [Homewood], in derogation of and/or under a mistaken .interpretation of the laws enacted and/or promulgated for the purpose of regulating the boundaries of permissible activities of law enforcement personnel in the manner in which they allowed the police cruisers to pursue the vehicle driven by [Fuller] and .also. .occupied by [Mines].”

Mines offered nothing to refute the evidence of the officers’ appropriate conduct captured by the dashboard camera of the police vehicle, nor did Mines proffer any facts in. her complaint to contradict the facts developed in the pleadings.

Instead of addressing the merits of the summary-judgment motion, that is, refuting the evidence of the officers’ appropriate conduct captured on the dashboard camera, Mines made the conclusory argument that, because the officers had not responded to her requests for discovery, she needed time to gather evidence before addressing the motion. In effect, Mines moved, pursuant to Rule 56(f),’ Ala. R. Civ. P., for a continuance to permit discovery of evidence to oppose the motion. Mines did not support her motion with an affidavit proffering any facts she expected from the requested discovery that would contradict the facts developed and show that a genuine issue of material fact existed with regard to whether the officers were -entitled to immunity.

In Reeves v. Porter, 521 So.2d 963 (Ala. 1988), this Court addressed the propriety of a trial court entering a summary judgment for the defendants before the defendants had complied with discovery requests, stating:

“The mere pendency of discovery does not bar summary judgment. If the trial court from the evidence before it, or the appellate court from the record, can ascertain that the matter subject to production' was crucial to the non-moving party’s case (Parrish v. Board of Commissioners of Alabama State Bar, 533 F.2d 942 (5th Cir. 1976)) or that the answers to the interrogatories were crucial to the non-moving party’s case (Noble v. McManus, 504 So.2d 248 (Ala. 1987)), then it is error for the trial court to grant summary judgment before the items have been .produced or the answers given.. However, the burden of showing that these items are crucial is upon the non-moving party. He can do so by complying with Rule 56(f), Ala. R. Civ. P., Water View Developments, Inc. v. Eureka, Inc., 512 So.2d 916 (Ala. 1987). Rule 56(f) provides: ‘Should it appear from the affidavits of a party opposing the motion that he eannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.’[] A pending motion to compel production (Parrish, supra) and a motion to compel answers to interrogatories, which has been granted (Noble, supra) when the evidence before the court clearly shows that the evidence sought is crucial to the non-moving party’s case, have been held sufficient compliance with Rule 56(f). However, when no such crucial evidence would be supplied by the production or by the answers to the interrogatories, it is not error for the trial court to grant summary judgment with discovery pending. Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525 (11th Cir. 1983); Noble v. McManus, supra. In Wallace, Judge Kravitch noted; ‘Most, if not all, cases involving a Rule 56(f) issue will be factually dissimilar. For this very reason, a blanket rule would be inappropriate.’ 703 [F.]2d at 528. The burden is upon the non-moving party to comply with Rule 56(f) or to prove that the matter sought by discovery is or may be crucial to the non-moving party’s case....”

521 So.2d at 965 (emphasis added).

Here, in light of the caselaw with regard to immunity and law-enforcement^ officer pursuit of a suspect and the evidence presented in the video recording, Mines’s argument that additional discovery is required before she can address the summary-judgment motion is not supported by the record and is unpersuasive. Mines did not attach an affidavit to her opposition to the summary-judgment motion explaining what she expected the requested discovery to reveal with regard to her contention that, the officers were not entitled to immunity and why the discovery .was crucial to her ability to oppose the.officers’ immunity argument. For example, Mines did not assert that the requested discovery will demonstrate that Officer Clifton and Officer Davis did not act as “reasonably prudent emergency driver[s] exercising [their] discretion .under the prevailing circumstances” Blackwood v. City of Hanceville, 936 So.2d 495, 507 (Ala. 2006), or that the discovery would show that the officers were acting “willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law,” Ex parte Cranman, 792 So.2d 392] 405 (Ala. 2000). To the extent that Mines may have asserted that additional discovery will show that Officer Clifton and Officer Davis “caused” Fuller to lose control of her vehicle, the video quite clearly establishes otherwise. The video recording demonstrates that the officers were exercising due care in the operation of their vehicles and were not responsible for Fuller’s actions. Doran, supra. In light of the evidence presented in the video recording, Mines cannot demonstrate through additional discovery that a genuine issue of material fact' exists with regard to the immunity of Officer Clifton and Officer Davis.

The trial court had before it evidence that clearly showed the accident and the surrounding circumstances. Additionally, the evidence clearly showed that the officers were engaged in conduct that qualifies for immunity and that the officers were not the proximate cause of .Mines’s injuries. Mines did not refute this evidence, nor did she proffer any evidence indicating that additional discovery would challenge the officers’ immunity defense. Therefore, the trial court erred in denying Officer Clifton and Officer Davis’s summary-judgAient motion based on immunity.

Likewise, the materials before us demonstrate that Homewood is entitled to- immunity. Section 6-5-338(b), Ala. Code 1975, provides that the immunity enjoyed by peace officers extends to “governmental units or agencies authorize^ to appoint peace officers.” See also Ex parte City of Gadsden, 781 So.2d 936 (Ala. 2000)(holding that because the officer’s decision to pursue the suspect was a discretionary act entitled to immunity, the plain language of § 6-5-338(b), Ala. Code 1975, extended that immunity to the municipality that employed thei officer). Accordingly, because Officer Clifton and Officer Davis were engaged in a discretionary act entitling them to immunity from Mines’s suij;, Homewood, the municipality that employed them, is also entitled to immunity ⅜-om Mines’s suit.

