author: THOMPSON, Presiding Judge.

text:
    Juanita Williams TRIMBLE v. William TRIMBLE.
    2080150.
    Court of Civil Appeals of Alabama.
    June 19, 2009.

      Joseph W. Warren, Montgomery, for appellant.
    Amy Hayes Naylor of Naylor & Collins, P.C., Clanton, for appellee.
   THOMPSON, Presiding Judge.

Juanita Williams Trimble (“the former wife”) appeals from the judgment of the trial court entered as to her petition for a rule nisi in which she sought reimbursement of certain expenses from William Trimble (“the former husband”). The judgment did not grant all of the relief the former wife had sought. Specifically, the trial court determined that the issue whether the former husband must reimburse the former wife for the college expenses for one of their children was moot because, the court found, those expenses “had been settled by income deduction.” The trial court also determined that the former wife and the former husband each owned a one-half interest in the marital residence and that the former husband owed the former wife approximately $6,000 for his share of maintenance costs on the house. The judgment was silent on the issue whether the former husband owed the former wife for his alleged failure to make all of the mortgage payments on the marital residence for which he was responsible under the original divorce judgment.

Evidence adduced at the hearing on the former wife’s petition for a rule nisi tended to show the following. The parties were divorced in August 1987. The original divorce judgment provided that the former husband was responsible for one-half of the mortgage payments on the marital residence. The former wife testified that, in 1994, the former husband stopped making his portion of the mortgage payments. She said that she had made the entire mortgage payment each month from 1994 to 2007, when the mortgage was satisfied. The former wife calculated that the former husband owed her $30,394.60 for the missed payments.

The former husband worked for the United States Postal Service (“USPS”). From 1994 until his retirement in 2001, income was withheld from his paycheck and paid directly to the former wife to cover both child-support payments and the former husband’s share of the mortgage. In 2001, the former husband said, each of the parties’ children had reached the age of majority, and he contacted the former wife about selling the marital home, but, he said, he did not receive a response from her. The former husband said that he had continued to pay the former wife his share of the mortgage payment out of his retirement pay from 2001 until 2005, when his mother entered a nursing home. He said that he had stopped making the mortgage payments so that he could pay for his mother’s nursing-home care.

The trial court took judicial notice of a June 1994 income-withholding order in the court’s file showing that income was to be withheld from the former husband’s pay and further “showing that $81.59 every two weeks was [to be] paid for the mortgage payment.”

As to the issue of payment of college expenses, the record indicates that, in 1997, one of the parties’ children received a scholarship to attend Tuskegee University (“Tuskegee”). At that time, the former wife filed a petition to modify the terms of the original divorce judgment. The trial court ordered the former husband and the former wife each to pay one-half of the child’s college expenses at Tuskegee that were not covered by the scholarship, including tuition, books, and room and board. The order provided that the former husband was obligated to pay for the enumerated expenses as long as the child was a full-time student maintaining a “C” average.

At the hearing on the instant petition, the former wife testified that, of “the receipts that [she] could still find,” the former husband’s share of the child’s college expenses incurred at Tuskegee was $4,310.30. The child only attended Tuskegee for one year before transferring to the University of Alabama at Birmingham (“UAB”). The former wife also asserted that the former husband owed $2,411.17 “for the receipts that [she] could still find from UAB.”

The former husband testified that he was not consulted about whether the child should transfer from Tuskegee to UAB. The child did not have a scholarship at UAB. The former husband said that the child became pregnant and left UAB before finishing one semester there.

The child had not been in college for almost ten years at the time of the hearing. According to the former husband, before filing the instant petition in July 2007, the former wife had never raised the issue of outstanding college expenses and had not told him how much he owed for such expenses.

The former wife asserts that the trial court exceeded its discretion by “disregarding] uncontradicted proof’ that established that the former husband had failed to pay the former wife one-half of the mortgage payments as ordered in the divorce judgment. She also asserts that the trial court exceeded its discretion in failing to order the former husband to pay his share of their child’s college expenses.

When a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1088, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000).

The judgment on the former wife’s petition for a rule nisi states that the former husband and the former wife each owned a one-half interest in the marital residence. The judgment contains no specific finding as to whether the former husband was in arrears on his share of the mortgage payments, but the former wife was not awarded any money for past-due mortgage payments. The law is settled that, in the absence of an order severing a claim or ordering a separate trial, a “judgment will be deemed a final judgment on all issues pleaded and any claims which are not specifically disposed of in the judgment will be deemed to have been rejected or denied.” Poston v. Gaddis, 372 So.2d 1099, 1101 (Ala.1979); see also MBNA America Bank, N.A. v. Bodalia, 949 So.2d 935, 938 (Ala.Civ.App.2006); and Valley Steel Constr., Inc. v. Addison Fabricators, Inc., 658 So.2d 352 (Ala.1994). In this case, the trial court clearly intended its judgment to be a final disposition of the matter. Under the circumstances of this case, we conclude that the former wife’s request for past-due mortgage payments was denied by implication. The trial court took judicial notice that income was being withheld from the former husband’s paycheck from the USPS for his share of the mortgage, but the former husband retired in 2001. There was no evidence indicating that money had been withheld from the former husband’s retirement income. In fact, the former husband admitted that he did not pay his share of the mortgage from 2005 until 2007, when the house was paid off.

