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Seymour v. Seymour

Alabama Court of Civil Appeals

June 30, 2017

Julia Yi Seymour
v.
James Allen Seymour, Jr.

         Appeal from Madison Circuit Court (DR-09-82.01)

          MOORE, JUDGE.

         Julia Yi Seymour ("the former wife") appeals from a judgment of the Madison Circuit Court ("the trial court") addressing her petition for contempt and for modification of certain provisions of the trial court's February 27, 2009, judgment divorcing her from James Allen Seymour, Jr. ("the former husband"). We affirm the judgment.

         Procedural History

         As previously stated, the parties were divorced by a judgment of the trial court entered on February 27, 2009; that judgment incorporated an agreement entered into by the parties and awarded the parties joint legal custody of their five children, who were minors at the time, with the former husband being awarded sole physical custody and the former wife being awarded certain specified visitation. The parties' agreement provided, among other things, that the former wife was not required to pay child support to the former husband as a result of several specified relevant factors. The former husband was directed to execute all documents necessary for the former wife to recover 42.5% of his military-retirement benefits; he also agreed "to sign paperwork allowing the [former] wife to collect the survivor benefit" of his military-retirement benefits. With regard to alimony, the former husband was ordered to pay the former wife rehabilitative alimony for 60 months, with the sum of the 42.5% of the former husband's military-retirement benefits and the rehabilitative-alimony award to total $3, 000 per month; the judgment also stated that "the [former] husband shall give the [former] wife two hundred dollars per week for the children to spend with the [former] wife" ("the children's money"). The agreement specifically reserved the issue of periodic alimony.

         On June 24, 2014, the former wife filed a "petition to modify alimony and custody and for rule nisi." She asserted, among other things, that the former husband had failed to comply with certain aspects of the divorce judgment. The former wife sought to have the former husband held in contempt for his failure to comply with those provisions of the divorce judgment; she also sought an award of periodic alimony, a modification of the custody of the one child of the parties who was still a minor, and an award of attorney's fees. The former husband filed an answer to the former wife's petition on July 21, 2014. A trial was conducted on July 6, 2015. On August 4, 2015, the trial court entered an order indicating that the parties had presented contradictory evidence regarding the payments made by the former husband to the former wife with regard to rehabilitative alimony and the children's money and that it was "in need of clarification from the parties." The trial court "reopen[ed] the evidence, " set the matter for a hearing, and requested that the parties present additional evidence. Following the clarification hearing on January 15, 2016, the trial court entered a final judgment on May 18, 2016, awarding the former wife the amount of $22, 996.44 with regard to the former husband's arrearages of rehabilitative alimony and the children's money and denying all other requested relief. The former wife filed a postjudgment motion on June 14, 2016. On June 17, 2016, the former husband filed a postjudgment motion. A hearing on those motions was conducted on July 13, 2016; however, the trial court failed to enter an order adjudicating either party's postjudgment motion. The former wife filed her notice of appeal to this court on August 12, 2016; the appeal was held in abeyance pending the disposition of the postjudgment motions.[1] See Rule 4(a)(5), Ala. R. App. P.

         Standard of Review

"'In a case in which the evidence is presented to the trial court ore tenus, such as this one, the findings of the trial court are presumed correct and will not be set aside unless they are plainly and palpably wrong or unjust.' Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala. 1991). 'Furthermore, where the trial court does not make findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous.' Ex parte Walters, 580 So.2d 1352, 1354 (Ala. 1991)."

Brown v. Brown, 26 So.3d 1210, 1213-14 (Ala. Civ. App. 2007).

         Facts

         The former wife testified that she first came to the United States in 1987, that she had completed high school in Germany before moving to the United States, and that English is not her first language. She stated that she and the former husband had been married for 22 years at the time they divorced. According to the former wife, the former husband was in the military when they married, had retired from the military in 2006 and had begun working in the private sector, and had earned more each year since leaving the military. The former wife testified that the most she had earned during the parties' marriage was $13 per hour working temporary or seasonal jobs. She stated, however, that, at the time of the divorce, she had been working as the general manager of a smoothie café and that she had had an ownership interest in that business. The former wife testified that she had given up her interest in and had closed that business because, she said, she had been unable to operate the business during the parties' divorce proceedings. She stated that she had worked at a hospital for three months after she had left the smoothie café, but, she said, that employment had been only temporary. The former wife stated that she had applied to Drake Technical College ("Drake"), that she had been accepted, but that, because her high school in Germany could not find her transcript, Drake had asked her to complete their program for obtaining a general equivalency diploma before attending the college. She testified that she had attended that program to improve her English, but, she said, she had left the program because she was "burnt out" and depressed. She stated that she had taken many classes but that they were often not credited. According to the former wife, she had been unable to secure full-time employment since the divorce. She stated that she had begun a part-time job as an associate at Kay Jewelry the week before the trial and that she was in training at the time of the trial. The former wife testified that she was working 20 hours a week at Kay Jewelry, earning $8 an hour, for a gross income of $640 per month.[2] She stated that her training would continue another 60 to 90 days and that, following her training, she would begin to earn commissions on her sales. The former wife testified that she also receives an amount each month from the former husband's military-retirement benefits and that the amount she receives each month had increased to $1, 107 in January 2015.