Conclusion

Officer' Clifton and Officer Davis have established! that they are entitled to immunity as to Mines’s claims against them in both their official and individual capacities. Moreover, because Officer Clifton and Officer Davis are entitled to immunity, Home-wood is also entitled to immunity. Officer Clifton, Officer Davis, and Homewood have demonstrated a clear, legal right to a summary judgment in their favor. Therefore, we grant their petition and issue the writ, directing the trial court to pnter a summary judgment for Officer Clifton, Officer Davis, and Homewood.

PETITION GRANTED; WRIT ISSUED.

Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur.

      . The others were Fuller’s estate and ACCC Insurance Company. The claim against ACCC was dismissed on April 8, 2016.

      . Mines did not attach a copy of the interrogatories to her response to the petition for the writ of mandamus.

      . Rule 56(f), Ala. R. Civ. P., was amended effective August 1, 1992; and no longer reads exactly as quoted here,


source: Caselaw Access Project

author: THOMAS, Judge. MOORE, Judge, THOMPSON, Presiding. Judge,

license: Public Domain

text:
    Dawn Elizabeth RODGERS v. Robert Joseph RODGERS
    2141052.
    Court of Civil Appeals of Alabama.
    May 13, 2016.
    Rehearing Denied July 29, 2016
    Certiorari Denied March 10, 2017
    Alabama Supreme Court 1151161

      Dinah P. Rhodes of Rhodes & Creech, L.L.C., Huntsville, for appellant.
    ■ Joan-Marie Sullivan, Huntsville, for. ap-pellee. ,
   THOMAS, Judge.

Dawn Elizabeth Rodgers (“the wife”) and Robert Joseph Rodgers (“the husband”) were married in December 1991. The parties have two children. The parties separated in May 2012, when the wife moved out of the marital residénce; however, the testimony at trial established that the parties had not had marital relations in quite some time before the wife left the marital residence.

The wife filed in the Madison Circuit- Court a complaint seeking a divorce in August 2014. The parties settled several aspects of the divorce, including dividing the husband’s various retirement and/or investment accounts, the parties’ several automobiles, and their personal property; At the trial, which was held in April 2015, the trial court considered, among other things, the issues of custody, child support, periodic alimony, and the division of the marital residence. On July 1, 2015, the trial court entered a judgment of divorce, which, among other things, incorporated the parties’ settlement agreement, awarded the parties joint custody of the children, ordered the husband to pay $1,418 per month in child support, ordered the marital residence to be sold and the proceeds, after certain deductions, including an award to the husband of an amount equal to half of the 2015 income-tax refund procured by the wife, to be divided equally. The judgment did not order the husband to pay the wife alimony, reserve the issue of periodic alimony, or require the husband to purchase life insurance naming the wife as beneficiary. The wife filed a postjudgment motion, arguing several issues; the trial court amended the judgment to order the husband to secure life insurance naming the wife as beneficiary and reserved the issue of periodic, alimony but left all other aspects of the July 1, 2015, judgment unchanged. The wife, has appealed the judgment, arguing that the trial court erred by not awarding her periodic alimony.

“Under Alabama law, periodic alimony consists of regular installment payments made from one spouse to anpther 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). A divorcing spouse is not automatically entitled to periodic alimony, Beckwith v. Beckwith, 475 So.2d 575, 577 (Ala.Civ.App.1985) (holding that periodic alimony is not mandatory), but the decision whether to award periodic alimony rests in the sound judicial discretion of the trial court. Bush v. Bush, 784 So.2d 299, 300 (Ala.Civ.App.2000).
“In exercising its discretion, the trial court is guided by equitable considerations. See Killingsworth v. Killingsworth, 925 So.2d 977, 983 (Ala.Civ.App.2005). 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 séparate 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. MacKenzie, 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 ánd 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).
“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 coprt, 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 v. Shewbart, 64 So.3d 1080, 1087-89 (Ala.Civ.App.2010).

The record reflects the following relevant facts. The parties married when both were attending college. The husband, completed his degree in electrical engineering, but the wife did not complete her accounting degree and instead dropped out of college, and worked. The wife testified that she had bagged groceries and had been a stocker at a military commissary and that she had worked at Qualitest Pharmaceuticals in the aecounts-receivable department, where she had “handled re-, bate programs.” She never returned to college to complete her accounting degree, and, between 1998, when the parties’ first' child was born, and 2006, the wife was a stay-at-home mother.

At the time of the trial, the wife, who was then 45 years old, was employed by the “morale, welfare and recreation department” at Redstone Arsenal. She explained that she worked at various fitness centers as an attendant and also taught certain fitness classes. Her gross income, as reflected on the child-support guidelines form contained in the record, is $1,941.16. She testified that her take-home pay was usually, between $1,300 and $1,400 per month.

The wife testified that she has an extra lumbar vertebra in her spine and that surgery was indicated for that condition. However; she said that she had not opted for surgery because she could not teach fitness classes if she had the surgery and would not be able to earn an income if she was unable to teach those classes. .The wife also testified that she had a bulging, but not yet herniated, disk in her back and that she was about to undergo rotator-cuff repair surgery in the weeks after the trial. In addition, the .wife explained that she suffered from low cortisol levels, which, she said, could cause a heart attack. However, although the wife testified that stress could cause her to need to seek treatment for low cortisol levels, she admitted that she had not had the need to seek such treatment in over a year before trial.