The uncontroverted evidence indicates that the former husband failed to make his share of the mortgage payments for two years. The original divorce judgment required the former husband to make those payments. The trial court’s failure to award the former wife the money owed for those missed payments or to otherwise order the former husband to reimburse the former wife for those payments is so unsupported by the evidence as to be plainly and palpably wrong. Therefore, the trial court’s judgment is due to be reversed as to this issue, and the cause is remanded to the trial court for the entry of a judgment that determines the amount of past-due mortgage payments the former husband owes the former wife.

As to the payment of college expenses for the child who was a student at Tuskegee, we agree with the former husband that the former wife failed to meet her burden of proof that the former husband owed any money pursuant to the 1997 order requiring the parties to divide expenses for tuition, books, and room and board that was not covered by the child’s scholarship.

In this case, the former wife bore the burden of proving that the former husband owed her $4,310.30 for expenses the child had incurred at Tuskegee, a figure that is based on receipts the former wife “could still find” some ten years after the payments they represented were allegedly made. See ArvinMeritor, Inc. v. Handley, 12 So.3d 669, 679 (Ala.Civ.App.2007); and Ex parte McFadden Eng’g, Inc., 835 So.2d 996 (Ala.2002).

However, the record on appeal does not indicate that those receipts were admitted into evidence. Further, there was no testimony regarding what expenses the receipts memorialized. The 1997 order only obligated the former husband to pay toward expenses for tuition, books, and room and board. Also, there was no evidence presented indicating that, when the alleged expenses were incurred, the child was a full-time student at Tuskegee and maintaining a “C” average — the conditions the trial court required to be met before the former husband was obligated to pay the enumerated expenses. The former wife simply failed to prove that the former husband owed her money pursuant to the 1997 order regarding college expenses.

We note that the reason given by the trial court for refusing the former wife’s request for reimbursement of college expenses was that those expenses, as well as child-support payments, had been settled by income deduction. Because we conclude that the former wife failed to meet her burden of proving that the former husband owed her money for college expenses pursuant to the 1997 order, we need not determine whether those expenses were the subject of income withholding. See Wilson v. Athens-Limestone Hosp., 894 So.2d 630, 634 (Ala.2004) (noting that an appellate court “can affirm a trial court’s judgment for any reason, even one not specifically given by the trial court” (citing Taylor v. Stevenson, 820 So.2d 810, 814 (Ala.2001))).

For the reasons set forth above, that portion of the trial court’s judgment finding that the former wife was not entitled to reimbursement of the child’s college expenses is affirmed. However, to the extent that the judgment failed to order the former husband to reimburse the former wife for his share of the mortgage payments on the marital residence that he admitted he did not make, the judgment is reversed and the cause is remanded for the entry of a judgment consistent with this opinion.

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

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., concurs in the result, without writing.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Doris L. HENNING v. Terry L. HENNING.
    2071192.
    Court of Civil Appeals of Alabama.
    June 19, 2009.

      Claude D. Boone, Mobile, for appellant.
    Donald M. Briskman of Briskman & Binion, P.C., Mobile, for appellee.
   THOMAS, Judge.

This is the second time these parties have been before this court. See Henning v. Henning, 999 So.2d 523 (Ala.Civ.App.2008). The pertinent procedural history was summarized in Henning:

“Doris L. Henning (‘the former wife’) and Terry L. Henning (‘the former husband’) were divorced in May 2003. The judgment of divorce required the former husband to pay the former wife monthly alimony in the amount of $3,500, to maintain health-insurance coverage on the former wife through COBRA as long as permitted by law, and to maintain the former wife as an irrevocable beneficiary of one-half of the proceeds of any life-insurance policy he currently had in existence and, in the event that the existing policy was terminated for any reason, to maintain the former wife as a beneficiary of a policy of equal value. In July 2005, the former husband moved to terminate, suspend, or reduce his alimony, health-insurance, and life-insurance obligations under the divorce judgment because he was being dismissed from his employment effective August 1, 2005. The former husband later amended his motion to report that he could continue to make the monthly alimony payment through December 2005 but that he had lost his health insurance and life insurance when he was dismissed from his employment. The former wife objected to the former husband’s request that his obligations under the divorce judgment be terminated and moved to hold the former husband in contempt for failing to pay alimony during the pendency of his motion.
“After a trial, the trial court entered a judgment that reduced the former husband’s alimony obligation to $1,750 per month and held the former husband in contempt for failing to pay alimony as requested by the former wife; the trial court permitted the former husband to purge himself of contempt by complying with all orders of the court. In addition, the trial court awarded the wife a $17,500 alimony arrearage and awarded the former wife’s attorney $1,000 to be applied to his fee. The judgment did not address the former husband’s obligation to maintain a life-insurance policy naming the former wife as a beneficiary or his obligation to maintain health insurance on the former wife pursuant to COBRA. However, the former husband testified, and the former wife did not refute, that the former husband had paid the COBRA premiums for 36 months, the amount of time that the former wife was eligible for coverage pursuant to COBRA; thus, the former husband’s health-insurance obligation expired pursuant to the terms Of the divorce judgment. Both parties filed timely postjudgment motions. The former wife argued in her postjudgment motion that the trial court had failed to rule on whether the former husband would continue to be required to maintain a life-insurance policy naming the former wife as a beneficiary; the former husband argued in his postjudgment motion that he was unable to pay even the reduced amount of alimony the trial court had ordered. After a hearing on the postjudgment motions, the trial court denied them both. Both parties appeal[ed].”

