from Mobile Circuit Court (DR-15-901331)
David Myers ("the husband") has appealed from a
judgment of the Mobile Circuit Court ("the trial
court") that, among other things, divorced him from
Kimberly Berry Myers ("the wife"). The husband
challenges the judgment insofar as it awards alimony to the
wife, divides the parties' property, orders the husband
to pay the private-school tuition for the parties' minor
child, and fails to award joint legal custody of the child to
the parties. We reverse the judgment and remand the cause.
and Procedural History
parties were married in 1993 and had two children born during
their marriage, L.M. ("the minor child") and W.M.
("the oldest child"). Only L.M. remained a minor at
the time of the divorce proceedings.
husband filed a complaint for a divorce in September 2015 in
which he sought, among other things, an equitable division of
the parties' property and an "appropriate
determination concerning custody of and visitation with the
parties' minor child." The wife filed an answer and
a counterclaim for a divorce in which she asserted, among
other things, that she "is the fit and proper person to
be entrusted with [the minor] child's care and custody
subject to supervised visitation" with the husband.
December 2015, after holding an "office conference,
" on the parties' pending motions regarding
visitation, the trial court granted the husband supervised
visitation with the minor child. The trial court also ordered
the family to submit to a psychological evaluation.
trial court held a trial on September 30 and October 4, 2016.
The testimony indicated that the husband had developed a
successful veterinary practice during the parties'
marriage. The husband testified that he gave the wife
approximately $14, 500 each month to deposit in the
parties' joint bank account and that all of their
expenses were paid from that account. The husband testified
that, after he filed for a divorce, he began depositing $3,
000 into the parties' joint account but that he had
continued to pay all of their joint expenses. The husband
testified that marital problems began in May 2015, when he
told the wife to pay the oldest child's college tuition
out of their savings account rather than his business
account. The husband testified that "there was never
enough" money for the wife during the marriage.
husband was unable to answer many questions regarding his
income or other financial matters and testified that his
accountant had handled those issues. The accountant's
testimony indicated that the husband earns the Social
Security limit each year, which she testified is currently
$118, 000, but that he also receives stockholder dividends
and rental income of $225, 000. In 2015, the husband earned
an income of $414, 000. The evidence indicated that at the
time of the trial, the husband had financial accounts
totaling approximately $1 million.
husband testified that he and the wife attended marriage
counseling three times but that the wife had refused to go
back to counseling. According to the husband, the wife and
the children left the marital residence and moved in with the
wife's parents in July 2015. The husband testified that
he filed for a divorce in September 2015 because the wife had
"done everything in her power to alienate my kids."
The husband testified that he had been visiting with the
minor child at a family-visitation center during the divorce
proceedings and that it had been "terrible." The
husband testified: "She cries, she's rude, she is
disrespectful. She tells me she will never go anywhere with
me, she will run away, she hates me."
wife testified that the husband had provided financially for
the family during the marriage and that she had stayed home
with the parties' children for the majority of the
marriage. The wife testified that she believed that the
husband had had an affair approximately 10 years before the
divorce action was commenced but that they had remained
together. The wife also testified that the husband had
"rage" problems, that he would become angry and had
thrown items, but that he had not directly physically harmed
her or the children.
wife testified that the husband would give her three checks
totaling approximately $14, 500 each month and that she would
deposit the checks into their joint bank account. The wife
testified that the husband had handled all the financial
matters during the marriage and that she did not know how
much income he earned until the divorce proceedings.
According to the wife, the husband had not been very involved
in the children's lives. The wife testified that,
beginning in 2005, the husband was gone every weekend to
participate in clay-shooting tournaments and that he began
drag racing in 2012. The wife also testified that the
husband, in recent years, had begun spending the majority of
his time at work and at a home the parties owned in Dauphin
Island. The oldest child also testified that the husband had
often been absent from her and the minor child's lives
and that she had "no relationship" with the
husband. The oldest child recounted a few instances in which,
she asserted, the husband had displayed "rage" and
wife testified that she had relied on credit cards to pay her
expenses since the divorce proceedings began. She testified
that, although she intended to secure employment, she was not
sure if or when that would happen. The wife asked the trial
court to award her $3, 000 in monthly child support, $10, 000
in monthly periodic alimony, and half of all the parties'
and the husband's financial accounts, among other things.
October 13, 2016, the trial court entered an order divorcing
the parties. That order provides, in pertinent part:
"2. By agreement of the parties, the primary residential
custody of the minor child is awarded to the wife.
"3. The [husband's] visitation shall be as follows
by agreement of the parties: He shall complete two more
visitations at the Family Center. Then he shall have the
following two Saturdays in a row from 9:00 a.m. to 5:00 p.m.
He shall be accompanied by at least one of his relatives
during the visitation. Thereafter, the visitation shall be
standard visitation as set out below ....