The husband testified that he has an uhdergraduate-level degree in electrical engineering. He is employed by the Department of the Army as a general engineer, and his yearly gross salary is $110,275. The husband is also on active duty in the Alabama Army National Guard; his yearly base salary for that employment is $18,038.79. The husband’s employer is paying for his attendance at a master’s degree program. The husband testified that his gross monthly income is $10,692.81; however, ‘the child-supporfc-guidelines form contained in the record reflects that the husband’s, gross monthly income is $10,829.50.

■ During the parties’ lengthy separation, the husband paid the wife $1,400 per month in- child support. He also assisted her by paying $500 per month toward her rent. . However, in July 2014, shortly before the- wife filed her complaint for a divorce, the husband stopped paying the wife the $500.

The wife testified that she was unable to meet her expenses on her income. The wife also submitted an exhibit .outlining her expenses, which included, among other, things, her rent, the older child’s private-school tuition, food and restaurant expenses for her and the children, her cloth-, ing expenses, the children’s school-uniform and clothing expenses, and the costs' associated with the older child’s - participation as a cheerleader at her school. As the husband points out in his appellate brief, although the wife’s exhibit indicates that the wife’s ‘monthly expenses total $4,720.08, the total is actually $4,702.08. In addition, the wife’s expenses contain amounts assigned to the husband in the divorce judgment, including the private-school tuition for the older child, the cost of the older child’s required school uniforms, and all expenses associated with the older child’s cheerleading, which, combined, . equal $933.75 per month. Thus, the wife’s monthly, expenses are reduced to $3,768.33 by virtue of the divorce judgment. The wife also included in her expenses the costs of having the children live primarily with her. Because she and the husband will alternate custody on a weekly basis under,the divorce judgment, some of the wife’s monthly food costs of $767 should be reduced because of the reduction in the time the children will be in her physical custody. However, the exact amount of that reduction is unknown. Her net income. of at least $1,300 combined with $1,418 per month in child support will provide the wife.with $2,718 in funds from which to meet the: expenses incurred by her and the children.

. The husband testified,that he could not afford to pay alimony. Two exhibits outlining the husband’s monthly expenses appear in the record, but the husband relied on the exhibit outlining the lesser amount of total expenses while -testifying during the presentation of his case. According to the husband,'his expenses total $6,987.42 per month and include, among other things, the mortgage payment on the marital residence, his $1,418 child-support obligation, and the older child’s private-school tuition of $725. According to the child-support-guidelines form contained in the record, the husband also pays a total of $866.45 per month in health-insurance costs; he testified, however, that he pays $440.46 per month for insurance. Adding the larger amount of insurance costs and the cost of uniforms and cheerleading costs (which combined to total $208.75) to his expenses increases the husband’s monthly expenses to $7,636.63.

However,.the record contains no evidence regarding the standard of living the parties enjoyed during the marriage. As noted above,

“[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.... 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."

Shewbart, 64 So.3d at 1087-88.

Although the disparate incomes of the parties is clear, the wife failed to present evidence regarding- the standard of living of the parties during their marriage. Because the wife failed to meet the necessary condition of proving the standard of living of the parties during the .marriage, we cannot hold the trial court in error for failing to award the wife periodic alimony. The judgment of the trial court divorcing the parties is therefore affirmed.

AFFIRMED.

PITTMAN and DONALDSON, JJ., concur.

MOORE, J., concurs specially.

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

MOORE, Judge,

concurring specially.

“Alimony is a creation of statute. Although-based on the common-law obligation of the husband to support his wife, Davis v. Davis, 279 Ala. 643, 189 So.2d 158 (1966), the court’s authority to award alimony upon grant of divorce is entirely statutory. There is no vested right to the future payment of periodic alimony, Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974); Gabbert v. Gabbert, 217 Ala. 599, 117 So. 214 (1928).”

Ivey v. Ivey, 378 So.2d 1151, 1152 (Ala.Civ.App.1979). An Alabama trial court’s authority to award periodic alimony to a spouse following a divorce arises solely from Ala.Code 1975, § .30-2-51 (a), which provides, in pertinent part:

“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may-order to a spouse an. allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family.”

By its wording, § 30-2-51(a) allows a trial court granting a divorce to award a spouse who is without a separate estate sufficient for his or her maintenance an allowance from the estate of the other spouse.

To come within the purview of § 30-2-51 so as to qualify for consideration of an award of periodic alimony, a spouse must first prove that he or she lacks a sufficient estate for his or her “maintenance.” That is, the petitioning spouse must establish to the satisfaction of the trial court that he or she cannot maintain the marital standard of living, i.e., “the economic status quo,” Orr v. Orr., 374 So.2d 895, 897 (Ala.Civ.App.1979), based on his or her own resources.

In this case, Dawn Elizabeth Rodgers (“the wife”) introduced into evidence an exhibit listing her current living expenses. Among other things, that exhibit detailed the monthly costs for housing, clothing, food, entertainment, and job-related expenses the wife had been incurring since the parties separated in 2012. The wife did not testify that those costs were necessary to enable her to live as she did before the parties separated. In fact, the wife presented no evidence regarding the marital standard of living or the costs incurred by the parties to sustain that standard of living. The dissent argues that the Madison Circuit Court (“the trial court”) should have inferred from other evidence the general marital standard of living, which it describes as “comfortable, but not extravagant,” 231 So.3d at 1100 (Thompson, P.J., dissenting), and implies that the wife had demonstrated that her current expenses were reasonably necessary to continue that way of life. However, a trial court cannot base a factual determination on an inference based on an inference. See Systrends, Inc. v. Group 8760, LLC, 959 So.2d 1052, 1074 (Ala.2006). The burden rests squarely on the petitioning spouse to prove that he or she meets the threshold requirements for periodic alimony, Shewbart v. Shewbart, 64 So.3d 1080, 1087-89 (Ala.Civ.App.2010), so that the trial court does not have to speculate as to whether its statutory authority has been invoked.

