PER CURIAM.
Kelli Faith Grocholski ("the wife") appeals the Fayette Circuit Court's judgment divorcing her from William Allen Grocholski ("the husband") and dividing the parties' marital estate. We affirm in part and reverse in part.
The parties were married on August 17, 1988. The parties have two children. The older child was born of the wife's previous marriage, and the husband adopted him; the younger child was born of the parties' marriage. Both of the children were adults at the time of the trial. Therefore, the only issue tried before the trial court was the division of marital assets and debts.
The parties separated in January 2007, and the husband filed a complaint for a divorce on July 30, 2008. The trial court conducted a bench trial over the course of two days in March 2010, at which ore tenus and documentary evidence were presented. That evidence tended to show the following pertinent facts.
The husband, who was 63 years old at the time of the trial, owned and operated his own law practice in Fayette; the husband had worked as an attorney throughout the course of the parties' marriage. The husband testified that his income for 2008 had been $65,949 and that his income for 2009 had been $39,043. The wife disputed
The husband's "Social Security Statement," dated June 19, 2009, was submitted into evidence. That document indicated that the husband's average "taxed Medicare earnings" from 1997 to 2007 was approximately $33,000. However, both parties agreed that the husband had more income than was reflected in that document. Furthermore, both parties testified that the husband was paid in cash for some of the legal work he performed. The husband testified that he "didn't do as good a job as [he] probably should have, but [that he] did a better job than [he had] done in the past," of keeping up with the amount of cash that was coming into his law firm. The husband also admitted that there probably had been some inaccuracies in his past tax returns.
Other than occasionally working for the husband's law practice, the wife, who was 44 years old at the time of the trial, had not worked outside of the home during the course of the parties' marriage. The wife testified that the husband had not wanted her to work outside of the home and that she had honored that request. During the course of the parties' marriage, the wife had obtained a college education and a master's degree from the University of Alabama. The wife's deposition testimony, some of which was read at trial, indicated that because of a herniated disk her standing and lifting abilities are impaired but that she believed she could be employed so long as the employment did not require her to stand for long periods or to lift too much. However, at trial, the wife testified that she had been "sedated" during her deposition. The wife testified that she had not searched for employment during the parties' separation because she had spent significant amounts of her time receiving "pain shots" and "trigger points" and attending physical therapy. The wife testified that she had "a lot of lower back pain," "some upper back pain," "a lot of leg cramps," "a lot of bladder issues," migraine headaches, and "just a lot of pelvic issues, chronic pelvic issues that cause[] a lot of great pain." The wife testified that she was receiving treatment for each of the above-listed ailments. The husband testified that he thought that the wife could work; however, he testified that she could not stand for long periods.
It is undisputed that the parties owned a substantial amount of real and personal property, including multiple parcels of land, retirement and brokerage accounts, and certificates of deposit worth approximately $350,000. At the time of the trial, the parties owned a 2002 Toyota Sequoia sport-utility vehicle, a 1997 Mercedes Benz E320 automobile, a 2000 Ford F-150 pickup truck, a 1978 Chevrolet Corvette automobile, a 2000 Chevrolet 1500 pickup truck, a 1997 Ford F-150 pickup truck, and a 1978 GMC pickup truck. The parties also owned a Sea-Doo personal watercraft, a John Deere 950 tractor, a 1998 E-GO golf cart, a 16-foot 1978 VIP powerboat along with a boat trailer, and a "pull-behind" trailer. In addition, the wife owned jewelry, five pieces of which had a combined "estimated replacement value" of $88,500. The parties apparently acquired all the above-mentioned property, whether real or personal, either through inheritance or by paying cash. The parties had no debt associated with any of the property.
The parties were members of the Fayette County Country Club, where they owned a "golf shed." The husband testified that the parties would take one vacation
Although the parties had no debt at the time they separated, both of them incurred debt during the pendency of the divorce proceeding. The husband testified that, since filing for divorce from the wife, he had incurred $64,785.89 in "bank debt" at Citizens Bank of Fayette. Further, Fowler Oil Company billed the husband $2,799.74 for gasoline charges. The husband testified that he had opened an account with Fowler Oil Company so that the wife and one of his sons could purchase gasoline during the parties' separation. The parties had also incurred $4,684.63 in charges at a pharmacy.
From the time that the husband filed for a divorce to the time of trial, the wife had borrowed $86,000. She testified that she had used the borrowed funds to pay for living expenses and attorney's fees. The wife also testified that she had charged to a credit card approximately $1,000 for medical co-pays since the husband had filed for a divorce.
The husband testified that from the time the parties separated until he filed for a divorce, the wife had used a credit card for her monthly expenses. The husband testified that the monthly charges for the wife's credit card were approximately $1,000, which he paid. The husband also testified that he had given the wife approximately $200 in cash per week. The wife introduced a budget at trial indicating that her monthly expenses were $7,379.91; the wife testified extensively as to how she arrived at that amount. She stated that she was requesting an award of at least $5,000 per month as alimony.
The parties' younger child was enrolled in college, and the husband had been paying for his tuition and agreed to continue to do so. The husband also indicated that he would pay for the child's health insurance while he was enrolled in college.