         The former wife stated that, at the time of the parties' divorce, she had moved into the former husband's apartment, where he had paid the rent, and that, when that lease had expired, she had moved into the marital home with the former husband for approximately three months. She testified that she had moved out of the marital home in October 2009 when she purchased her own home. With regard to a vehicle, the former wife testified that the parties had agreed at the time of the divorce that she would use the former husband's van, which she had used during the parties' marriage. According to the former wife, she had continued driving the former husband's van until the former husband had asked her to return it, at which time, she said, she had purchased her own vehicle, a Toyota Corolla, in January 2010. The former wife testified that, beginning in 2009, the former husband had spoken to her about a decrease in his income and had told her that he wanted to pay her less than he was required to pay under the divorce judgment, but, she said, she had not agreed to any reduction in payments. She stated that, in other months, the former husband had indicated that he had earned less money and that he wanted to pay her less, but, she said, he had agreed to pay what he could afford at the time and to repay her the remaining amounts. The former wife testified that the former husband had repaid some of what he had owed her but that he had not repaid the full amount owed. The former wife testified that the former husband had also unilaterally reduced the amount of the children's money that he had paid her as each child had reached the age of 18. She stated that, at the time of the modification trial, only one of the parties' children was still a minor.

         According to the former wife, the former husband's failure to pay her the full financial obligations required by the divorce judgment had resulted in her losing her house and her vehicle, and, as a result, she said, her credit had been negatively affected. She testified that she had moved to Georgia for three months in 2011 after her house had been foreclosed upon because, she said, she had not had anywhere to live and she had been allowed to stay in a guest home at a chapel in Georgia. The former wife stated that she had been offered employment at a hotel/restaurant in Georgia but that she had returned to Alabama in June or July 2011 because the former husband had informed her that he was able to resume making his full rehabilitative-alimony payments. The former wife admitted that she had not sought employment after she returned from Georgia. She stated that she had taken courses to become certified as a chaplain and that she was performing services as a chaplain without pay.

         The former wife testified that, after her Toyota Corolla automobile had been repossessed in 2010 or 2011, she had purchased another Toyota Corolla automobile, but, she said, she had given that automobile to her daughter and had purchased a 2012 Nissan Maxima automobile. She stated that the Maxima had had some problems, so, four months later, she had been fully refunded the money she had paid for that vehicle and had purchased a Toyota Yaris automobile. The former wife stated that her daughter had been driving the former wife's Toyota Yaris automobile when she was involved in a motor-vehicle accident that had totaled the automobile, so, she said, she had purchased a 2014 Toyota Prius automobile in 2014 for approximately $15, 000. The former wife testified that the loan for the Toyota Prius is in her daughter's name and that she pays $300 to the daughter each month to make the payment on that loan. According to the former wife, she had also purchased land in 2012 for $15, 000, and, she said, the title to that land is in her name but the loan with which the land was purchased is in her daughter's name because the former wife does not have good credit. The former wife stated that there is a mobile home on that property.

         According to the former wife, she had been living with her daughter and her daughter's family in their house since 2011. She testified that six people live in that house, which has three bedrooms, and that she did not want to continue living with her daughter. The former wife submitted an exhibit outlining her proposed living expenses. Although she testified that she was paying her daughter approximately $400 per month in addition to $300 she pays her for the payments on the Toyota Prius, the former wife estimated that her monthly rent or mortgage payments would cost $950 and that she would have additional monthly expenses for telephone, electricity, gas, water, sewer, cable, waste removal, and maintenance. The former wife stated that she had based the amounts for those items on what she had paid at her house that had been foreclosed on. The former wife admitted that, at the time of the trial, she was paying $28 per month for health insurance because her income is so low, despite her having included $275 per month for insurance on the exhibit she submitted to the trial court.

         With regard to the former wife's survivor benefit resulting from the former husband's military retirement, she testified that the former husband had told her that she could not receive that benefit because she had failed to file for it within a year of the parties' divorce judgment having been entered. She testified that she had not known that her signature was required to perfect her receiving that benefit. (R. 75). The former husband testified that he had inquired and learned that the former wife was required to have filed paperwork within a year of the entry of the divorce judgment to have the survivor benefit permanently assigned to her. He admitted that he had not assisted the former wife in obtaining that benefit; he testified, however, that the former wife could file an appeal seeking to receive that benefit despite having missed the one-year deadline. He also testified that, at the time of the modification trial, the former wife was listed as the survivor beneficiary regarding his retirement benefits.

