THOMPSON, Presiding Judge.
W.R. ("the father") appeals from a judgment of the Mobile Circuit Court divorcing him from C.R. ("the mother"). For the reasons stated herein, we affirm.
The parties married in 1998. One child was born of the marriage. In June 2008, the parties adopted four children, three girls and a boy, who were siblings and all of whom were minors at the time of the trial. Pursuant to the Alabama Subsidized Adoption Act, § 26-10-20 et seq., Ala.Code 1975, as part of the adoption of those children, the parties began receiving a monthly adoption subsidy payment of $2,437.50 from the State.
After they were married, the parties lived in a house that the father owned by virtue of a judgment divorcing him from his previous wife. In 2000, the parties sold that house and purchased another house ("the Mobile property"). The parties made a significant down payment on the Mobile property from the proceeds of the sale of their previous house, and they obtained a mortgage loan to finance the remainder of the purchase price of that property. Subsequently, the mother was in an automobile accident, and the parties applied $25,000 of the settlement proceeds the mother received because of that accident to a reduction of the principal of the mortgage loan on the Mobile property. The parties made extra payments on the mortgage loan so that, by 2007, the mortgage loan was paid off.
In October 2007, the parties purchased and moved into another house ("the marital residence"), financing that purchase with an equity line of credit secured by the Mobile property. The parties planned to pay off the line of credit with the proceeds from the sale of the Mobile property. At the time of trial, the line of credit had a balance of approximately $160,000.
In December 2008, the parties separated. The mother and the children remained in the marital residence, and the father moved back to the Mobile property. On January 29, 2009, the mother filed an action for legal separation from the father. On the same date the mother filed the action, the trial court entered an order awarding pendente lite custody of the children
On February 4, 2009, the mother filed a motion to restrict the father's visitation with the children. She stated that the children's therapist had filed a report with the Department of Human Resources alleging that the father had abused the children, that the father had learned about that report and had questioned the children extensively, and that the children were frightened to be around the father.
On February 20, 2009, the mother filed a petition for protection from abuse on behalf of herself and the children in which she alleged that the father had injured her and had acted abusively toward some of the children. The father filed a motion to dismiss the petition or to transfer the action to the circuit judge who was presiding over the mother's divorce action on the basis that the mother's divorce action concerned the subject matter of her petition for protection from abuse. The court granted the father's motion and transferred the mother's petition to the domestic-relations division of the Mobile Circuit Court, where the mother's divorce action was pending.
On March 12, 2009, the father filed a motion for contempt against the mother in which he asserted that the mother had not allowed him to exercise visitation with the children in violation of the court's previous order permitting him to exercise weekly visitation with the children. In a separate motion requesting custody of the children, the father asserted that the mother was "mentally, emotionally, and physically cruel to the children." He supported this latter motion with his own recitation of examples of the mother's parenting, as well as with an affidavit of the mother's parents in which they stated, among other things, that the mother had been verbally and physically abusive toward the children. The father also filed an answer to the mother's complaint and a counterclaim for a divorce in which he sought, among other things, custody of the children.
On April 9, 2009, after a hearing, the trial court entered an order providing that the father would be allowed to exercise supervised visitation with the children. The father subsequently filed a motion for contempt against the mother in which he asserted that the mother had denied him visitation with the children in violation of the trial court's April 9, 2009, order. On September 4, 2009, after a hearing on the parties' pending motions, the trial court entered an order awarding the father visitation with the children on alternating weekends.
The trial court held a trial of the action on December 15, 2009. The mother testified that the parties had separated because the father, after the mother had warned him not to abuse the children again, had "given" one of their sons a black eye. She stated that the parties separated on the day of that incident. The mother testified that the father had been physically abusive
The mother opined that the marital residence was worth $140,000. She stated that it was not in good repair, indicating that one wall had had sheetrock torn out of it, that water would leak into the downstairs area causing mold, that beams were missing from the ceiling of the living room, and that many of the appliances in the house did not work or did not work properly. She estimated that the cost to repair the marital residence exceeded $20,000. The father testified that the marital residence was in "average" condition when the parties purchased it and that it required only a "couple thousand dollars" in repairs. He opined that the marital residence was worth $160,000. The father submitted an exhibit indicating that his parents had loaned $17,000 to the parties to remodel the marital residence. The mother, however, testified that she was not aware of any such loan from the father's parents.
The mother testified that the Mobile property was worth $200,000. The parties had offered that property for sale at slightly more than that amount. The father opined that the Mobile property was worth $160,000.