Even if the trial court could have determined that the wife’s current expenses approximated the costs of the marital standard of living, the trial court still would have had to decide that the wife could not meet those costs based on her own resources, which would include “her own separate estate, the marital property received as part of any settlement or property division, and ... her own wage-earning capacity.” Shewbart, 64 So.3d at 1088. The divorce judgment awarded the wife three automobiles, one-half of several retirement accounts, and all of her own personal property and financial accounts. Assuming that the wife cannot access the retirement accounts without adverse financial consequences, as she argues in her appellate brief, without citation to the record, see Rule 28(a)(7), Ala.Code 1975, the record fails to disclose the value of the wife’s other assets, which Robert Joseph Roberts (“the husband”) contends could be liquidated in order to eliminate some of the wife’s monthly debts.

The wife testified to a monthly net income of $1,300 to $1,400. However, in considering her financial needs, the trial court was not confined to the wife’s current income but also could consider her ability to earn. See Rockett v. Rockett, 77 So.3d 599, 603 (Ala.Civ.App.2011). Before the marriage, the wife pursued an accounting degree through her junior year at college. After the parties married, the wife did not complete her education, but she did obtain work in the accounts-receivable department at a pharmaceutical company from which she eventually resigned in Í998. The wife began working again in 2006 as a fitness instructor, one of two part-time jobs she held at the time of trial, the other being as a salesperson at a gymnasium. In 2009, the wife decided that the marriage was over and she began “planning [her] exit”; although she remained in the marital home until 2012 and received financial support from the husband after the parties separated until she filed for a divorce in 2014, the wife did not take any steps to complete her accounting degree or otherwise improve her employment marketability, having applied for only three or four jobs.

None of the wife’s health issues or child-rearing responsibilities would prevent her from working full time. At trial, the wife testified that she was “re-enrolling” in the same university that she had attended in the 1990s to finish her accounting degree. The wife gave various explanations for delaying her return to school, including testifying that she

“wanted to wait until [the divorce] was settled before — so I needed to know -what the financial situation was going to be before I get back in is what my thinking was.”

The husband testified that the wife

“has been riding this thing out, not trying to improve her situation a bit because she can maximize her settlement and then she can try to move on with her life. She said it multiple times. She said it in the courtroom today. She can’t do anything until this is over.”

From that testimony, the trial court could have determined that the wife had refused to complete her accounting degree during the marriage for strategic litigation purposes. The trial court also could have determined that the wife actually had the ability to earn sufficient wages to cover her expenses but was, in essence, voluntarily underemployed. See generally Clore v. Clore, 135 So.3d 264 (Ala.Civ.App.2013) (affirming rehabilitative-alimony award of $800 per month based, in part, on wife’s decision not to seek employment during pendency of divorce).

Moreover, no spouse has a vested right to periodic alimony, even if that spouse contributed to -the financial success of the other spouse during a long-term marriage. See Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Section 30-2-51(a) makes the determination whether to award periodic alimony a matter of judicial discretion so that a trial court can consider the equities of each individual case. See Shewbart, supra. This court reviews a judgment denying periodic alimony only to correct an abuse of that discretion. Id. At trial, the trial court questioned the parties at length about their financial circumstances. In the divorce judgment, the trial court denied the wife’s claim for periodic alimony. The trial court considered a postjudgment motion filed by the wife in which she asserted that the denial of periodic alimony was in error for the same reasons asserted by the wife in this appeal. The trial court did not state its reasons for maintaining its original judgment denying the claim, but it could have determined that it would be inequitable to award, periodic alimony under the circumstances. Our standard of review requires affirmance of the judgment. '

THOMPSON, Presiding. Judge,

dissenting.

The evidence in this case indicates that, from his job as an engineer with the Department of the Army and his job with the Army National Guard, Robert Joseph Rodgers (“the husband”) earns a combined gross salary of approximately $128,000 annually. Dawn Elizabeth Rodgers (“the wife”) earns a net annual salary of approximately $16,800 by working at a gym and teaching fitness classes. She testified that she has attempted to obtain more lucrative employment but has not yet been successful. The wife stated that she has been limited in her job choices because of her lack of a college education and the type of job experience she has.

The undisputed evidence demonstrates that, early in the marriage, the parties agreed that the wife would hot continue pursuing her degree in accounting but instead would work to support-the parties while the husband completed his engineering degree.- The wife testified that, at. that time, she would work two or three jobs at a time to enable the husband to be a full-time student. The husband did serve part time in the Army National Guard.

Additionally, evidence indicates that, after the husband finished college, the wife continued to work until the parties’" first child was born. The evidence is undisputed that the parties agreed at that time that the wife would not'Work outside the" home. The wife remained out of the workforce for the next eight years, until the parties’ younger child began kindergarten.