Henning, 999 So.2d at 524-25.

We dismissed the parties’ first appeals because the trial court had failed to address the request by Terry L. Henning (“the former husband”) that he be relieved of his obligation to maintain a life-insurance policy on his life naming Doris L. Henning (“the former wife”) as an irrevocable beneficiary. Id. at 525-26. After our dismissal of the appeal, the trial court, on August 8, 2008, entered a judgment relieving the former husband of that obligation, and the former wife again appealed. The former husband, although he filed a brief in which he characterized himself as a cross-appellant and in which he presented the issue he had raised in his cross-appeal in the former appeal, did not appeal from the August 8, 2008, judgment entered after our dismissal of the first appeals. Thus, we granted the former wife’s motion to strike his brief insofar as it purported to present an issue on cross-appeal.

The former wife first argues on appeal that the trial court erred by reducing the former husband’s alimony obligation. The former wife relies on the principle that it is the ability to earn of the supporting spouse and not necessarily his or her actual income upon which a decision to reduce alimony should be based. See, e.g., Taylor v. Taylor, 640 So.2d 971, 973 (Ala.Civ.App.1994). She further argues that the trial court also erred by terminating the former husband’s obligation to maintain a life-insurance policy naming her as an irrevocable beneficiary. The former wife argues that the provision in the divorce judgment requiring the former husband to name her as an irrevocable beneficiary of a life-insurance policy was either an alimony-in-gross provision or a part of the property settlement between the parties and, therefore, was not modifiable. See, e.g., Rose v. Rose, 496 So.2d 85, 86 (Ala.Civ.App.1986).

The only witnesses at the trial were the former husband and the former wife. Several exhibits were admitted into evidence; however, the exhibits were apparently lost, and the parties have provided this court with only certain replacement exhibits consisting mainly of bank statements and composite exhibits totaling bank deposits for several years. The depositions of the former husband and his current wife, which were admitted at trial, are not included in the exhibits on appeal. The former wife’s exhibit outlining her expenses is also missing from the record. Although the former wife appended certain exhibits to her brief, we are precluded from considering those items because they are not contained in the record on appeal. See Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000) (reiterating the principle that “[t]he record on appeal cannot be supplemented or enlarged by the attachment of an appendix to an appellant’s brief’). We note that “[wjhere ... evidence before the trial court ... is not preserved for the appellate court, the evidence is conclusively presumed to support the trial court’s [judgment].” White v. White, 589 So.2d 740, 743 (Ala.Civ.App.1991).

The former husband, who was 61 years old at the time of trial in November 2006, testified that he had been employed at the time of the parties’ divorce by McKesson Corporation as a software engineer earning a salary of $140,000 per year. In August 2005, the former husband was dismissed from his employment with McKes-son and Robbins; however, as part of his negotiated severance package, he was paid his salary until January 26, 2006. The former husband paid his last alimony payment in January 2006. According to the former husband, the life-insurance policy naming the former wife as a beneficiary was terminated in August 2006, when he was dismissed from employment.

When questioned about his health, the former husband replied that he had high blood pressure and heart problems and that he might have had one minor stroke. According to the former husband, his health problems have affected his short-term memory, making his recall of details difficult. He explained that he had been hospitalized three times in the five years preceding the trial in November 2006. Later, on cross-examination, the former husband was confronted with his prior deposition testimony in which he had answered in the affirmative when asked if his health problems had existed before the divorce. However, the former husband was unable to state when he began experiencing problems with his memory.

The former husband could not recall whether he had inquired about converting his life-insurance policy from a group policy to an individual policy when he was dismissed from his employment. He did testify that he had looked into getting a replacement policy by calling one insurance agent; according to the former husband, his health and age were impediments to getting a replacement policy. However, the former husband admitted that his current wife had obtained a life-insurance policy on his life after they married in late 2003 or in 2004. The former husband explained that his current wife had contacted an insurance agent who came to their house in order to obtain that policy. The former husband did testify that, although he could not find replacement insurance, he would be willing to look for some affordable life insurance if it were available to him.

A review of the former husband’s bank accounts by the former wife revealed that more income than was reported on his joint annual tax return was being deposited in the former husband and his current wife’s joint account each year. The amount of the difference varied from approximately $73,000 in 2004 to $147,000 in 2005. The former husband explained that some of the larger deposits in 2005 were from the sale of a beach condominium or from the sale of stock options that he had been required to sell upon his dismissal from employment. He explained that other specific deposits that he was questioned about were transfers from his savings account. The amount of money in the former husband’s savings account was not disclosed in the record.

The former husband insisted that he did not have any remaining stock options, although the former wife’s attorney questioned him about a document indicating the existence of stock options. As noted above, the trial exhibits were lost; the document from the former husband’s employer referencing stock options is also not an exhibit in the record on appeal. The former husband further testified that he had not transferred any money from his business account, which will be discussed in more detail below, into his personal account.

Regarding his employment search after his dismissal from McKesson and Robbins, the former husband explained that he had looked in the newspaper for about six weeks after he became unemployed. According to the former husband, he could not find any jobs “at his level,” so he decided no jobs were available for him. He said that he had considered purchasing a franchise, but neither of the two particular franchises he had been interested in worked out. Finally, the former husband explained that he had decided to make his lapidary, or gem-cutting, hobby a business.

