Appeal
from Jefferson Circuit Court (DR-16-901169)
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[Copyrighted Material Omitted]
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Charles H. Dunn and Joseph P. Callaway of Boyd, Fernambucq
& Dunn, P.C., Birmingham, for appellant.
William N. Clark of Redden, Mills, Clark & Shaw, LLP,
Birmingham, for appellee.
EDWARDS,
Judge.
Charles
Stroud Bittick ("the father") and Emily Major
Bittick ("the mother") were married in 2004. They
have two children. After the parties separated in April 2016,
the mother filed a complaint for a divorce in the Jefferson
Circuit Court ("the trial court") in July 2016. In
July 2017, the parties entered into a pendente lite
agreement, which the trial court incorporated into an order,
that prohibited the parties from having "overnight
guests of the opposite sex past 9:00 pm when the children are
present" and that reserved the issue of pendente lite
child support so that the father could access financial
records to better determine his income. The pendente lite
order also required the father to pay the premiums for
health-insurance coverage for the mother and the children and
to pay the monthly mortgage payment on the marital residence.
During the pendency of the divorce litigation, the father
filed motions seeking to have the mother held in contempt for
alleged violations of the provision of the pendente lite
agreement respecting guests of the opposite sex.
After a
trial held over four days in January, March, and May 2018,
the trial court entered a divorce judgment in July 2018,
which, among other things, divided the parties' property,
awarded the wife rehabilitative alimony, awarded the
parties' joint custody of the children, and ordered the
father to pay $2,500 per month in child support. The divorce
judgment further required the father to be responsible for
payment of the children's health-insurance premiums, to
be responsible for one-half of the noncovered medical
expenses incurred on behalf of the children, and to pay
one-half of "all extra-curricular activity expenses for
the ... children including but not limited to summer camps[,]
cultural activities[,] such as dance or music and athletic
activities, school field trips, school fees, and any other
reasonable expenses." The trial court also ordered the
father to pay the mother $30,000 representing pendente lite
child support from the date of the filing of the divorce
complaint. Both parties filed postjudgment motions directed
to the divorce judgment, and, after a hearing, the trial
court amended the divorce judgment in certain respects not
relevant to the issues in this appeal. The trial court denied
all other requests for an amendment to or alteration of the
divorce judgment, and the father timely appealed.
On
appeal, the father raises several issues. He first argues
that the trial court's award of child support should be
reversed, in part, because he urges this court to overrule
Dyas v. Dyas, 683 So.2d 971 (Ala.Civ.App. 1995),
insofar as it requires a trial court considering child
support, when the parties' combined monthly income
exceeds the uppermost limit of the child-support-guidelines
schedule, see Rule 32, Ala. R. Jud. Admin., to
consider the ability
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of the obligor parent to pay as opposed to
considering the ability of both parents to pay. He also urges
reversal of the monthly child-support award on its merits,
arguing that the $2,500 award is so excessive and onerous as
to be punitive and that the amount is not rationally related
to the reasonable and necessary needs of the children. The
father next argues that the trial court's judgment should
be reversed insofar as it requires him to pay 50% of the
costs of the extracurricular activities of the children and
"other reasonable expenses" based on the trial
court's failure to make specific written findings
regarding extraordinary expenses for the children as, he
contends, is required by Rule 32(C)(4), Ala. R. Jud. Admin.
The father next challenges the trial court's lump-sum
award of $30,000 in pendente lite child support retroactive
to the filing of the divorce complaint, arguing that the
trial court should not have ordered support retroactive to
the filing of the divorce complaint because he had made other
payments to support the family during the pendency of the
divorce litigation and because, he says, the mother did not
present evidence to support the $30,000 award. Finally, the
father complains that the trial court erred by failing to
find the mother in contempt of the pendente lite agreement
regarding guests of the opposite sex.
