THOMAS, Judge.
Anthony McCaskill ("the husband") appeals from a judgment of the Mobile Circuit Court divorcing him from Sylvia
The parties were married in May 1990. After nearly 17 years of marriage, the husband filed a complaint for a divorce in the trial court on March 17, 2007, claiming incompatibility of temperament. The wife answered the complaint and cross-claimed for a divorce on May 23, 2007. At the time the complaint was filed, the parties had two minor children — a son who was approximately 16 years old and a daughter who was approximately 15 years old (collectively referred to as "the children").
On April 12, 2007, the trial court issued a pretrial order, requiring, in pertinent part, that the parties "maintain the status quo as to payment of the house note, utilities, food, necessities, fixed credit obligations, etc." The pretrial order further precluded either party from disposing of assets or withdrawing funds from savings accounts.
The wife filed an instanter motion for pendente lite support and for exclusive use and possession of the marital residence on January 11, 2008. Among other requests, the wife petitioned the trial court to order the husband to pay temporary child support. The trial court denied the wife's motion on January 16, 2008.
After granting numerous continuances, the trial court conducted a hearing on October 26, 2010, and January 6, 2011, at which the court heard ore tenus testimony regarding the complaint and cross-claim for a divorce. The trial court heard testimony from both parties and from a financial expert regarding the wife's retirement accounts.
The record indicates that the husband worked for CenturyTel of Alabama, LLC, in Mobile, that he had earned $64,299.73 in 2009, and that he had earned approximately $48,000 year-to-date in 2010 at the time of the October 2010 trial. The husband testified that he did not pay the wife any child support during the nearly three and a half years this action was pending, although he did maintain health insurance for the children. The husband also testified that he stopped paying the utility bills sometime during 2009, in defiance of the pretrial order. That resulted in the water at the marital residence being turned off in March 2009. The trial court issued an order on March 5, 2009, admonishing the husband to "take whatever action necessary to have the water turned on today...."
The husband further testified that he has three retirement accounts: military retirement, a pension with CenturyTel, and a 401(k) account with CenturyTel. He testified his 401(k) account was worth approximately $30,000 at the time of trial. There was no testimony introduced regarding the value of his military retirement or the CenturyTel pension.
Additionally, the husband testified that he believed the marital residence was worth $300,000 and that he was requesting that the trial court order the parties to sell the marital residence and divide the equity. He further testified that he owed approximately $9,600 in credit-card debt that was in his name only, some of which was accumulated during the marriage.
The wife further testified that she had three retirement accounts from her previous employment with IBM Corporation.
The trial court entered a judgment on January 11, 2011, divorcing the parties and dividing the marital assets. The marital assets and debts were divided as follows: (1) the husband was awarded the 2001 and 2004 Toyota Tacoma vehicles, (2) the wife was awarded the 1991 Mazda vehicle, the 1998 Honda CRV vehicle, and the 2001 Toyota Corolla vehicle, (3) the wife was awarded any interest the parties may have in School Zone, Inc., (4) the wife was ordered to be responsible for credit-card debts to VISA, Bank of America, CitiBank, and Big Ten Tires, and, (5) each party was awarded all financial accounts in his or her individual name. The judgment also divided other items of personal property.
In addition, the trial court ordered the parties to sell the marital residence and to divide the net equity equally. Pending the sale of the marital residence, each party was ordered to pay half of the monthly mortgage payment. The husband was awarded possession of the marital residence pending its sale and was ordered to be responsible for payment of taxes, insurance, and maintenance for the residence. The wife was awarded custody of the daughter, and the husband was ordered to pay child support in the amount of $372 per month.
The husband filed a motion to alter, amend, or vacate the judgment on January 28, 2011. The wife filed a motion to alter, amend, or vacate the judgment on February 10, 2011. The trial court held a hearing on March 17, 2011, after which both postjudgment motions were denied. The husband filed a timely appeal to this court on March 30, 2011. The wife filed her notice of appeal on April 21, 2011.