During part of the marriage, the mother had worked as a special-education teacher, earning approximately $28,000 annually. She had her teaching certificate at the time of trial, but she was no longer teaching. Instead, she was pursuing her master's degree in social work as a full-time student. She also worked part time for a family center earning $14.50 per hour and averaging 20 hours of work per week.
The father worked at an automotive-parts company selling automobile parts. The ownership of that company was disputed at trial. The father and the children's paternal grandfather testified that the paternal grandfather owned the company, and they denied that the father had an ownership interest in it. The mother, however, testified that the father had told her that he owned the business with his father, and a mortgage executed by the father and his parents in 2005 related to the company indicated that all three owned stock in the company. The father, along with his parents, owned the property on which the company was located, although the father testified that he did not realize that he had an ownership interest in that property until a few months before trial.
The father stated that he was paid $500 per week from his job at the automotive-parts company. The mother stated that the father was paid an additional amount in cash each week, but the father and the paternal grandfather denied that the father received any payments from the company beyond his weekly payroll check. In addition to a weekly salary, the company provided the father with a truck and medical insurance. The mother testified that, at some point during the marriage, the father had supplemented his income by obtaining automobiles that had been auctioned, repairing them, and reselling them for a profit. The father testified that he had not done this in the previous six or seven years.
The mother testified that the monthly adoption subsidy of $2,437.50 that she received was for the adopted children's special needs. The amount of the subsidy for each of the three adopted daughters was approximately $450, while the amount of the subsidy for the adopted son was $1,070. The mother stated that the adopted son has Asperger's syndrome, reactive attachment disorder, attention deficit/hyperactivity disorder, Tourette's syndrome, and post-traumatic stress disorder. She stated that two of the adopted
The mother submitted a document indicating that her monthly budget was approximately $3,600. It does not appear that she included her monthly food bill on that list, but it was undisputed that she received $600 worth of food stamps every month. The father submitted a document indicating that, during the pendency of the action, he had had monthly expenses of $2,442.27. That amount included, among other things, various expenses associated with the marital residence that the trial court ordered him to pay pending resolution of the action. The father stated that his expenses had exceeded his income by $400 to $500 each month and that he had been borrowing money from the paternal grandfather to cover the shortfall. The father testified that he could not afford to be solely responsible for the line of credit secured by the Mobile property.
The mother testified that she had two credit cards, one of which had a balance of $8,800 and the other of which had a balance of $1,100. She testified that the former credit card had a balance of $4,120.12 about the time the action was filed. The mother stated that she had borrowed $400 from a friend to support the children and her. The mother testified she had incurred $43,500 in student loans during the marriage, approximately half of which she had incurred before the action was filed. She stated that she had used a substantial amount of her student loans to support herself and the children.
The mother testified that she had begun a romantic relationship with a man whom she had met five months before the trial. The mother also admitted that, some time within the eight-month period before the trial, she had gone to New York for a few days to stay with a different male friend.
The father, when asked whether he had been faithful to the mother, responded, "Most of the time." He then stated that he had never committed adultery. However, he acknowledged that, when he was asked during discovery whether he had had sexual relations with anyone other than the mother since the parties had married, he refused to answer, citing his constitutional right not to incriminate himself.
Kimberly Carter, a social worker with the Mobile County Department of Human Resources, handled the process by which the parties had adopted four of their children. She stated that the adoption subsidy was for the benefit and support of the adopted children. She testified that the adopted son, more so than the three adopted daughters, had special needs. Carter did state that some of the subsidy was based on the fact that the four adoptees were siblings and would have been hard to place together.
During the trial, the parties reached an agreement that they would share joint legal custody of the children, with the mother having primary physical custody of the children and the father having visitation.
On February 22, 2010, the trial court entered a final judgment divorcing the parties. Pursuant to the parties' agreement at trial, the trial court awarded the parties joint legal custody of the children, awarded the mother primary physical custody of the children, and awarded the father visitation rights. The trial court ordered
Our review of a divorce judgment entered after an ore tenus proceeding is well settled.
Robinson v. Robinson, 795 So.2d 729, 732-33 (Ala.Civ.App.2001). In addition, "[i]t 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." Baggett v. Baggett, 855 So.2d 556, 559-60 (Ala.Civ. App.2003).
The father contends the trial court erred in its division of the parties' real property. Specifically, he argues that, in awarding the mother the marital residence on which the parties owed no debt, the trial court effectively awarded the mother $160,000 in equity. He argues that the trial court, in awarding him the Mobile property, effectively awarded him between $0 and $40,000 in equity because the Mobile property was encumbered by a $160,000 mortgage. This division of the parties' real property, he asserts, was erroneous because a portion of the equity in the real property had come from the sale of property he had owned before the marriage; the mother's future earning potential was greater than his; and the mother, after the parties had separated, had wrongfully denied visitation to him for a period and had caused the children to make false abuse allegations against him.