The former husband said that he had invested $60,000 in his new business, Al-gemco, which had not yet turned a profit. Despite this fact, the former husband said that he was going to continue to “work at it.” Notably, the former husband failed to produce financial business records pertaining to Algemco at his deposition, except for one monthly bank statement for September 2006. The former husband explained his lack of records for his lapidary business, which involves purchases of rough gemstones from places like Africa and which involves wire transfers of thousands of dollars, as a failure to get as organized as he should be. However, he explained that he could get the records from the bank if he needed them.

Regarding other sources of income, the former husband testified that he would be eligible for Social Security benefits in February 2007. According to him, he would receive $1,400 per month in benefits once he began drawing them. He further testified that the former wife would also be eligible for Social Security benefits at that time and that she would receive the same amount of benefits.

The former wife, who was 61 years old at the time of the November 2006 trial, testified that she had developed a bone spur and bursitis in her right hip after the divorce. She also suffers from scoliosis of the spine and two herniated disks. The former wife said that she needed surgery to address those conditions but that she could not afford it. Because of her back and hip problems, the former wife cannot stand or sit for any length of time, which causes her difficulty in her work as a teacher. To alleviate her discomfort and to be able to work, the former wife takes prescription-strength ibuprofen and a prescription muscle relaxer.

The former wife had resumed part-time substitute teaching after the divorce. However, after the former husband ceased paying alimony in January 2006, the former wife sought and obtained a full-time teaching position beginning in August 2006. She earns, after taxes and insurance, $2,100 per month. However, she noted that she was a first-year, nontenured teacher and that she had no guarantee of continued employment.

After the divorce, the former wife sold the marital residence and used the proceeds from the sale to purchase a more modest home. Her house payment is $969.07 per month; the total amount she pays, including principal, interest, taxes, and insurance, is $1,214.90 a month. She also has an automobile payment, the amount of which is not in the record. As noted above, copies of only some of the many exhibits presented at trial were provided after the original exhibits were lost; the former wife’s budget is not among those exhibits provided to this court.

We begin our review with the oft-repeated principle that a modification of periodic alimony is a matter committed to the sound discretion of the trial court. Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala. Civ.App.1995). Because the trial court did not make specific findings of fact in its judgment reducing the former husband’s alimony obligation, we presume that the trial court made those findings that would be necessary to support its judgment, provided, of course, that the evidence would support those implicit findings. Ederer v. Ederer, 900 So.2d 427, 428 (Ala.Civ.App.2004) (citing Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). Although a trial court’s judgment on an alimony-modification petition is presumed correct, this court can reverse a trial court’s judgment if it is not supported by the evidence, is plainly and palpably wrong, and amounts to an abuse of discretion. O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App. 1996). We must be mindful, however, that we are “charged only with determining whether the evidence was sufficient to support the trial court’s judgment” and not with determining if there was a sufficient basis for a different judgment than that entered by the trial court. Ex parte Ederer, 900 So.2d at 426.

“The burden is on the party seeking a modification of the periodic alimony award to show the trial court that a material change in the parties’ circumstances has occurred since the trial court’s last judgment or order. Glenn v. Glenn, 626 So.2d 638 (Ala.Civ.App.1993). In determining whether there has been a material change in circumstances, the trial court must consider the financial needs of the payee spouse and the financial ability of the payor spouse to respond to those needs. MeCalla[ v. McCalla, 497 So.2d 509 (Ala.Civ.App.1986) ]. It is the payor spouse’s ability to earn and pay the support rather than his actual income that is determinative. Wall v. Wall, 611 So.2d 1107 (Ala.Civ.App.1992).”

Taylor v. Taylor, 640 So.2d 971, 973 (Ala.Civ.App.1994). In making its determination, a trial court should still consider the earning capacity of each spouse, the payee spouse’s need for alimony, the payor spouse’s ability to pay alimony, and each spouse’s estate. Kiefer, 671 So.2d at 711.

The former husband demonstrated that he had lost his employment and that he had suffered a significant loss of income. Based on those facts, the trial court determined that the former husband should not be required to pay the former wife $3,500 in alimony every month. The former wife argues that the trial court erred by considering the former husband’s income instead of focusing on his ability to earn, which the former wife indicates was unchanged from the time of the divorce. The former wife is correct in arguing that “the law is concerned with one’s ability to earn, as opposed to actual earnings, in deciding whether periodic alimony should be terminated, increased, or reduced in modification proceedings.” Cox v. Cox, 485 So.2d 767, 768 (Ala.Civ.App.1986); see also Warner v. Warner, 693 So.2d 487, 489 (Ala.Civ.App.1997); Taylor v. Taylor, 640 So.2d at 973; Maddox v. Maddox, 612 So.2d 1222, 1223-24 (Ala.Civ.App.1992); Wall v. Wall, 611 So.2d 1107, 1109 (Ala.Civ.App.1992); and Prentice v. Prentice, 440 So.2d 1091, 1093 (Ala.Civ.App.1983).