"6. With respect to child support, the Court does award
the wife child support in the amount of $2, 000 per month.
"8. With respect to the private school ... the husband
shall pay the private school tuition ... for the [minor]
child for the remainder of this school year. He shall
continue to pay the private school tuition pending further
orders. However, if the visitation continues to be a problem
still at the end of the school year, upon proper motions
being filed with the Court, the Court will consider whether
or not he shall be responsible for paying for the private
school tuition solely.
"9. With respect [to] periodic alimony, the Court does
award the wife $10, 000 per month for five years and
thereafter, she is awarded $7, 000 per month. The Court does
note that the husband earns over $700, 000 per year and has
additional benefits from his employment at this stage of his
life and that the totality of circumstances make this award
fair and reasonable.
"11. With respect to the Hunter house, the wife shall
have first right of refusal to buy the husband's interest
out of same house for one-half of the equity in the house and
assuming the refinancing of the mortgage into her sole name.
If she does not exercise her first right of refusal within 90
days, the property shall be sold on the open market to the
highest bidder. The wife shall be allowed to remain in the
homeplace until it sells and shall be responsible for the
mortgage and property taxes and insurance and upkeep of the
house pending the sale. If the husband pays the mortgage, he
may deduct it from the alimony.
"12. With respect to the Dauphin Island house, the
husband shall have first right of refusal to buy the
wife's interest out of same house for one-half of the
equity in the house and assuming the refinancing of the
mortgage into his sole name. If he does not exercise his
first right of refusal within 90 days, the property shall be
sold on the open market to the highest bidder. The husband
shall be allowed to remain in the Dauphin Island house until
it sells and shall be responsible for property taxes and
insurance and upkeep of the house pending the sale.
"13. In the event the houses are not purchased by the
parties, the Court does reserve the right to appoint a
Commissioner to sell the property to the highest bidder for
cash and any profit or deficiency shall be shared equally by
"14. The Court does award the clinic building and lot to
"15. The Court does award the wife a judgment in the
amount of $250, 000 against the husband representing alimony
in gross. The husband shall pay off same $250, 000 to the
wife as follows: $100, 000 within three months and the
balance within six months.
"16. The husband shall make arrangements for the
professional corporation to convey the 2013 F150 to the wife
and shall pay any indebtedness due thereon, if any. The
husband shall make arrangements for his veterinarian
professional corporation to convey the 2011 4-Runner to the
parties' daughter, [W.M].
"17. The husband shall be awarded all other interest in
the veterinarian professional corporation, including the
equipment and all assets, and shall be responsible for all
indebtedness, if any.
"18. The husband is awarded the one-third interest in
the boat, the golf-cart, the Seado, and the guns and the gun
"19. The wife shall be responsible for her indebtedness
with the Visa and American Express and the husband shall be
responsible for any indebtedness in his name, if any.
"21. With respect to the cash accounts, the husband
shall immediately write a check to the wife from his personal
checking account in the amount of $45, 000. The husband shall
write a check to the wife from his personal money market
account in the amount of $100, 000. The husband shall make
arrangements for the wife to be awarded $200, 000 from the PC
money market account. The husband shall be awarded all other
money in the PC.
"22. With respect to the retirement accounts, the wife
shall be awarded the remaining money in her retirement
account and shall be awarded $39, 000 from the husband's
retirement account. The wife shall be responsible for
preparing the proper qualified domestic relations order to
reflect the transfer of $39, 000 from the husband's
"23. With respect to the money in [the wife's
attorney's] trust account, same money shall be held
pending the hearing regarding the attorney's fee.
"24. The Court does set the attorney's fee hearing
over to November 2, 2016 at 9:00 a.m. to determine how much
attorney's fee the husband will be responsible for
paying, if any."
that the failure of a judgment to adjudicate a claim for
attorney's fees does not ordinarily render that judgment
nonfinal. Blythe v. Blythe, 976 So.2d 1018, 1020
(Ala. Civ. App. 2007). In this case, however, the trial court
ordered that money contained in the wife's attorney's
trust account, which consisted of proceeds from the
wife's 401(k) account and was subject to division between
the parties, be held pending a decision on the wife's
request for an award of attorney's fees. Thus, the
October 13, 2016, order was not a final judgment because it
did not "completely adjudicate all issues between the
parties." Faellaci v. Faellaci, 67 So.3d 923,
925 (Ala. Civ. App. 2011).
husband filed a motion seeking to alter, amend, or
vacate the October 13, 2016, order, in which he
asserted, in part:
"2. The Court's order as it relates to custody of
the minor child is incomplete and due to be amended. The
order reflects an agreement was reached by the parties, but
the order fails to state that the parties shall share joint
legal custody of the minor child. The language of the order
indicates an intent to award joint legal custody, but the
order fails to specifically state such an award, ...