In Baggett v. Baggett, 855 So.2d at 559, this court wrote:
Our consideration of the factors set forth in Baggett, as well as our recognition of the broad discretion a trial court possesses in dividing marital assets, leads us to conclude that the trial court's division of the parties' property in the present case did not constitute error.
We note that the mother opined, and the court could have concluded, that the marital residence was worth $140,000, not $160,000 as the father contends, and that the marital residence required more than $20,000 in repairs. Furthermore, the father, in arguing that the property division was inequitable, fails to consider any marital property other than the two pieces of real property the parties owned. In addition to that real property, the trial court also divided a substantial amount of personal property between the parties. For example, the trial court awarded the father, among many other things, a pop-up camper, a bass boat, a second boat, two refrigerators, and a hot tub. The father's contention simply fails to take into consideration the entire award of marital property the trial court made to each party.
The trial court also ordered that each party be responsible for any student-loan and credit-card debt he or she had accrued. Thus, the mother is solely responsible for the repayment of more than $40,000 in student loans, half of which she had incurred before the present action was filed and much of which she stated she had used for her support and the support of the children, as well as the repayment of more than $8,000 in credit-card indebtedness, approximately half of which had accrued before the present action was filed.
As to the parties' earning abilities, the father focuses on the fact that the mother had almost completed the requirements to obtain a master's degree in social work, while he had not attained that level of education. He also points out that the mother earned more money than he did during the time she worked as a teacher. The trial court, in considering the parties' earning capacities, could have concluded that the father had an ownership interest in his father's company and, as a result, that his future earning potential was not limited to the salary he presently receives. It likewise could have concluded that he received additional income from his job in the form of weekly cash payments. Finally, the trial court could have concluded, based on the conflicting evidence presented at trial, that the father's alleged abuse of the children and the mother was the cause of the breakdown of the marriage; fault in the breakdown of the marriage is a factor the trial court may consider in fashioning a property division. Baggett, supra.
The father next contends that the trial court erred when it awarded the mother child support in an amount determined by application of the Rule 32 child-support guidelines without crediting against his child-support obligation the adoption subsidy the State provided for the parties' adopted children. He argues that because both parties entered into the agreement by which the State pays a subsidy for the adoption of the children, the parties should split the subsidy and that his half of the subsidy should be credited against his monthly child-support obligation with regard to the four adopted children. He asserts that, to the extent his half of the adoption subsidy exceeds the amount called for in the child-support guidelines, he should not be required to pay child support for the four adopted children. He argues that adoption subsidy payments are akin to, and should be treated in the same manner as, Social Security payments received by a child because of a parent's disability.
The purpose of the Alabama Subsidized Adoption Act, § 26-10-20 et seq., Ala. Code 1975 ("the Act"), "is to supplement the Alabama adoption statutes by making possible through public financial subsidy the most appropriate adoption of each child certified by the State Department of Human Resources as requiring a subsidy to assure adoption." § 26-10-21, Ala.Code 1975. The Act delegates to the Department of Human Resources the task of developing regulations for the implementation of the Act. According to those regulations, to be certified for eligibility for an adoption subsidy, among other things, the "State Department of Human Resources must determine that the child is a special needs child and is in special circumstances which make it unlikely for him to be adopted" because of one or more of several reasons, including, among others, physical or mental disability, emotional disturbance, or membership in a sibling group of three or more children when the intention is to have the children adopted as a group. Ala. Admin. Code (Dep't of Human Res.), r. 660-5-22-.06(2)(a)3. A family adopting a child who qualifies for an adoption subsidy must enter into an agreement with the Department of Human Resources setting out the terms and conditions of the subsidy prior to the issuance of the final decree of adoption. Ala. Admin. Code (Dep't of Human Res.), r. 660-5-22-.06(3)(a).
The issue of how adoption subsidies should be treated with regard to an award of child support is one of first impression in this jurisdiction. However, our caselaw provides some guidance as to the proper resolution of the issue. In Lightel v. Myers, 791 So.2d 955 (Ala.Civ.App.2000), the trial court entered a judgment requiring the father to pay postminority support for two of his adult children who were mentally retarded. The father appealed and argued, in part, that his obligation to provide for the children's reasonable living expenses should be offset by the children's receipt of Supplemental Security Income benefits. This court concluded that the father was entitled to no such offset.
The court noted that prior Alabama cases had determined that, when a child receives Social Security disability benefits because of a parent's disability, those benefits should constitute an offset to the disabled parent's child-support obligation because the benefits were intended to replace
Id. at 960.
