Appeal from Colbert Circuit Court. (DR-93-129). N. Pride Tompkins, TRIAL JUDGE.
Released for Publication March 4, 1995.
The opinion of the court was delivered by: Wright
WRIGHT, Retired Appellate Judge
Following oral proceedings, the Circuit Court of Colbert County divorced the parties, awarded physical custody of the two minor children to the wife, ordered the husband to pay child support, made a division of the marital assets, and reserved the right to award alimony in the future. The wife appeals.
The record reflects that the parties were married in 1976 in Teheran, Iran. Five months after the marriage the parties relocated to California. At that time the wife spoke no English. The wife testified that she has studied English as a second language but that she is not proficient in the language as far as being able to read and write it. She attempted to learn the language and certain other skills while in California. She testified, however, that her husband discouraged her from working. At the time of the hearing the wife was working in a manufacturing plant as a seamstress, earning $5.00 per hour.
At the time of the hearing the husband was employed by Lockheed Missile and Space Company, earning approximately $5,542 per month. There was speculation that he could possibly lose his job. The husband testified that the marital problems began after the wife decided to convert from the Moslem religion to the Jehovah's Witness religion.
Prior to the proceedings, the parties sold the marital home. The wife received $122,720 from the sale of the home, and the husband received $111,560. Approximately one week after the separation, the wife, without the husband's knowledge, retrieved $9,500 from a line of credit at Lockheed Credit Union. The husband did not pay any support from March 1993, the time of the separation, until February 1994, when he was ordered to do so by the trial court.
At the time of the hearing the wife was 40 years of age and the husband was 52. The parties have two daughters--ages 16 and 8. Both parties are in good health.
The trial court awarded the wife a house in California, valued at $245,000. The house carries a $190,000 mortgage. She was also awarded an unencumbered piece of property in California, worth $8,000. The wife was awarded all the furniture in the marital home, with an approximate value of $35,000; three automobiles, with a cumulative value of $31,000; and the contents of a safety deposit box, with an approximate value of $40,000. The wife was ordered to assume a $12,000 note on one of the vehicles. She was ordered to pay $3,300 in capital gains tax from the sale of the marital residence, $14,000 toward the parties' 1991-92 income taxes, and $4,500 to Redstone Credit Union. She was further ordered to repay the $9,500 that she retrieved from the Lockheed Credit Union. The court refused to award alimony. It, however, reserved the right to do so.
The husband was awarded a piece of unencumbered property in South Carolina, worth $36,000; a Mercedes automobile, worth $12,000; his 401(k) plan, valued at $95,000; and his retirement plan, valued at $89,000. He was ordered to pay the same amount of capital gains tax and income tax as the wife; he was ordered to assume the $11,000 loan taken against his 401(k) plan and to assume the debt of $4,500 to Redstone Credit Union.
Initially, the wife asserts that the trial court erred by not following the mandates of Rule 32, A.R. Jud. Admin., in setting child support.
The child support guidelines are mandatory in all actions filed after October 9, 1989. The trial court may deviate from the guidelines only where there is a fair, written agreement between the parties setting the amount of child support to be paid or where "upon a finding of fact, based upon evidence presented to the court, the court determines the application of the guidelines would be manifestly unjust or inequitable." Rule 32(A)(i) and (ii), A.R. Jud. Admin.
The husband calculated that based upon the guidelines, he would be responsible for $1,067 in monthly child support. The wife's similar calculations estimated the husband's monthly support obligation to be between $1,127 and $1,236. ...