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Kizale v. Kizale

Alabama Court of Civil Appeals

December 1, 2017

Edward Kizale
v.
Nancy Kizale

         Appeal from Morgan Circuit Court (DR-13-900174.01)

          THOMAS, JUDGE.

         Edward Kizale ("the former husband") and Nancy Kizale ("the former wife") were divorced by a September 2014 judgment of the Morgan Circuit Court ("the trial court"). The parties had previously been awarded custody of their grandchildren after the death of the grandchildren's mother, the parties' daughter; the September 2014 divorce judgment awarded the parties joint legal custody and the former wife sole physical custody of the grandchildren. Among other things, the September 2014 divorce judgment also ordered the former husband to pay $898 in child support each month and to "assume ..., indemnify, and hold harmless the [former] wife from liability" and to "remove her name as a joint user" on the following specified debts: the balance owed on the Wells Fargo PMA Visa card, the balance owed on the Wells Fargo line of credit, the Bank of America debt, and the Chase debt (hereinafter referred to collectively as "the specified debts"). The former husband's $898 per month child-support obligation was originally based on the former husband's imputed 2014 annual income of $43, 500 and the former wife's imputed minimum-wage income (amounting to $1, 257 per month); however, during the pendency of the former husband's postjudgment motion directed to the divorce judgment, the parties reached an agreement, which the trial court approved, that the former husband would pay $800 per month in child support. The September 2014 divorce judgment specifically determined that both parties were voluntarily underemployed.

         In September 2015, the former wife filed a petition seeking to hold the former husband in contempt for, among other things, failing to timely pay child support as ordered and failing to remove her name as a joint user from the Bank of America and Wells Fargo accounts. The former husband answered the former wife's petition, generally denying that he was in contempt, and counterclaimed, seeking a reduction of his child-support obligation and that the former wife be held in contempt for failing to permit certain visitation. Both parties sought an award of attorney fees.

         Although certain issues were determined in a February 15, 2016, order, the trial court held a trial on the contempt, child-support, and debt issues in May 2016. The trial court entered a final judgment in August 29, 2016 ("the contempt judgment"), determining that the former husband was in civil and criminal contempt for failing to remove the former wife's name from the accounts related to the specified debts and declining to modify his child-support obligation. Regarding the provision requiring the former husband to assume liability for the specified debts, the contempt judgment states:

"The Final Decree requires [the former husband] to assume and pay the [specified] debts. The Final Decree also required [the former husband] to remove [the former wife's] name from [the specified] debt[s]. ...
"[The former husband] admits that he has failed to refinance [the specified] debt[s] or otherwise put the [specified] debt[s] in his sole name, and testified that he 'wasn't sure that was the best course of action.' The Court finds that he has not complied with the Orders of the Final Decree and has had the ability to do so. Therefore, the Court finds beyond a reasonable doubt that [the former husband] is in criminal contempt and continuing civil contempt of court for failing to abide by the Order in the Final Decree. ... To purge himself of civil contempt, [the former husband] shall, within ninety (90) days, refinance the Wells Fargo debts, the Bank of America debts, and the Chase debt, which is in the joint names of the parties, as previously Ordered, and shall finance [the specified debts] in his name only."

         The trial court sentenced the former husband to a period of incarceration but suspended that sentence. The contempt judgment further ordered the former husband to pay $1, 500 toward the former wife's attorney fees and pronounced that any relief specifically requested but not awarded was denied. After his postjudgment motion was denied by operation of law, see Rule 59.1, Ala. R. Civ. P., the former husband timely appealed from the contempt judgment.

         The testimony at the contempt trial reflects the following facts. The former husband is self-employed. At the time of the divorce trial, the former husband was apparently earning money by "flipping" houses. He had also invested in some parcels of real property, which property he had sold, some at a loss, after the divorce. Detailing the profit and loss on each property is unnecessary, because the trial court stated in the contempt judgment that "most of these investments did not realize substantial income, " and the trial court did not consider the losses sustained to be so substantial and continuing as to warrant a modification of the agreed upon child-support obligation. The former husband does not challenge those findings on appeal.

         The former husband explained that he had decided to leave the real-estate investment market and to pursue a new business opportunity -- creating a company "to provide wireless internet and loyalty and customer targeting services to its customers." The former husband explained that he had invested quite a bit of time to learn about and to develop a cellular-telephone application that would serve these purposes, and he testified that, within a month of the contempt trial, he expected to be earning $6, 000 per month from this venture. He said that he had been living off of his retirement funds and had utilized those funds to pay his child-support obligation since the entry of the September 2014 divorce judgment. According to the former husband, he had, at the time of the trial on the contempt action, $6, 400 in an individual retirement account and $4, 000 in an "Edward Jones account." He said that the $800 per month child-support figure had been "flawed" because he had not really been realizing rental income from his investment properties at the time of the entry of the September 2014 divorce judgment and that he had been living off of his retirement funds even then.

         The trial court asked the former husband, whom it had specifically concluded in the September 2014 divorce judgment was underemployed based on his previous employment and his education level, why he could not work a full-time job and use his spare time to create his new business until it became successful instead of living off of his dwindling retirement accounts and seeking a reduction in his child-support obligation. The former husband explained:

"I feel victimized here. I'm the only parent involved in maintaining the lifestyle for my [grandchildren]. I wish the other side of this equation would try to contribute to the welfare of the [grandchildren]. I'm sort of taking this exception to having this burden completely put on myself. I'm doing my best to take care of the [grandchildren], and I think that is -- the best for myself and my [grandchildren] to get them into a position where their future is secure. I'm trying to get them involved with this business. I've applied for Boulder, Colorado, to do a programming job. Part of the problem is I'm technologically obsolete. The languages and the operating systems I have worked on are obsolete. Everything is cloud based. It's in the cloud. No one uses that. So I'm at a disadvantage. I cannot get the kind of salary to maintain the --my earn rate, my debt ratios, for the month. I need to get something that goes beyond working -- or working at [a discount retailer]. That's not going to pay the bills. It may pay the $800 a month [in child support], but it's just not going to work out."

         The former husband testified that he believed that he could pay $500 per month in child support for the next year. He said that he would be happy to return to court the following year to recalculate child support when, he said, he expected to be earing $10, 000 per month. The trial court appended to the contempt judgment a child-support-guidelines form indicating that the trial court had imputed income of $3, 625 per month to the former husband and income of $1, 797 per month to the former wife[1] to calculate a monthly child- support obligation of $761.12. The trial court specifically noted that, although the former husband's current child-support obligation of $800 per month exceeded the amount calculated pursuant to the guidelines, the variance was less than 10% and, thus, the rebuttable presumption in favor of a modification set out in Rule 32(A)(3)(b), Ala. R. Jud. Admin., was not applicable.

         Regarding the provision in the September 2014 divorce judgment requiring the former husband to assume the specified debts, the former husband testified that he had attempted to remove the former wife as a joint user of the accounts related to the specified debts. He said that "Wells Fargo will not allow it, nor will the Bank of America, and I have a reason [sic] statement to show that." Later, the former husband mentioned having repeatedly attempted to have the former wife removed from the accounts related to the specified debts and stated that he had received a letter from Bank of America regarding his request. However, the record contains no documentary evidence indicating that Wells Fargo or Bank of America had declined any request by the former husband to have the former wife removed from the accounts related to the specified debts. Counsel for the former wife questioned the former husband about his efforts to assume the liability for the specified debts:

"[Former wife's counsel]: You haven't attempted to consolidate the[] [specified] debts and work with a debt consolidation agency to remove her name ...

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