On appeal, the husband argues (1) that the trial court erred in its division of assets and liabilities and (2) that the trial court erred in failing to award him an attorney fee. The wife raises four issues on appeal:
We first address the issues dealing with the division of marital assets and liabilities.
Martin v. Martin, 85 So.3d 414, 421 (Ala. Civ.App.2011).
Although the husband argues that "the trial court erred in its division of assets and liabilities," his brief focuses entirely on the trial court's failure to award him any of the wife's retirement funds. Under § 30-2-51(b), Ala.Code 1975,
(Emphasis added.) The husband seems to argue in his brief that, because the parties meet the requirements set out in § 30-2-51(b), he is entitled to a portion of the funds in the wife's retirement accounts.
Taking her issues out of order, the wife argues that the trial court erred when it ordered her to be responsible for the husband's debt, specifically the credit-card debt. At trial, the husband testified that he had four credit cards in his name with a combined balance of approximately $9,600. However, the final judgment made the wife solely responsible for this debt, along with the debt connected with two additional credit cards held in both parties' names that the wife had used to pay expenses while this action was pending. This ultimately made the wife responsible for a total of approximately $21,489 of creditcard debt.
The wife argues in her brief that the four credit cards in the husband's name are part of his separate estate and should not be included in the division of marital property.
Meek v. Meek, 83 So.3d 541, 555 (Ala.Civ. App.2011) (quoting Nichols v. Nichols, 824 So.2d 797, 802 (Ala.Civ.App.2001)). It is undisputed that the husband exercised exclusive control over the four credit cards, and it is clear from the record that the husband incurred credit-card debt during the period of separation that was not for the benefit of the marriage. However, it is not clear what portion of the current balance on each card was accrued before and after the separation of the parties. At trial, the husband indicated that some of the debt was incurred during the marriage. The wife offered no evidence regarding the portion of credit-card debt incurred after the separation. Without evidence of the debt that was incurred during the separation, we cannot conclude that the credit-card debt was part of the husband's separate estate. See Brown v. Brown, 72 So.3d 28, 36-37 (Ala.Civ.App. 2011).
Further, the final judgment of the trial court awarded each party any financial accounts, including 401(k) accounts and pensions, in his or her individual name. Although no evidence was presented at trial regarding the value of the husband's retirement accounts, the wife does not dispute the husband's assertion that her retirement accounts are more substantial than the husband's accounts. "A trial court is free to consider the retirement benefits ... as assets of the parties to divorce in fashioning its awards." Byrd v. Byrd, 644 So.2d 31, 32 (Ala.Civ.App.
A review of the remainder of the final judgment shows that the husband was awarded two vehicles; the wife was awarded three vehicles.
The record is devoid of evidence regarding the valuation of most of the assets distributed by the trial court's judgment, including the husband's retirement accounts and the value of the vehicles.
Kreitzberg v. Kreitzberg, 80 So.3d 925, 931 (Ala.Civ.App.2011). To reiterate, "`[t]he award is not required to be equal, but must be equitable in light of the evidence, and what is equitable rests within the sound discretion of the trial court.'" Martin, 85 So.3d at 414. We conclude that the evidence was sufficient to support the trial court's division of the marital assets and that that aspect of the judgment is due to be affirmed.