At the time the parties separated, they livéd in a home that the wife estimated had a fair market value of approximately $175,000. The husband did not dispute the wife’s estimation. The older "child, who was -16 years old' at the time of the trial, was enrolled in private school. The younger child, who was 13 years old at the time of the trial, had also been enrolled in private school when the parties separated in 2012, but she was in public school at the time of the trial. ■ Other evidence indicated that, in the fall of 2009, before the parties separated, they had taken a family vacation to Disney World. Later, the husband said, he and the wife went on what he called a second honeymoon to South Miami Beach.

From the totality of the evidence, I believe an inference can be drawn that the parties had a comfortable, but not extravagant, standard of living during their marriage of more than 20 years. Furthermore, the evidence presented supports the conclusion that the husband was able to earn a comfortable, living because of the decisions the parties made together early in the marriage that enabled the husband to complete his degree and have a success-, ful career. Based on the resulting differences in their educations and job experience, the parties have disparate earning capabilities.

At the time of the trial of this matter, the husband annually - earned more than $100,000 more than the wife. Evidence indicates that the wife cannot meet her monthly expenses based on the current monthly salaries from her two jobs. On the other hand, evidence indicated that, after paying his monthly expenses, the husband still had $2,000 a month. .

Because issues of alimony and property division must be considered together, Ray v. Ray, 176 So.3d 1229, 1233 (Ala.Civ.App.2015), I also reviewed the division of marital assets set forth in the judgment. The property division appears to be relatively equal; therefore, I cannot say that the wife received a greater share of the marital property in lieu of periodic alimony or that the property division so favored the wife that it offset her need for periodic alimony.

Based on the substantial difference in the parties’ incomes, the substantial differences in their relative earning capacities, the reasons for those differences, and the lifestyle the parties enjoyed before they separated, I believe that refusing to award the wife any periodic alimony constitutes an abuse of discretion. Accordingly, I would reverse the judgment of the trial court. For that reason, I respectfully dissent.

      . In 2014, the husband earned $19,954.11 from his employment by the Alabama Army National Guard. Hetestified that he had performed an extra four days of temporary duty in 2014 and that additional duty had increased his pay by approximately $1,000 that yéar. He testified that he had not performed additional duty in 2015.

      . The wife testified that both children wore required school uniforms. Her monthly expenses included $157,49 as reflecting the cost of those uniforms, To compute the husband's estimated uniform expense for the older child, we divided.the wife’s monthly expense in half.

      . In fact, although both of the children attended Catholic school.for .part of the marriage, most of the testimony adduced at trial indicates that the husband was quite frugal - during the marriage. The wife complained that the husband had never bought her an engagement ring and that they had not taken a honeymoon. The husband admitted that the wife’s spending had caused issues during the marriage; he complained that she often overdrew her account and would not tell him when she needed money. The wife stated that, at times, she had not had the funds in her account to pay bills for which she had been responsible during- the marriage. The husband said that he had shopped at thrift stores for his clothing as opposed to the department stores the wife favored, He also testified that, after the separation, he had not had cable television. ■


author: MOORE, Judge. THOMPSON, Presiding Judge,

text:
    Michael T. COWPERTHWAIT v. Carrie Ann COWPERTHWAIT
    2150252
    Court of Civil Appeals of Alabama.
    January 6, 2017
    Certiorari Denied March 10, 2017
    Alabama Supreme Court 1160315

      Joan-Marie Sullivan, Huntsville, for appellant. • ’
    Parker Edmiston, Scottsboro, for appel-lee.
   On Application for Rehearing

MOORE, Judge.

This court’s opinion issued on October 21, 2016, is withdrawn, and the following is substituted therefor,

Michael T. Oowperthwait (“the husband”) appeals from a judgment entered by the Madison Circuit Court (“the trial court”) divorcing him from Carrie Ann Cowperthwait (“the wife”) to the extent that it divided the parties’ property, awarded the wife alimony, and awarded the wife sole physical custody of the parties’ children. We affirm the trial court’s judgment in part and reverse it in part.

Procedural History

On October 9, 2014, the husband filed a complaint seeking a divorce from the wife. On October 22, 2014, the -wife answered the complaint and counterclaimed for a divorce. The husband filed a reply to the, counterclaim on October 23,2014.

On September 9, 2015, the parties entered into a stipulation of- partial settlement providing for the division of several of the parties’ retirement accounts. After a trial, the trial court entered a judgment on September 15, 2015, that, among other things, divorced the parties, awarded the wife sole physical custody of the parties’ two children; ordered the husband to pay monthly child support in.the amount of $1,398; ordered the husband to pay monthly alimony in the amount of $1,000 for 104 months; divided the proceeds from the sale of the marital home and a boat equally between the parties; divided the parties’ joint bank accounts equally between the parties; divided the partiés’ retirement accounts as set forth in the parties’ joint stipulation; ordered the husband to pay the balance owed on the parties’ joint USAA MasterCard credit-card account; ordered each party to pay the debts in his or her individual name; divided the parties’ personal property; and ordered the husband to pay $10,000 to the wife, to “to equalize the division of personal property.”

On October 14, 2015, the husband filed a postjudgment motion. That motion was denied on November 6, 2015. On December 11, 2015, thé husband filed his notice of appeal to this court.

Discussion

A.

On appeal, the husband first argues that the trial court erred in its division of the marital property and in its award of alimony to the wife.