The former wife relies heavily on Taylor as support for her argument in favor of reversing the trial court’s reduction of the former husband’s alimony obligation. This court did reverse a trial court’s judgment suspending the husband’s obligation to make alimony payments in Taylor, relying in large part on the principle that the husband’s earning capacity and not his actual income should be used to determine whether suspension of his obligation was warranted. Taylor, 640 So.2d at 974. The husband in Taylor had retired during a downsizing by his employer and had ultimately chosen to pursue Bible studies and to work part time during his educational pursuits. Taylor, 640 So.2d at 973. Because we determined that the husband had failed to prove a material change of circumstances, that he was capable of earning an income sufficient to pay alimony, and that he had available sufficient assets from which to pay his alimony obligation, we reversed the trial court’s judgment suspending the husband’s obligation to pay alimony. Id. at 974.

In contrast, this court did not reverse a trial court’s judgment reducing a husband’s alimony obligation based upon a sharp reduction in his income in White, 589 So.2d at 742-43. The facts in White are markedly similar to those in the present case. The husband in White had been employed making a substantial salary when his employer filed for bankruptcy. Id. at 742. After he was dismissed from his employment, the husband sought another position, but was unsuccessful. Id. He then decided to pursue a career as a real-estate agent; however, he had not yet earned income from his efforts at the time of the trial. Id. Although we noted that the trial court had apparently considered the husband’s decreased income even though “there is no evidence that his ability to earn has been irrevocably diminished,” we still did not find the reduction of his alimony obligation, as opposed to its termination, to be error on the part of the trial court. Id. at 742.

In the present case, the former husband’s testimony was that he could not find a position “at his level” after six weeks of searching, that he had considered but rejected the idea of opening a franchise, and that he had decided to convert his lapidary hobby into a business venture. The former husband further testified that he had not yet made a profit in his new business venture. In addition, the former husband’s testimony revealed that he suffers from heart and blood-pressure conditions, that he has suffered three heart attacks and a minor stroke, and that his short-term memory has been negatively affected by his health conditions. The trial court apparently believed that the former husband could not find a suitable position after he was dismissed from McKesson and Robbins and that the former husband’s health concerns had impacted his ability to seek employment. Thus, the trial court must have concluded that the former husband’s ability to earn had been negatively impacted to an extent requiring the reduction of his monthly alimony obligation to $1,750, or half of the original obligation of $3,500. Although the evidence could have supported a different result, we are concerned only with whether the evidence supports the judgment entered; we cannot substitute our judgment for that of the trial court. Ex parte Ederer, 900 So.2d at 426.

As another ground for reversing the trial court’s judgment reducing the former husband’s alimony obligation, the former wife argues that the trial court erroneously admitted the former husband’s testimony that the former wife would be eligible to receive $1,400 per month in Social Security benefits in February 2007. The question and objections appear in the record as follows:

“Q. Will Doris be eligible [for Social Security benefits] at the same time, your ex-wife?
“MR. BOONE [counsel for the former wife]: I object to that, Judge.
“MR. BRISKMAN [counsel for the former husband]: If he knows.
“THE COURT: He can answer if he knows.
“THE WITNESS: Yes, sir.
“MR. BOONE: It would be hearsay.
“THE COURT: Go ahead.”

We first note that the former wife’s timely objection to the question asked by the former husband’s attorney at trial did not assign a specific ground, which is required to preserve an evidentia-ry error for appellate review.

“ ‘Rule 46, Ala. R. Civ. P., requires that a party state his grounds for any objection that he makes if he wishes to preserve as error the trial court’s overruling of his objection. When the grounds for an objection are stated, this impliedly waives all other grounds for the objection to the evidence, and the objecting party cannot predicate error upon a ground not stated in the trial court but raised for the first time on appeal.’ ”

Hall v. Duster, 727 So.2d 834, 837 (Ala.Civ.App.1999) (quoting Nichols v. Southeast Prop. Mgmt., Inc., 576 So.2d 660, 662 (Ala.1991)). The former wife’s hearsay objection, lodged after the former husband had answered the question, came too late. Johnson v. Johnson, 883 So.2d 690, 691 (Ala.Civ.App.2003) (quoting L.A.C. v. State Dep’t of Human Res., 890 So.2d 1026, 1031 (Ala.Civ.App.2003)) (“ ‘It is well settled that an objection that comes after the witness’s answer is too late.’ ”). On appeal, the former wife argues yet another ground — that the testimony was speculation and conjecture. Because that particular ground for the former wife’s objection was not raised in the trial court, we cannot consider it on appeal. Hall, 727 So.2d at 837.

The former wife next argues that the trial court erred by terminating the former husband’s obligation to maintain a life-insurance policy on his life naming the former wife as an irrevocable beneficiary. As the former wife correctly states, the provision in the divorce judgment requiring the former husband to maintain a life-insurance policy naming her as an irrevocable beneficiary is treated as either an award of alimony in gross or as part of a property division. Rose, 496 So.2d at 86; and Slaton v. Slaton, 455 So.2d 34, 34 (Ala.Civ.App.1984). Because of its characterization as either an award of alimony in gross or as a part of the property division, the insurance provision is nonmodifiable after the lapse of 30 days from the entry of the divorce judgment. Id. The trial court erred by terminating the former husband’s obligation to maintain a life-insurance policy for the benefit of the former wife.