Based on the reasoning of Lightel and the cases on which it relied, the question whether the adoption subsidy in the present case should offset the father's child-support obligation is resolved by determining whether the subsidy constitutes a substitute for an income source or whether it is intended as a supplement to income. Although the appellate courts of this state have not addressed that issue, courts in other jurisdictions have concluded that the purpose of an adoption subsidy is to serve as a supplement to income, not as a replacement for a parent's income, and that those payments therefore do not offset or otherwise serve as a credit against a parent's child-support obligation.
Hamblen v. Hamblen, 203 Ariz. 342, 54 P.3d 371 (Ct.App.2002), involved a divorce action in which the father asserted, on appeal, that half of the adoption subsidy the parties received because of their adoption of five children should have been credited against his child-support obligation. Rejecting the father's contention, the appellate court wrote:
Hamblen, 203 Ariz. at 345-46, 54 P.3d at 374-75 (footnote omitted; emphasis added).
In In re Marriage of Bolding-Roberts, 113 P.3d 1265 (Colo.App.2005), a noncustodial parent, on appeal from a judgment modifying his child-support obligation, argued that the obligation should have been reduced because of an adoption subsidy paid to the custodial parent. The appellate court disagreed, writing:
We agree with the reasoning contained in the foregoing cases, and we conclude that the adoption subsidy at issue in the present case does not constitute a replacement of or substitute for an income source. Instead, as the above cases hold, the adoption subsidy is supplemental to the adoptive parents' income, and, as such, the subsidy cannot serve as a credit against the father's child-support obligation. See Lightel, 791 So.2d at 960.
The father also argues that, even if the adoption subsidy cannot be credited against his child-support obligation, the trial court should have taken the adoption subsidy into account and deviated downward from the amount of child support called for in the Rule 32 child-support guidelines. He points out that Rule 32 permits a trial court to deviate from the child-support guidelines when the child for whom support is required receives separate, unearned income. See Rule 32(A)(1)(d), Ala. R. Jud. Admin. He also asserts that the trial court should have deviated downward from the amount of child support called for by the guidelines because that amount constitutes approximately half of his net salary and paying that amount would leave him with insufficient financial resources on which to live.
"A trial court has the discretion to deviate from the child support guidelines in situations where it finds the application of the guidelines would be manifestly unjust or inequitable." State ex rel. Golden v. Golden, 710 So.2d 924, 926 (Ala. Civ.App.1998). In the present case, we fail to find any abuse of discretion by the trial court in fixing the father's child-support obligation at the amount called for in the child-support guidelines.
There was evidence that the cost of services for the children based on their special
Finally, the father contends that the trial court erred when it awarded the mother's attorney a judgment against him for $1,000 for a portion of the mother's attorney's fees. The determination of whether to award an attorney's fee in a divorce action is committed to the sound discretion of the trial court. Kovakas v. Kovakas, 12 So.3d 693, 700 (Ala.Civ.App. 2008). "In determining whether to award an attorney fee in a divorce action, the trial court should consider, among other things, the conduct of the parties, the financial circumstances of the parties, and the outcome of the litigation." Id. Based on our review of the record, we conclude that the trial court did not exceed its discretion in ordering the father to pay $1,000 toward the mother's attorney's fee.
As to the conduct of the parties, the father correctly points out that much of the pretrial litigation between the parties revolved around the mother's refusal to allow the father to visit the children in violation of court orders. However, offsetting the mother's asserted misconduct is the evidence of physical abuse by the father against the mother and the children during the marriage that allegedly led to the breakdown of the marriage. We recognize that the assertions of physical abuse were disputed at trial to some extent; however, the evidence was sufficient to support a finding by the trial court that the parties' conduct relative to the marriage warranted an award of an attorney's fee to the mother.
The father argues that the parties' financial circumstances did not warrant the award of an attorney's fee given that the mother was awarded most of the equity in the parties' real property and that the mother's earning capacity exceeded his. Our review of the record indicates that there was evidence indicating that the financial circumstances of the parties were similar with regard to their ability to pay their monthly expenses, however, and, as previously discussed, we do not believe that the trial court was required to weigh heavily the mother's assertedly greater earning capacity than the father's given the evidence indicating that the father was a part owner in the company for which he worked and the fact that the mother, in pursuing a career in social work, would be the sole custodial parent of five children. We also note that the amount of the attorney-fee award, $1,000, is not exorbitant.
Considering the record as a whole and the level of discretion afforded the trial court with regard to the award of an attorney's fee in this case, we conclude that the
Based on the foregoing, we conclude that the father has failed to demonstrate a basis on which to hold the trial court in error. As a result, we affirm the trial court's judgment.
AFFIRMED.
PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.