“In reviewing a "judgment of the trial court in a divorce case, where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court’s judgment based on those findings will be presumed to be .correct and will not be disturbed on appeal unless it is plainly and. palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala. Civ. App. 1993). This presumption of correctness is based on the trial court’s unique position to observe the witnesses and to assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala. 1986). Additionally, matters of alimony and property division rest soundly within the trial court’s discretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala. Civ. App. 1994). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala. Civ. App. 1995).”

Zinnerman v. Zinnerman, 803 So.2d 569, 572 (Ala. Civ. App. 2001).

With regard to the property division, the husband specifically argues that the trial court erred in ordering him to pay the debt on his Best Buy credit-card account and on the parties’ joint USAA MasterCard credit-card account. The evidence in the record shows that, after the parties separated, the wife purchased several appliances as an authorized user on the husband’s Best Buy credit-card account, leaving a balance of $1,476.76. The judgment provides that, unless specifically stated otherwise, the wife shall pay any debt she has incurred regardless of whether that debt was incurred in her name or “in the joint names of parties hereto.” The judgment does not specify that the husband must pay the Best Buy credit-card debt. Thus, the judgment does not impose any liability on the husband for that debt; instead, it requires the wife to pay that debt. Thus, we do not address this argument further.

The judgment does specifically order the husband to pay the balance of the USAA MasterCard credit-card account, which totaled $5,718.27.- The evidence in the record shows that, while the divorce action was -pending, the wife' charged $2,857 on the USAA MasterCard credit-card account to pay her attorney’s fees and that she also took a $2,500 cash advance. The trial court specifically indicated that it would not order the husband to pay the wife’s attorney’s fees because the wife-had made no claim for those fees, so that portion of the judgment requiring the husband to pay $2,857 of the balance owed on the USAA MasterCard credit-card account cannot stand. See Cinader v. Cinader, 367 So.2d 487, 488 (Ala. Civ. App. 1979) (“[A] request [for attorney’s fees] must be made, and evidence of financial need and performance of the service shown before the authority of the court to grant such fees is properly invoked.”); Kelley v. Kelley, 414 So.2d 126, 129 (Ala. Civ. App. 1982) (reversing trial court’s judgment insofar as it awarded the plaintiff in that case attorney’s fees “[bjecause of the absence of any request for an attorney’s fee and [because] that issue was not tried by either express or implied consent of the parties”). We therefore reverse the trial court’s judgment to the extent it ordered the husband to pay that portion of the USAA MasterCard credit-card .balance that is attributable to the wife’s attorney’s fees.

In his postjudgment motion, the husband argued that he should' not be required to pay the balance on the USAA MasterCard credit-card account because “[t]his debt was incurred exclusively by the [w]ife” and “cannot be considered to have been accrued for- the benefit of the parties.” On appeal, the husband reasserts that argument; however, in his appellate brief, the husband does not cite any evidence as to how the wife used the $2,500 cash advance, arguing only generally that, if the wife used the cash advance for her own personal benefit, it cannot be considered a marital debt. See generally Carnes v. Carnes, 82 So.3d 704 (Ala. Civ. App. 2011). “This Court does not have the obligation to search the record for substantiation of unsupported factual matter appearing in an appellant’s brief in order to determine whether a judgment should be reversed.” Friedman v. Friedman, 971 So.2d 23, 31 (Ala. 2007). The husband asserts other arguments as to why he should not be liable for the cash advance, but those arguments were not presented to the trial court and, hence, cannot be considered by this court for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala. 1992). Thus, we affirm the judgment insofar as it requires the husband to pay the charges on the USAA MasterCard credit-card account for the cash advance received by the wife.

The husband next argues that the trial court erred in awardjng the wife $10,000 to “equalize” the personal-property division. He argues that the award of $10,000 actually resulted in j;he wife’s receiving personal property in an amount significantly greater than that awarded to the husband. However, the wife points out in her appellate brief that, using the values of the perspnal property that she presented at the trial, the personal-property division is only $45.01 from being equal. See Driver v. Hice, 618 So.2d 129, 131 (Ala. Civ. App. 1993) (noting that “we are required to review the evidence in a light most favorable to the prevailing party”).

Furthermore,

“a property division pursuant to divorce is not required to be equal, but merely equitable. Huntress v. Huntress, 555 So.2d 1103 (Ala. Civ. App. 1989).
“The trial court is also free to consider the conduct of the parties in regard to the cause of the divorce in its property division. Huntress, supra. Even when the grounds of the divorce are incompatibility, the trial court may consider fault when making a division of property. Lutz v. Lutz, 485 So.2d 1174 (Ala. Civ. App. 1986).”

Allen v. Allen, 565 So.2d 653, 655 (Ala. Civ. App. 1990).

In the present case, although the trial court divorced the parties based on the grounds of incompatibility of temperament and irreconcilable differences, the trial court specifically found “the Husband’s inappropriate relationships with other women and his lack of honesty with the Wife about said relationships to be a significant factor contributing to the breakdown of the parties’ marriage.” The husband does not challenge that finding on appeal. Based on the foregoing, we cannot conclude that the trial court’s award of $10,000 to the wife to equalize the personal-property division was inequitable even if it did result in the wife’s being awarded property valued at more than the property the husband was awarded.

