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J.S. v. S.S.

Alabama Court of Civil Appeals

June 29, 2018

J.S.
v.
S.S.

          Appeal from Coffee Circuit Court (DR-15-900113)

          THOMPSON, Presiding Judge.

         On May 22, 2015, J.S. ("the husband") filed a complaint in the Coffee Circuit Court ("the trial court") seeking a divorce from S.S. ("the wife"). In his complaint, the husband also sought custody of the parties' four minor children, an award of child support, and an equitable distribution of the parties' marital property. The wife answered and filed a counterclaim in which she sought an award of custody of the parties' children, an award of child support, an equitable property division, and an award of periodic alimony.

         The trial court conducted an ore tenus hearing. On July 12, 2017, the trial court entered a divorce judgment that incorporated certain stipulations of the parties and resolved the remaining issues in dispute. In its divorce judgment, the trial court awarded the parties joint legal and physical custody of the children, ordered the husband to pay child support, fashioned a property division, and awarded the wife $1, 500 per month in periodic alimony. The husband timely appealed on July 14, 2017.

         On November 27, 2017, while this appeal was pending in this court, the wife died.[1] If a party dies during the pendency of an appeal, the appeal does not abate. Rule 43(a), Ala. R. App. P.; Cox v. Dodd, 242 Ala. 37, 4 So.2d 736 (1941); Woodruff v. Gazebo E. Apartments, 181 So.3d 1076, 1080 (Ala. Civ. App. 2015); and Kaufman v. Kaufman, 22 So.3d 458, 460 (Ala. Civ. App. 2007). Accordingly, we address the issues raised by the husband.

         The husband first argues that the trial court erred in its award of periodic alimony to the wife. In making that argument, the husband fails to recognize that, under its express terms, the periodic-alimony obligation created in the divorce judgment terminated upon the wife's death. We note that "[a]n award of periodic alimony need not expressly specify, however, that the obligation ceases upon the death or remarriage of the recipient spouse because 'the term "periodic alimony," by definition, means a payment to a spouse that will cease upon death, remarriage, or cohabitation.'" Peace v. Peace, 137 So.3d 905, 911 (Ala. Civ. App. 2012) (quoting Wheeler v. Wheeler, 831 So.2d 629, 635 (Ala. Civ. App. 2002)). Thus, because the husband's periodic-alimony obligation was extinguished at the time of the wife's death, the arguments the husband raises in his brief to this court on the issue of periodic alimony with regard to any time after the wife's death are moot.

         With regard to the periodic-alimony obligation created by the divorce judgment, which the husband had a duty to pay until the date of the wife's death, the husband contends that the trial court erred when it "mischaracterized" the purpose of such an award by stating that the award was for the wife's "contribution to the marital estate." The husband points out that the trial court may consider a number of factors, including the length of the marriage, the parties' respective prospects, and their standard of living, in fashioning an award of periodic alimony. The husband appears to contend that the trial court's failure to mention the specific factors listed above while, instead, mentioning the wife's contribution to the marriage rendered the award of periodic alimony erroneous. We cannot agree.

          An award of periodic alimony is reviewed together with an overall division of property.

"'When dividing marital property and determining a party's need for alimony, a trial court should consider several factors, including "'the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.'" Ex parte Elliott, 782 So.2d 308 (Ala. 2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala. Civ. App. 1985)) (footnote omitted). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility, or where, as here, the trial court failed to specify the grounds upon which it based its divorce judgment. Ex parte Drummond, 785 So.2d 358 (Ala. 2000); Myrick v. Myrick, 714 So.2d 311 (Ala. Civ. App. 1998). It is well-settled that where a trial court does not make specific factual findings, the appellate court must assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Ex parte Fann, 810 So.2d 631 (Ala. 2001); Ex parte Bryowsky, 676 So.2d 1322 (Ala. 1996).'
"Baggett v. Baggett, 855 So.2d 556, 559-60 (Ala. Civ. App. 2003). In addition to the factors listed in Baggett v. Baggett, the trial court may also consider the spouses' relative economic and noneconomic contributions to the marriage in dividing the marital property and awarding periodic alimony. Weeks v. Weeks, 27 So.3d 526, 532-33 (Ala. Civ. App. 2008)."

E.A.B. v. D.G.W., 127 So.3d 422, 431 (Ala. Civ. App. 2012) (emphasis added).

         The trial court was free to consider, as a part of its decision to award periodic alimony, the wife's contributions to the parties' marriage. E.A.B. v. D.G.W., supra; see also Huckabee v. Huckabee, 544 So.2d 170, 171 (Ala. Civ. App. 1989) ("The division of property and the award of alimony, after consideration of the equities and contributions of the parties, are matters which fall within the broad discretion of the trial court."), and Walton v. Walton, 409 So.2d 858, 861 (Ala. Civ. App. 1982) (same).

         The provision awarding the wife periodic alimony states, in pertinent part:

"The Court finds in favor of the wife for her contribution to the marital estate and awards unto the wife periodic alimony. The husband shall pay to the wife, as periodic alimony, the sum of One Thousand Five Hundred and No/100 ($1, 500) Dollars per month. Said payments shall begin on the 1st day of August 2017, and shall continue due and payable on the 1st day of each calendar month thereafter in consecutive months, except that same shall terminate in the event of the [husband's] death, the [wife's] death, the [wife's] remarriage or cohabitation with a member of the same or opposite sex, or other order of the Court."

         We note that it is clear from the trial court's judgment that it did not mistakenly award the wife periodic alimony instead of alimony in gross, because, in another section of its judgment, the trial court awarded the wife alimony in gross using language similar to that in its periodic-alimony award.[2]The husband focuses most of his argument on this issue on a contention that the wife requested an award of periodic alimony as an additional means of support for the parties' children. Even assuming that the husband's characterization of the wife's request for periodic alimony is accurate, the nature a party's request would not make an award by the trial court erroneous. "It is well established that this Court will not presume error and will affirm a judgment appealed from if it is supported on any valid legal ground." Odom v. Blackburn, 559 So.2d 1080, 1082 (Ala. 1990). The trial court determined that an award of periodic alimony, together with the property division, was appropriate under the facts of this case, and ...


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