Based on the evidence at trial, the trial court had before it sufficient evidence from which it could have concluded that the former husband had suffered a loss of actual income necessitating the reduction of his alimony obligation despite the fact that he had not necessarily suffered a diminished ability to earn. See White, 589 So.2d at 742. Because our review is limited to determining whether the evidence supports the trial court’s judgment, Ex parte Ederer, 900 So.2d at 426, we affirm that portion of the trial court’s judgment reducing the former husband’s monthly alimony obligation to $1,750. We were unable to consider the former wife’s eviden-tiary issue because she failed to assert in the trial court the same ground she asserted on appeal for her objection. Hall, 727 So.2d at 837. However, we must reverse that portion of the trial court’s judgment terminating the former husband’s obligation to maintain a life-insurance policy naming the former wife as an irrevocable beneficiary because that provision, which was either an award of alimony in gross or a part of the property settlement between the parties, was no longer subject to modification. See Rose, 496 So.2d at 86.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ„ concur.


author: WISE, Judge. WELCH, Judge,

text:
    STATE of Alabama v. Wayne Lamar JENKINS.
    CR-05-1833.
    Court of Criminal Appeals of Alabama.
    May 25, 2007.
    Rehearing Denied Aug. 17, 2007.

      Troy King, atty. gen., and Tracy Daniel, asst. atty. gen., for appellant.
    Davis B. Whittelsey, Opelika, for appel-lee.
   WISE, Judge.

The State of Alabama appeals from the trial court’s grant of Wayne Lamar Jenkins’s pretrial motion to suppress evidence he says was illegally seized. See Rule 15.7, Ala. R.Crim. P.

The record indicates that on April 22, 2005, Capt. Van Jackson of the Lee County Sheriffs Department received a telephone call from an individual named Ronnie Paul, who resides at Lee Road 482. Paul said that he had seen four men who were attempting to break into his neighbor’s home at Lee Road 212. Paul provided a detailed description of the four men and described the vehicle they were driving. Shortly thereafter, sheriffs deputies stopped a vehicle in the vicinity of Lee Road 212 that matched the description given by Paul. Capt. Jackson testified that the two men inside the vehicle admitted that they had tried to break into the residence located at 100 Lee Road 482, Apartment # 2. Based on information received from the two men, the two other suspects were eventually located, and all four were arrested. Capt. Jackson stated in his affidavit in support of his application for a search warrant as follows:

“After being advised of their rights, all four subjects stated that they had attempted to break into the home because they know that the owners keeps [sic] large sums of marijuana inside the residence. One of the four defendants, Michael Stanford, stated that over the past six months, he has purchased at least an ounce of marijuana from Wayne eveiy week. According to Stanford, each of these transactions occurred in Wayne’s home and there was a large quantity of marijuana present inside the residence. The Lee County Sheriffs Office was able to confirm through a tag placed on a vehicle in the front yard of the home that Wayne Lamar Jenkins is the owner of the residence. A check of Jenkins’ criminal history revealed that he was arrested in 1979 on drug related charges.”

(C.R. 48.)

One of the four suspects apprehended by law-enforcement officers, Michael Stanford, gave an interview and stated that he tried to break into Jenkins’s apartment to steal Jenkins’s marijuana. Stanford, who knew Jenkins only as “Wayne,” stated that he had been regularly purchasing marijuana from Wayne for around six months. Stanford told police that he would buy an ounce of marijuana each week and that Wayne always had a large supply available. Stanford recalled that on one occasion, Wayne had four gallon containers that were full of marijuana. Stanford said that at the present time, Wayne probably had at least a pound of marijuana in his apartment. Stanford told investigators that he had purchased 1/2 ounce of marijuana from Wayne approximately two weeks before the attempted burglary. Stanford said that he and his three friends had been watching the apartment on the day before the attempted burglary to observe the neighborhood and prepare for their attempt.

The three other suspects all stated that they had attempted to burglarize Jenkins’s apartment to steal Jenkins’s marijuana. They stated that Jenkins kept a large amount of marijuana in his home and that they all decided to break in and steal the contraband. However, none of these three suspects had any personal knowledge that Jenkins kept marijuana inside his apartment.

A search warrant was ordered for any and all vehicles, people, or buildings located on or within the curtilage of the residence of 100 Lee Road 482, Apartment # 2, Smiths, Lee County, Alabama, identifying the address as that of Wayne Lamar Jenkins. The warrant authorized a search of the residence for any and all drugs, contraband, or items associated with, but not limited to the use, sale, and/or storage of, such items. The search warrant was issued to Capt. Van Jackson on April 22, 2005.

During the search, law-enforcement officials found over five pounds of marijuana, plastic bags, a financial ledger, a .38-cali-ber pistol with a box of ammunition, scales, a grinder, rolling papers, and approximately $5,000 in cash. Officers also found a marijuana cigarette in Jenkins’s automobile. In his statement to law-enforcement officers, Jenkins admitted that he had been selling marijuana for approximately six months. He stated that the cash found in his apartment was proceeds from the sale of marijuana. He also stated that he had previously been arrested in Russell County for driving under the influence and possession of marijuana.

In June 2006, a suppression hearing was held in the trial court. At the hearing, Capt. Jackson testified regarding the circumstances that led to his application for the search warrant. Capt. Jackson stated that on April 22, 2005, the sheriffs office received a telephone call from Ronnie Paul, who told him that he had observed four men attempting to break into a neighbor’s home. Capt. Jackson testified that Deputy Bill McQuire responded to the call and talked with Paul. Paul gave Deputy McQuire a description of the four men, along with a description of the car they were driving. Capt. Jackson said that, after receiving that information from Deputy McQuire, he spotted a car matching the description less than 1/2 mile from the scene of the attempted burglary. Capt. Jackson said that there were two men in the car and that both were taken into custody and interviewed. Before the two men were taken into custody Paul identified them as two of the individuals who attempted to burglarize Jenkins’s residence.