The husband also argues that the trial court erred in its award of alimony to the wife because, he says, the wife failed to prove the parties’ standard of living during the marriage, having, instead, presented evidence only of her expenses during the parties’ separation. In our opinion on original submission, we determined that the husband had not preserved this argument by raising it before the trial court in his postjudgment motion. In his application for rehearing, the husband points out that he raised this argument in the hearing on his postjudgment motion, and he points the court to the appropriate pages of the transcript of that hearing. We agree with the husband that he did properly raise the argument, see New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala. 2004) (“[I]n a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.” (emphasis added)), and we now address the argument on rehearing. We note, however, that Rule 28(a)(5), Ala. R. App. P., was amended effective August 1, 2015, to specifically require parties in civil appeals to include in their initial briefs a reference to the pages of the record in which any adverse ruling has been made. To comply with Rule 28(a)(5), an appellant asserting that a trial court has adversely ruled against the party necessarily should cite the pages of the record in which he or she raised any objection, motion, or argument, along with the pages of the record in which the trial court ruled on that objection, motion, or argument. This court has no duty to search the record to determine if an error has been properly preserved and whether a judgment should be reversed. See Roberts v. NASCO Equip. Co., 986 So.2d 379, 385 (Ala. 2007).

We acknowledge that the- wife presented evidence of her monthly expenses during the separation and that she did not present a detailed list of the monthly expenses incurred by the parties during the marriage. However, the wife testified that she had calculated the monthly amount that she needed to maintain the family’s standard of living and that that amount was $1,000 per month for eight years. She testified that she felt that it was the husband’s obligation to maintain her at the same standard of living that the parties had maintained before their separation. From that testimony, the trial court could have properly determined that the wife needed $1,000 per month in order to maintain the marital standard of living.

‘“As a first step toward proving a need for periodic alimony, “a petitioning spouse should ... 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.” Shewbart [v. Shewbart], 64 So.3d [1080,] 1088 [ (Ala. Civ. App. 2010) ]. Although submitting an itemized monthly budget may be a preferred practice, nothing in the law requires a spouse to submit such a budget to the trial court in order to meet that evidentiary burden, as the husband contends. Because of the broad discretionary power of a trial court over an award of periodic alimony, see Shewbart, 64 So.3d at 1087, a petitioning spouse need only present sufficient evidence from which the trial court can reasonably infer the costs associated with the marital standard of living.’”

Knight v. Knight, 226 So.3d 688, 695 (Ala. Civ. App. 2016) (quoting McCarron v. McCarron, 168 So.3d 68, 76 (Ala. Civ. App. 2014))(emphasis omitted). Because an itemized monthly budget based on the wife’s expenses during the marriage, was not required and because we conclude that there was “ ‘sufficient evidence from which the trial court [could have] reasonably infer[red] the costs associated with the marital standard of living,’ ” we. cannot find error on this point. Knight, 226 So.3d at 695 (quoting McCarron, 168 So.3d at 76) (emphasis omitted). The husband argues, with regard to the alimony award, that the wife is able to earn more than she currently earns as a part-time labor-and-delivery nurse. We recognize that a trial court should consider a party’s earning ability, not just his or her income, in determining a periodic-alimony award. Rockett v. Rockett, 77 So.3d 599, 603-04 (Ala. Civ. App. 2011). In the present case, the husband points out that, before the parties had children, the wife had earned substantially more than she was earning at the time of the trial. The evidence indicated that the wife had previously worked as an engineer .until 2003 and that she had then worked for a short time as a pharmaceutical-sales representative before the parties had their first child, She testified that, at that time, the parties had agreed that she would stay home and raise their children. She testified that, since the time she had worked as an engineer, that field had changed such that she no longer has the training to work in that field and that, now that she has children, she is no longer free to work the long hours required in her .previous job as a pharmaceutical-sales representative. She testified that, while the parties had still been married, once the younger child had begun school, she had gone back to college and obtained a nursing degree so that she • could work part-time as a labor-and-delivery nurse and earn extra money for the family. She testified that, since the parties had separated, she had attempted to obtain a full-time position as a labor-and-delivery nurse but had been unable to do so. The wife’s nursing-unit supervisor testified that the wife is on a waiting list for full-time employment and that it may take her years to reach the’ top of that list. Under those facts, we cannot conclude that the wife is able to earn more than she was earning at the time of the trial. See, e.g., Dunn v. Dunn, 891 So.2d 891, 896 (Ala. Civ. App. 2004) (holding that trial court did not err in finding that the' wife was not voluntarily unemployed when she had primarily stayed home to rear the parties’ children during the marriage and, after the parties’ separation, had chosen to work as a teacher instead of in another field in which she lacked training).

The husband also argues that, with the alimony award, the wife has more than enough funds to pay her monthly expenses but that he is left with a monthly deficit. The wife presented evidence indicating that her net income was $1,820 per month, that her monthly expenses for her and the children were $4,338, and that, therefore, she had a monthly deficit of $2,518. On the other hand, the husband presented evidence indicating that his net income is $7,048.49 per month and that his monthly expenses total $6,309.24. He argues that, after he. pays his $1,398 child-support obligation and his $1,000 alimony obligation, he is left with a monthly deficit of $1,658.75. We note, however, that, after the wife’s receipt of child support and alimony, she still has a $120 deficit. The husband argues that the wife’s monthly payment to Furniture Row should not be included in her monthly expenses because, at the time of trial, there were only three monthly payments left owing on that account. We conclude, however, that the trial court did not err in considering the wife’s needs' as they existed at the time of the trial;' we also note that, even if the Furniture Row "payment of $115 is ’deducted from the wife’s total monthly expenses, the wife still has a deficit. With regard to the husband’s expenses, the wife points out in her brief to this court that the husband’s listed expenses include $535 for a vehicle that is not his primary vehicle, as well as automobile insurance and maintenance related, presumably, to two vehicles, $400 for entertainment, and other expenses that she argues are not regular monthly expenses. The trial court, which was in the best position to judge the credibility of the witnesses, could have determined that the husband’s expenses, which totaled almost $2,000 more than the expenses that the •wife had listed for herself and the parties’ two children, were artificially inflated. See, e.g., Marshall v. Marshall, 168 So.3d 52, 60 (Ala. Civ. App. 2014) (noting that “the trial court, as the sole judge of the facts and of the credibility of the witnesses, could have rejected ... testimony ■ [relating to husband’s expenses] on the ground that it was not credible”).