         The former husband testified that, at the time of the modification trial, he was self-employed by his company, Mercury Group, LLC, and that he was also performing consulting work for his former employer. He stated that his annual salary at the time of the trial was $130, 000. The former husband testified that he also receives military-retirement benefits of $2, 200 per month but that the former wife receives $1, 107 from that amount each month. He stated that he also receives veteran's disability benefits each month and that his total annual income is approximately $163, 000. According to the former husband, his hours had been reduced in November and December 2010, and, he said, he had not paid the former wife the full amount of his monthly financial obligations under the divorce judgment in 2011. He testified, however, that anytime he had made a change in how much he paid the former wife, it had been after consulting with the former wife and upon her having agreed to the reductions in the amounts he paid her. The former husband testified that the former wife had also agreed with the reductions he had made with regard to the payments of the children's money. He stated that the parties' agreement had indicated that the children's money was for the minor children and that he had stopped making a portion of those payments as each child turned 18; he stated that he had not realized that, according to Alabama law, the age of majority is 19 years. The former husband also testified that he had stopped paying the former wife the children's money at the end of the 60-month rehabilitative-alimony period.

         According to the former husband, he believed that he had made all the payments required by the divorce judgment. He admitted that the former wife had been dependent on his monthly payments to pay her bills. He also testified, however, that the former wife has the ingenuity and determination to obtain a business, that she lacks motivation and "the ability to do things right, " but that she has the ability to make money and to pursue opportunities and does not do so by choice. The former husband asserted also that the former wife had lied about being unable to obtain her high-school transcripts from Germany. With regard to the provision of the divorce judgment requiring the former husband to provide the former wife with a vehicle, the former husband testified that the former wife had returned his van to him after she had purchased her first Toyota Corolla automobile because, he said, she had told him that she did not want to maintain the van because it used too much gas and because she had obtained her own vehicle.

         Analysis

         Periodic Alimony

         The former wife first argues on appeal that the trial court erred in failing to award her periodic alimony. A trial court can award a former spouse periodic alimony after the expiration of a period of rehabilitative alimony when, as happened in this case, it has reserved jurisdiction to do so. See Stanford v. Stanford, 34 So.3d 677, 680 (Ala. Civ. App. 2009). The reservation of jurisdiction empowers a trial court to consider whether a material change of circumstances has occurred since the last judgment addressing alimony, see Wilson v. Wilson, [Ms. 2150259, Oct. 21, 2016] ___ So.3d ___ (Ala. Civ. App. 2016), and whether that change in circumstances warrants an equitable award of periodic alimony to assist the former spouse in maintaining the former marital standard of living. Stanford, supra. However, even if a party shows a material change of circumstances with regard to a periodic-alimony obligation, a trial court is not required to modify that alimony obligation. Santiago v. Santiago, 122 So.3d 1270, 1278-79 (Ala. Civ. App. 2013). "Alabama law is well settled that the modification of periodic alimony is a matter within the discretion of the trial court, and on appeal a trial court's judgment on that matter is presumed correct. Posey v. Posey, 634 So.2d 571, 572 (Ala. Civ. App. 1994)." Stanford, 34 So.3d at 681.

         In her modification petition, the former wife asserted that, since the entry of the divorce judgment, she had developed disabling depression and that the former husband had failed to designate her as the survivor beneficiary of his military-retirement benefits, thereby requiring the former wife to save for her own retirement fund. The former wife testified that she has "some depression" and that it "somewhat" affects her ability to work. However, at the time of the trial, the former wife testified that she was employed as an associate at a jewelry store; that her training would continue another 60 to 90 days; that she was currently earning $8 per hour and working 20 hours a week for a gross income of $640 per month; and that, after she completed her training, she would begin to receive commissions from her sales. In comparison, at the time of the entry of the divorce judgment, the former wife was working at a smoothie café and, according to her testimony at trial, earning no income despite her ownership interest in that business. From that evidence, the trial court could have determined that any depression from which the former wife suffers had not prevented her from working and earning more income than she was earning at the time of the entry of the divorce judgment.

         With regard to the survivor benefit, the record shows that, at the time of the entry of the divorce judgment, the former wife was named as the beneficiary of the former husband's military-retirement benefits upon his death. Upon the divorce, the former wife needed to execute within one year necessary documents to continue her beneficiary status, but the former wife had failed to execute those documents. Nevertheless, the former husband testified that he had not changed the beneficiary designation and that the former wife could appeal to have the survivor benefit secured. Accordingly, the trial court could have determined that the former wife remained entitled to the survivor benefit and that the former wife did not need to divert her income to retirement savings as the former wife had claimed.

         "The obligation to pay periodic alimony may be modified when there has been a material change in the financial or economic needs of the payee spouse and the ability of the payor spouse to respond to those needs." McKenzie v. McKenzie, 568 So.2d 819, 820-21 (Ala. Civ. App. 1990). The burden of proving the existence of a material change in circumstances is upon the moving party. Boudreaux v.Boudreaux, 550 So.2d 1030, 1031 (Ala. Civ. App. 1989). Based on the foregoing evidence, showing that the income of the former wife had actually increased since the entry of the divorce judgment and that the survivor-beneficiary designation had not been lost, the ...


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