Adams v. Adams
Adams v. Adams
Opinion of the Court
Audrey M. Adams (“the wife”) brought an action in the Dale Circuit Court seeking the dissolution of her marriage to Terry Eugene Adams (“the husband”), as well as custody of the two children born of the marriage, an award of child support, and a division of marital property. An interlocu
After a brief ore tenus proceeding,
“At the outset we note that, in reviewing the judgment by the trial court, we are governed by the well-established ore tenus rule. Under this rule, when the trial court has been presented evidence in a divorce case ore tenus, its judgment will be presumed to be correct and will not be set aside by this court unless it is plainly and palpably wrong or unjust.”
Brannon v. Brannon, 477 So.2d 445, 446 (Ala.Civ.App. 1985).
The husband contends that the trial court erred in awarding primary physical custody of the parties’ children to the wife. The husband acknowledges the applicability of the “best-interests-of-the-child” standard of review in the setting of an initial award of custody and the trial court’s discretion, under Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981), to consider a wide variety of factors, including the gender, age, and characteristics of the children; the age, health, character, and responsiveness of the contestants; and each child’s preference (should that child be of sufficient age and maturity). However, he asserts that the wife committed acts of domestic violence against him so as to give rise to a presumption that an award of custody to the wife would not be in the best interests of the children under the Domestic and Family Violence Act (see Ala.Code 1975, § 30-3-131).
There was limited testimony adduced at trial regarding the parties’ competing custody claims. The wife testified that the parties’ children were 12 years old and 8 years old at the time of trial and that the children had lived with her during the pendency of the divorce action together with the children’s 17-year-old half broth
The husband testified that he was concerned by the changes in appearance of the parties’ 12-year-old child and by certain claimed escalations of objectionable behavior he had observed as to both children; the husband stated that the older child in particular had been consuming “vulgar” audio and video media, that he had talked in a disrespectful manner, and that he and the younger child had constantly fought and made threats against each other. However, on, cross-examination, the husband admitted that the children had behaved in a similar manner before the parties separated. The husband opined that counseling would be appropriate for the children (an opinion ultimately accepted by the trial court, which directed that the children undergo counseling in its judgment divorcing the parties). He further testified that he had been receiving disability payments since approximately 2000, two years into the marriage, because of anxiety-related panic attacks, but he admitted that he had “not had any major problem with panic attacks in years.” Another witness testified that the husband had been diagnosed by his mental-health professionals as suffering from “general anxiety disorder without manifestations” but added that the husband had not been prescribed any medication by those professionals for his condition.
The facts surrounding the husband’s domestic-violence assertion against the wife are somewhat unclear and are disputed. The husband testified that his principal concern about the wife’s having primary physical custody of the parties’ children was “[h]er temper”; he testified that the wife had been arrested for domestic violence against him on one occasion during which the wife had “grabbed” weapons and “got after me with them” before attempting to hurt herself and ingesting some unidentified medicine. The wife admitted that she had been convicted of domestic violence and had been placed on probation,
Although the evidence of record does not reveal the wife to be a perfect parent, we cannot conclude that the trial court erred in determining that placing the parties’ children in her primary physical custody would serve their best interests notwithstanding the husband’s contention
The husband contends that the trial court erred in directing him to pay a sum of monthly child support based in part upon evidence that he was receiving $639 per month in government benefits. According to an evidentiary exhibit offered by the husband at trial, which was prepared by the federal Social Security Administration (“SSA”), the husband has received “disability benefits” from SSA since 2000; however, the SSA statement reveals that the monthly benefits of $639 currently being paid to the husband are actually Supplemental Security Income (“SSI”) payments and that that “payment amount may change from month to month if [the husband’s] income or living situation changes.” The nature of the husband’s payments is significant because, although “Rule 32(B)(2), Ala. R. Jud. Admin., includes disability payments in ... a party’s ‘gross income’ for purposes of calculating child-support obligations pursuant to the guidelines,” Hawkins v. Cantrell, 963 So.2d 103,105 n. 1 (Ala.Civ.App. 2007), that rule includes SSI in a list of “means-tested public-assistance programs” whose payments are specifically excluded from “gross income.” Rule 32(B)(2), Ala. R. Jud. Admin.; see also Hawkins, 963 So.2d at 105 n. 1. Although, six years before the adoption of the Rule 32 child-support guidelines, this court had held in Ex parte Griggs, 435 So.2d 103 (Ala.Civ.App. 1983), that “SSI benefits may be subjected to a claim for past-due child support payments” in an enforcement action, 435 So.2d at 104, any precedential value Griggs might otherwise have had with respect to a trial court’s determination of a parent’s income for purposes of calculating prospective child support was abrogated by the adoption of the guidelines, and “[u]se of the child support guidelines is mandatory in all actions filed after October 9,1989.” Gautney v. Raymond, 709 So.2d 1279, 1281 (Ala.Civ.App. 1998).