After the two men were taken into custody and interviewed, the names of the two remaining suspects were disclosed. Eventually all four men, including Stanford, were interviewed. Capt. Jackson testified that the four men each said that they had attempted to break into Jenkins’s apartment to steal marijuana. Capt. Jackson established that he had had no contact with Stanford before Stanford’s arrest in this case. Capt. Jackson testified that, after reviewing the statements of the suspects, he prepared an affidavit to support the request for a search warrant. Before he applied to the court for the warrant, Capt. Jackson said that he and other officers verified the identity of the individual whom one of the suspects identified as “Wayne” by running a license-plate check through law-enforcement databases with the license number on the automobile parked in front of the residence. That exercise revealed that the owner of the automobile was Wayne Lamar Jenkins. In addition, officers contacted the landlord of the apartment complex, and that individual verified that the apartment was leased to Wayne Lamar Jenkins. Capt. Jackson added that during the course of the investigation, a criminal-background check was conducted, which revealed that Jenkins had had a prior drug arrest in Russell County in 1979.

Capt. Jackson went to Jenkins’s apartment and conducted the search. During the search, Jenkins was present on the porch of the apartment with other officers. After the search concluded, Capt. Jackson interviewed Jenkins inside the apartment. Jenkins was advised of his Miranda rights. After he waived his rights, Jenkins gave a statement in which he admitted selling marijuana from his apartment.

At the conclusion of the evidence at the suppression hearing, the trial court initially denied Jenkins’s motion. Defense counsel asked the trial judge to accept a brief on the issue before it rendered its judgment. The trial court granted defense counsel’s request; the court also granted the State an opportunity to respond to defense counsel’s brief. On June 28, 2006, the trial court changed its initial denial of Jenkins’s motion to suppress and issued an order granting Jenkins’s motion to suppress.

On appeal, the State argues that the trial court erred when it granted Jenkins’s motion to suppress evidence. Specifically, the State argues that, contrary to Jenkins’s assertions that there was no probable cause to conduct a search based on the unreliable, unverified information from a confidential informant, there was sufficient probable cause to support the issuance of the search warrant, and the judgment of the trial court should be reversed.

When determining probable cause, “[a]n issuing judge’s determination that sufficient probable cause existed to support the warrant is ‘entitled to great deference and is conclusive in the absence of arbitrariness,”’ Wamble v. State, 593 So.2d 109, 110 (Ala.Crim.App.1991), quoting United States v. Pike, 523 F.2d 734 (5th Cir.1975). A reviewing court need determine only that a magistrate or judge had a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Sullivan v. State, 651 So.2d 1138 (Ala.Crim.App.1994); McCray v. State, 501 So.2d 532 (Ala.Crim.App.1986). This Court has previously stated:

“ ‘The present test for determining whether an informant’s tip establishes probable cause is the flexible totality-of-the-circumstances test of Illinois v. Gates, [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)]. The two prongs of the test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), involving informant’s veracity or reliability and his basis of knowledge, “are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Gates, [462 U.S. at 223,] 103 S.Ct. at 2329.... Probable cause involves “a practical, common sense decision whether, given all the circumstances, ... including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, [462 U.S. at 238,] 103 S.Ct. at 2332.’
“Pugh v. State, 493 So.2d 388, 392 (Ala.Cr.App.1985), aff'd, 493 So.2d 393 (Ala.1986).
“ ‘Reference to a confidential informant’s “track record” of past performances is a viable means of determining his credibility.’ Reese v. State, 456 So.2d 341, 349 (Ala.Cr.App.1982), cert. denied, 464 U.S. 838, 104 S.Ct. 127, 78 L.Ed.2d 124 (1983). See also Moynes v. State, 568 So.2d 392, 393 (Ala.Cr.App.1990); Carter v. State, 435 So.2d 137, 139 (Ala.Cr.App.1982).... In addition, corroboration supplied by the personal observations of the police officers lends support to the reliability and veracity of the informant. See Moynes, 568 So.2d 392; Dale v. State, 466 So.2d 196 (Ala.Cr.App.1985).”

Money v. State, 717 So.2d 38, 42-43 (Ala.Crim.App.1997). Additionally, the State is not required to show that the informant has proven to be reliable any particular number of times. See Reese v. State, 456 So.2d 341 (Ala.Crim.App.1982).

“The fact that a confidential informant has not supplied information numerous times does not mean that the informant is not reliable. Kirk [v. State,] 612 So.2d [1252] at 1254 [ (Ala.Crim.App.1993)]. Common sense dictates that a confidential informant ‘must be a first time informer before [the informant] can inform a second time.’ 612 So.2d at 1254.”

Usery v. State, 668 So.2d 919, 921 (Ala.Crim.App.1995).

The record contains the order of the trial court granting Jenkins’s motion. In that order, the trial court found that because the search warrant contained the general term “drugs” rather than a more specific designation “marijuana,” the search warrant permitted law-enforcement officers to conduct an unconstitutional general search for any and all drugs. Because the affidavit in support of the request for the search warrant specifically identified “marijuana,” the trial court held that the search warrant should have been equally specific.