Based' on the foregoing, we cannot conclude that the trial court erred in its award of alimony to the wife.

B.

The husband next argues that .the trial court erred in not awarding the parties joint physical custody of the children.

‘“When evidence in a child custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. ...
“ ‘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. ...
“ ‘... If custody has not previously been determined, then the “best interest of the child” standard is appropriate. Ex parte Couch, 521 So.2d 987 (Ala. 1988)....’”

Lamb v. Lamb, 939 So.2d 918, 921-22 (Ala. Civ. App. 2006) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala. 1996)).

In Alexander v. Alexander, 65 So.3d 958 (Ala. Civ. App. 2010), this court determined that the trial court had not erred in declining to award the parties joint physical custody of the children when the parties “had proved to be unable to consensually reach [a custody] agreement, ... the trial court had been required to set a specific visitation schedule and to supervise it throughout the pendency of the divorce action,” and “the parties had disagreed as to which extracurricular activities the child should attend, whether the child’s ears should be pierced, and which playmates the child should visit after school.” 65 So.3d at 963.

Similarly, in the present case, the parties had been unable to agree on a custody or visitation arrangement. The wife requested that the husband be awarded “standard” visitation while the husband requested equal parenting times. Although the parties live in close proximity to one another, the husband suggested that the parties’ marital problems had stemmed from the fact that they had completely different parenting styles and that they had not been able to cooperate in co-parenting the children. Further, the wife testified that she had been the children’s primary caretaker, that the husband had traveled often, that the husband did not interact well with the children, and that she was- afraid for the children to be with the husband for extended periods because of his history of having an explosive temper with, the children. Based on that evidence, we cannot .conclude that the trial court erred in determining that joint physical custody would not be in the children’s best interest. See Lamb, 939 So.2d at 921-22; Alexander, 65 So.3d at 963.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment to the extent that it ordered the husband to pay the wife’s attorney’s fees that were charged on the parties’ joint USAA MasterCard credit-card account, and we remand this cause for the trial court to enter a judgment requiring the wife to pay that debt. The judgment is affirmed in all other respects.

APPLICATION GRANTED; OPINION OF OCTOBER 21, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

Pittman, Thomas, and Donaldson, JJ., concur.

Thompson, P.J., concurs in the rationale in part and concurs in the result, with writing.

THOMPSON, Presiding Judge,

concurring in the rationale in part and concurring in the result.

The main opinion holds that, because Carrie Ann Cowperthwait (“the wife”) had not made a claim for an attorney’s fee, the trial court erred in ordering Michael T. Cowperthwait (“the husband”) to pay that portion of a credit-card balance attributable to the payment of the wife’s attorney’s fee. Under the facts of this case, I agree with that result. However, I disagree with the main opinion’s holding to the extent that it can be read as requiring a party to explicitly request an attorney’s fee in a pleading before that party can be entitled to receive such relief.

I wish to point out that, at the trial, the husband explicitly objected to the issue of attprney’s fees being tried by the consent of the parties and expressly refused to consent to the litigation of the issue. The record indicates that the wife had attempted to present evidence regarding her attorney’s fee and the reasonableness of that fee. I note that in Cinader v. Cinader, 367 So.2d 487, 488 (Ala. Civ. App. 1979), one of the cases the main opinion relies on in reaching its holding, this court held that the trial court had not erred in refusing to award an attorney’s fee to the wife in that case when the record indicated that her attorney had withdrawn after making an appearance “only through taking of a reference pendente lite” and that no evidence was presented as to the value of the attorney’s services or whether he had even charged the wife. In Kelley v. Kelley, 414 So.2d 126, 129 (Ala. Civ. App. 1982), this court reversed the trial court’s award of an attorney’s fee because the plaintiff had not requested such relief and the record was silent on the issue, meaning the issue had not been tried with the express or implied consent of the parties.

This case is distinguishable from both Cinader and Kelley because the wife attempted to introduce evidence as to the amount and reasonableness of her attorney’s fee. Had the husband not timely objected, the wife would have sufficiently raised the issue of an attorney’s fee to merit the trial court’s consideration of the issue, even though she had not specifically made a request for an attorney’s fee in her complaint. See Davis v. Blackstock, 160 So.3d 310, 323 (Ala. Civ. App. 2014) (a claim for an attorney’s fee was orally asserted at trial and tried by the implied consent of the parties pursuant to Rule 15(b), Ala. R. Civ. R).

      . .The husband argues that because he was ordered to pay, the Best Buy and USAA credit- . card accounts, those payments should be subtracted from the wife’s total monthly expenses, However! because we are holding that the judgment does not make the husband responsible for the Best Buy account and because we are reversing the judgment as to the USAA account, we decline to do so. The monthly payments on those accounts are not included' in the husband’s monthly expenses that he presented at the trial.