The Form CS — 42 prepared by the trial court in determining the parties’ respective child-support obligations clearly shows that that court, in seeking to apply the Rule 32 guidelines, included the husband’s SSI benefits in determining his gross income and, thereby, in determining the amount the husband should pay to the wife as child support each month. In light of Rule 32(B)(2), we conclude that that court erred. The trial court’s judgment is reversed as to the husband’s child-support obligation, and the cause is remanded for
The husband also contends that the trial court erred in failing to award him periodic alimony instead of reserving the issue. Assuming, without deciding, that the husband timely injected the issue of his potential entitlement to alimony into the case for the first time at the post-judgment stage despite having failed to seek alimony in his pleadings,
The husband contends that the trial court erred in dividing the parties’ property. At trial, the husband submitted an evidentiary exhibit listing 11 itemized classes or articles of personal and real property he was seeking to have awarded to him; the husband was awarded all of that property except for (a) one motor vehicle to which, during his trial testimony, he had waived any claim;
Based upon the foregoing facts and authorities, the trial court’s judgment is reversed as it pertains to child support; in all other respects, that judgment is affirmed. The cause is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
. The trial transcript consists of only 52 pages of testimony.
. No record of any trial or judgment in any criminal matter involving the wife was placed in evidence.
. But cf. Hughes v. Hughes, 500 So.2d 1140, 1141 (Ala.Civ.App. 1986) (reversing award of periodic alimony to spouse who made no request therefor; because parties’ economic evidence was referable to another disputed issue, alimony issue could not be said to have been tried by consent).
. The record reflects that that vehicle, a Ford Mustang convertible automobile dating from the 1990s, had been purchased by the wife using refunded income-tax withholdings that, the trial court could properly have inferred, had come from her wages and not the husband's SSI benefits (which are not subject to federal income tax, see Dep't of the Treasury, Internal Revenue Serv., Publication 915, Social Security and Equivalent Railroad Retirement Benefits, p. 1 (2013); on the date this opinion was released, this document could be found at: http://www.irs.gov/pub/irs-pdf/p9I5. pdf).
. Although the husband has asserted, without citation to any evidence presented at trial, that he does not yet have possession of the 2001 Escort automobile because it has been seized by creditors of the wife, we would note that the trial court has the inherent authority, in appropriate postjudgment proceedings, to enforce, against the wife, its award of the 2001 Escort automobile to the husband. See generally Grayson v. Grayson, 628 So.2d 918, 919-20 (Ala.Civ.App. 1993).
Concurring Opinion
concurring in the result.
I concur in the result of the main opinion. I write specially to address the issue of child support in this case. I agree that the caselaw and Rule 32, Ala. R. Jud. Admin., provide that Supplemental Security Income (“SSI”) benefits are not to be used in determining a parent’s gross income for the purpose of calculating child support. It is clear that the trial court improperly used the amount of SSI benefits received by Terry Eugene Adams (“the father”) in calculating child support and, therefore, that that award must be reversed.
Given the specific facts of this case, I believe the trial court may on remand, within its discretion, consider imputing income to thé father. See Pardue v. Pardue, 917 So.2d 857 (Ala.Civ.App. 2005); and Hudson v. Hudson, [Ms. 2120884, Feb. 28, 2014] — So.3d — (Ala.Civ.App. 2014). The evidence in the record indicates that the father was diagnosed with an anxiety disorder for which no medications were prescribed and from which the father stated he has not experienced symptoms in years. Thus, the evidence in the record could support a determination by the trial court that the father is capable of making some contribution to the support of his
. On the date this opinion was released, a copy of § 2102 of the Social Security Handbook (as last revised on Feb. 24, 2009) could be found at: http://www.socialsecurity.gov/ OPHome/handbook/handbook.21/handbook-2102.html.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.