The
facts pertinent to our resolution of this appeal are as
follows. The father owns or has an interest in three separate
business entities, two of which involve the purchasing and
renting or sale of real estate and the third of which, CSB
Consulting, Inc., involves point-of-sale systems. The
father's income, according to his
Child-Support-Obligation Income Statement/Affidavit
("CS-41 form") included in the record, is $19,118
per month. According to the father, his income is derived
solely from CSB Consulting, Inc.; he testified that the other
two entities do not generate income. The father said that he
pays $632 per month for health-insurance coverage for the
children. The mother is self-employed as a wedding planner
and also has a part-time position as a event coordinator for
a local business. Her income, according to her CS-41 form,
includes a yearly financial gift from her mother and is
$4,950 per month. Thus, the parties' combined income
exceeds the uppermost limit of the child-support-guidelines
schedule. See, e.g., Bradley v.
Murphy, 221 So.3d 459, 464 (Ala.Civ.App. 2016)
(recognizing that the uppermost limit of adjusted monthly
combined income on the Rule 32, Ala. R. Jud. Admin.,
child-support-guidelines schedule is $20,000).
The
mother testified and presented documentary evidence
concerning her expenditures for herself and for the children
during the parties' separation. The mother presented an
exhibit outlining her expenditures on behalf of the children
each month, which, the exhibit reflected, totaled $2,576. The
mother testified that one of the children had a tutor and
that the children participated in certain cultural or
extracurricular activities, like dance and art classes; the
costs of the tutor and the children's activities are
included in the mother's exhibit outlining her monthly
expenditures for or related to the children. The father
testified that he was willing to pay for the children to take
art classes, and he specifically stated that he desired that
one of the children resume soccer as an activity. The father
did not voice disapproval of any of the activities in which
the children were engaged.
According
to the mother, the father had paid her $2,000 per month
between their separation and November 2016 to assist her in
paying household bills; however, she said, he had stopped
paying her any money in November 2016. The mother testified
that she had had to seek employment after
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November 2016 in order to pay the family's bills; she
said that she had become employed in February 2017. The
father testified that, during the protracted divorce
litigation, he had paid the mortgage payment, the
children's health-insurance premium of $632, and the
mother's health-insurance premium each month; he also
testified that he had paid the property taxes on the marital
residence and $6,500 for a new HVAC unit for the marital
residence. According to the father, his expenditures related
to the marital residence, the mother, and the children
totaled approximately $3,000 per month during the pendency of
the litigation.
The
evidence suggested that the mother's boyfriend, J.W., had
spent significant time with the mother both in and outside
the presence of the children beginning some time after August
2016, when the mother and J.W., who had attended the same
high school as the mother, became reacquainted. The mother
admitted that, after the imposition of the 9:00 p.m.
restriction, J.W. had stayed at the marital residence after
9:00 p.m. on one occasion when the children were present at a
holiday party she hosted at the marital residence; the mother
said that other persons were in attendance as well. J.W.
testified that he might have left the marital residence after
9:00 p.m. on a few evenings when the parties had lost track
of time while watching a movie; however, he testified that he
had never left the marital residence later than 9:20 p.m.
when the children were present. The mother admitted that she,
the children, and J.W. had spent the night in the same
residence, but not the same room, on a few occasions when
they had been invited to stay as guests at the residences of
others (i.e., at a friend's beach condominium and at a
friend's lake house). She testified that she had not
understood the prohibition to apply when she was not at the
marital residence.
The
father first argues that this court should overrule Dyas
v. Dyas, 683 So.2d 971 (Ala.Civ.App. 1995). In
Dyas, this court discussed the application of Rule
32(C)(1), Ala. R. Jud. Admin., which states that "[t]he
court may use its discretion in determining child support in
circumstances where combined adjusted gross income is below
the lowermost levels or exceeds the uppermost levels of the
schedule." We explained that
"[w]hen the combined adjusted gross income exceeds the
uppermost limit of the child support schedule, the amount
of child support awarded must rationally relate to the
reasonable and necessary needs of the child, taking into
account the lifestyle to which the child was accustomed and
the standard of living the child enjoyed before the
divorce, and must ...