The wife next argues that the trial court erred by failing to order the husband to pay retroactive child support and to reimburse her for household expenses incurred during the pendency of this action. When this action was initially filed, the parties' children were approximately 15 and 16 years old, respectively. The son reached the age of majority while this action was pending; the daughter attained
The wife cites Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998), in support of her claim for retroactive child support. Similar to the case at bar, the wife in Brown failed to request temporary child support in her cross-claim for a divorce. She later filed a claim for temporary support that remained pending throughout the remaining two-year period of the divorce action. The husband in Brown argued that the trial court had erred in awarding a child-support arrearage when there had been no pendente lite child-support order in place. 719 So.2d at 231. The Brown court held that,
719 So.2d at 232.
The wife filed a motion on January 11, 2008, petitioning the trial court for pendente lite child support. The trial court denied her request. However, following the reasoning of this court in Brown, "[a] basic principle of Alabama law is that a parent has a duty to support a minor child. `Parental support is a fundamental right of all minor children.'" 719 So.2d at 231 (quoting State ex rel. Shellhouse v. Bentley, 666 So.2d 517, 518 (Ala. Civ.App.1995)). This court further stated in Pate v. Guy, 942 So.2d 380, 385 (Ala.Civ. App.2005), that the "right of parental support exists regardless of the lack of court instructions." In addition, the Alabama Legislature created a cause of action for retroactive child support against a nonsupporting parent in 1994. See Ala.Code 1975, § 30-3-110 through § 30-3-115.
At trial, the husband testified that he did not provide support for the children during the time this action was pending. "This court will not allow the trial court's oversight in this regard to accrue to the benefit of the noncustodial parent. To do so would reward the noncustodial parent for failure or refusal to support his or her child...." Brown, 719 So.2d at 232. Therefore, we reverse the judgment insofar as it failed to include an award of retroactive child support and we remand the cause for the entry of a revised judgment that includes an appropriate amount of retroactive child support.
Pate is further instructive regarding the issue of retroactive reimbursement of marital expenses. Similar to the present case, the trial court in Pate issued a pendente lite order instructing the parties to pay their "pro rata" share of the marital expenses. 942 So.2d at 385. The father in that case admitted that he had not contributed to any of the monthly household expenses, other than homeowner's insurance, during the pendency of the divorce proceeding. Id. This court held that "[t]he children ha[d] a legally enforceable right to be supported by both parents during the pendency of their parent's divorce action." Id. at 385-86.
The trial court in the present case issued a pretrial order that instructed the parties, among other things, to "[m]aintain status quo as to payment of the house note or rent, utilities, food, necessities, fixed credit obligations, etc." It is clear from the record that the husband was responsible for paying the utility bills for the marital residence. It is also undisputed that the husband unilaterally stopped paying the utility bills sometime in 2009, resulting in the temporary loss of water and electricity
The wife also argues that the trial court erroneously imputed to the wife an income of $25 an hour in its child-support calculations. After a thorough review of the record, including the child-support-calculation forms, we are unable to ascertain the origin of the income attributed to each party by the trial court. "`[T]his court cannot affirm a child-support order if it has to guess at what facts the trial court found in order to enter the support order it entered....'" Willis v. Willis, 45 So.3d 347, 349 (Ala.Civ.App. 2010) (quoting Mosley v. Mosley, 747 So.2d 894, 898 (Ala.Civ.App.1999)). We therefore reverse the judgment insofar as it establishes the child-support award and remand the cause to the trial court to determine the husband's child-support obligation in compliance with Rule 32(E), Ala. R. Jud. Admin.
Finally, the husband contends that the trial court erred in failing to award him an attorney fee. It is well settled that the award of an attorney fee is within the discretion of the trial judge and will not be reversed except for an abuse of discretion. Enzor v. Enzor, [Ms. 2100105, December 30, 2011] 98 So.3d 15, 23 (Ala.Civ.App. 2011). In this case, we find no evidence that the denial of an attorney-fee award was an abuse of the trial court's discretion.
Accordingly, we reverse the trial court's judgment insofar as it failed to award retroactive child support, insofar as it failed to enforce the pretrial order regarding payment of utilities, and insofar as it calculated child support, and we remand the cause with instructions to the trial court to enter a judgment consistent with this opinion. We affirm the judgment with regard to the division of marital assets and debts.
APPEAL — AFFIRMED
CROSS-APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.
MOORE, J., concurs in the result, without writing.