In addition, the order indicates that the trial court found that the statements from the three other suspects who were with Stanford when the attempted burglary occurred did not support that portion of the affidavit in which Capt. Jackson stated that all four suspects said that they knew that the resident of the apartment kept large amounts of marijuana inside the apartment. The trial court further stated that the three other suspects knew about the marijuana only because the fourth suspect, Stanford, told them about it and not, as the affidavit stated, from personal knowledge. The trial court notes that in his statement to police, Stanford did not say that each time he bought drugs from Jenkins the drug transactions took place in Jenkins’s apartment.

The trial court also found that, although Stanford’s statement supported Capt. Jackson’s averment regarding large amounts of marijuana kept at Jenkins’s apartment, Capt. Jackson never addressed Stanford’s credibility. The trial court specifically noted that there was no comment on Stanford’s reliability as an informant, there were no underlying circumstances identified from which Jackson could have concluded that the informant was credible or that his information was reliable.

In any event, the court did find that Stanford’s statements that he had been purchasing marijuana from Jenkins for approximately six months and that he bought over an ounce of marijuana in one week’s time established that the period of two weeks since his last purchase of 1/2 ounce of marijuana was not a period of time that would, if supported by additional information, be too stale to allow the issuance of a search warrant.

Here, we believe that the trial court incorrectly determined that the search warrant authorized an unconstitutional “general search” for all drugs in Jenkins’s apartment. We recognize that

“[gjeneral exploratory searches and seizures, with or without a warrant, can never be justified and are forbidden and condemned. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). The specific command of the Fourth Amendment to the Constitution of the United States is that no warrants shall issue except those ‘particularly describing the ... things to be seized.’
“However, the description of things to be seized contained in the warrant under review is not so broad that the authorization constitutes a general exploratory search. Certainly, ‘an otherwise unobjectionable description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based.’ Vonder[A]he v. Howland, 508 F.2d 364 (9th Cir.1974); W. LaFave, 2 Search and Seizure, Section 4.6, n. 11 (1978)(hereinafter Search).
“However, a less precise description is required of property which is, because of its particular character, contraband.
“‘“If the purpose of the search is to find a specific item of property, it should be so particularly described in the warrant as to preclude the possibility of the officer seizing the wrong property; whereas, on the other hand, if the purpose is to seize not a specific property, but any property of a specified character, which by reason of its character is illicit or contraband, a specific particular description of the property is unnecessary and it may be described generally as to its nature or character.” ’
“2 Search, p. 101, citing People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970).”

Palmer v. State, 426 So.2d 950, 952 (Ala.Crim.App.1983).

Thus, in the instant case, the search warrant sufficiently described that law-enforcement officers were authorized to search for illicit drugs, which would include, but not be limited to, marijuana. Thus, the search was lawful, and the trial court erred when it granted Jenkins’s motion to suppress.

The State also argues that the trial court eri'ed when it found that the prosecution had failed to establish the reliability of Michael Sanford, who supplied police with the information about the marijuana inside Jenkins’s apartment. At the suppression hearing, both defense counsel and the trial court referenced Sanford as an “informant.” Jenkins’s argument on appeal is that no proof was offered that Sanford had assisted law enforcement in the past, and there was no proof of his veracity.

As noted in this opinion, this Court has previously held that the fact that an informant has never given information before does not suggest that his information is per se unreliable. See McCray v. State, 501 So.2d 532 (Ala.Crim.App.1986).

Based on the totality of the circumstances, the search warrant was supported by probable cause. Accordingly, the order denying the motion to suppress is reversed and this case is remanded to the circuit court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, J., concurs. BASCHAB, P.J., and SHAW, J., concur in the result. WELCH, J., concurs in the result, with opinion.

WELCH, Judge,

(concurring in the result).

In its opinion reversing the trial court’s order granting Jenkins’s pretrial motion to suppress evidence, the main opinion holds that the trial court’s ruling was in error because, it reasons, the warrant authorized law-enforcement officers to conduct a search for “drugs,” and that description was constitutionally sufficient. In reaching its conclusion, the main opinion relies upon this Court’s decision in Palmer v. State, 426 So.2d 950 (Ala.Crim.App.1983). However, because Palmer is distinguishable from the instant case, I disagree with the main opinion’s analysis as to this issue. Therefore, I concur in the result.

Palmer involved a challenge to a warrant that authorized a search for “ ‘cocaine, ... or any other illegal substances as described under the provisions of the Alabama Uniform Controlled Substances Act.’ ” 420 So.2d at 952. This Court determined that the portion of the warrant authorizing a search specifically for cocaine was constitutionally sufficient and was severable from the portion authorizing a search for “any other illegal substance,” which was deemed invalid for lack of probable cause. Ultimately in Palmer the drugs were admitted under the plain-view exception to the warrant requirement.

In the present case, the description in the warrant of “drugs,” even if characterized as illicit or contraband, is vague and overly broad, because it is a generic term that could potentially apply to a wide variety of items. However, the good-faith exception articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is applicable to the facts of this case. Because the officers’ reliance on the determination of the magistrate who issued the search warrant and found probable cause to exist was objectively reasonable, suppression of the contraband seized pursuant to the warrant was inappropriate. Therefore, I concur in the result.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In Peavy v. State, 336 So.2d 199, 201 (Ala.Crim.App.1976), this Court determined that a search warrant describing " '[a]ny controlled substances prohibited by the laws of the State of Alabama’" failed to pass constitutional muster in that it authorized a general exploratory search.