The trial court entered a divorce judgment on May 3, 2010. Among other things, the trial court divided the marital assets in a manner slightly favoring the wife, and it ordered the husband to pay the wife $1,500 per month in periodic alimony. The trial court ordered the husband to pay the debt incurred in his name that was owed to Citizens Bank and the debt to Fowler Oil, and it ordered the wife to pay the 86,000 debt she had incurred since the parties' separation, as well as the debt owed to the pharmacy. The trial court also ordered the husband to pay for all the parties' youngest son's college expenses and to pay $10,000 toward the wife's attorney's fees. The wife appeals.
The standard by which this court reviews a judgment following an ore tenus proceeding is well settled.
Farmers Ins. Co. v. Price-Williams Assoc., Inc., 873 So.2d 252, 254-55 (Ala.Civ. App.2003) (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App. 2002)).
The wife first argues that the trial court erred in not allowing her to discover the husband's cellular-telephone records. "Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion." Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (citing Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991)).
In December 2008, the wife filed a notice of intent to serve a third-party subpoena on the husband's cellular-telephone carrier. The husband objected to the issuance of the third-party subpoena on the basis that some of the cellular-telephone records were subject to attorney-client privilege. On February 19, 2009, the trial court entered an order allowing the third-party subpoena to be issued to the husband's cellular-telephone carrier; however, the trial court ordered that the cellular-telephone records be delivered directly to the trial court so that the husband's counsel could review the records and identify any parts of the records that the husband contended were covered by attorney-client privilege. The husband's cellular-telephone records were not delivered to the trial court until the day before trial — more than one year after the trial court ordered that the subpoena could be issued. At the trial, the trial court declined to allow the wife to discover the cellular-telephone records because, the trial court stated, of the lack of time for the husband's counsel to review the records and because the telephone records were not relevant to any issues in the case.
Alabama recognizes a broad right of discovery. "Discovery should be permitted if there is any likelihood that the information sought will aid the party seeking discovery in the pursuit of his claim or defense. Discovery is not limited to matters that would be admissible as evidence in the trial of the lawsuit." Ex parte AMI West Alabama Gen. Hosp., 582 So.2d 484, 485 (Ala.1991). The wife argues that the telephone records were relevant to whether the husband had committed adultery and that adultery was an issue in the case. However, the only reference to adultery in the wife's filings or testimony was a single question in a set of interrogatories. The wife did not offer any testimony at trial relating to any alleged adultery of the husband or to any names or telephone numbers of alleged paramours. Thus, as the trial court determined, adultery by the husband does not appear to have been an issue in the case. Because the wife did not assert any claims of adultery by the husband, and because the wife did not provide any testimony relating to the issue of adultery by the husband, we cannot conclude that the trial court erred when it determined that the cellular-telephone records were not relevant to the issues in the case
The wife next argues that the trial court's award of periodic alimony was insufficient. The wife also argues that the trial court erred in its allocation of the parties' debt.
Clements v. Clements, 990 So.2d 383, 390 (Ala.Civ.App.2007). The trial court should consider several factors when determining a party's need for alimony and when dividing marital property, 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, 311 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)).
With respect to its award of periodic alimony, the trial court stated in its judgment:
The trial court's analysis of the parties' income appeared earlier in its judgment. In that part of the judgment, the trial court stated:
The wife argues that the trial court's finding of fact with regard to the husband's income was not supported by the evidence. As quoted above, the trial court, relying on trial exhibits including the husband's Social Security statement, found that the husband's average annual income for the 13 years preceding the divorce was approximately $34,000. It is apparent from our review that the trial court, in arriving at that figure, added the amounts listed in the husband's Social Security statement for the years 1997 to 2007 to the husband's adjusted gross income as reflected in his federal income-tax returns for 2008 and 2009 and divided that number by 13. The problem with that approach is that the husband himself testified that the amounts contained in his Social Security statement were not an accurate reflection of his true income during those years, as shown by the following exchange at trial:
Because the trial court relied on the husband's Social Security statement to determine his average annual income, the trial court's factual finding as to the husband's income is not supported by the evidence of record.
The wife also argues that, in determining the husband's true income, the trial court should have considered the evidence of the parties' lifestyle and the fact that they had no debt. In its judgment, the trial court expressly refused to rely on that evidence on the ground that any estimate of the parties' marital income based on their lifestyle would be "speculation and conjecture." We agree with the wife that, in so concluding, the trial court erred.
As interpreted by the trial court, the financial records indicate that the husband earned $34,000 annually. However, during the marriage, the parties enjoyed a "relatively affluent lifestyle," as was found by the trial court. Without going into the minutia of the parties' spending habits, which is only somewhat detailed above, it is apparent that they could not have lived as they did on that amount per year without accumulating massive debt; however, they had no indebtedness on any of their major assets at the time of the trial. As previously discussed, both parties agreed that the financial records did not accurately reflect the income of the husband's business, which the trial court found was principally operated on a cash basis.
Given the foregoing circumstances, the trial court would not have been engaging in speculation and conjecture in using the lifestyle evidence in the record to compute the actual income of the husband. Its contrary conclusion was error.
The wife also contends, and we agree, that when assessing the equitable amount of periodic alimony, the trial court erred in considering that the husband, who was 63 years old at the time of the trial, may stop working. This court has held that a trial court may not speculate on future events that may affect the income stream of a spouse when determining periodic alimony. Edwards v. Edwards, 894 So.2d 698 (Ala.Civ.App.2004). Rather, if a paying spouse retires, thereby reducing his or her income, that spouse may petition for a modification of his or her periodic-alimony obligation as determined by the equities of the then-existing circumstances. Id. By assuming that the husband would
We conclude, based on the foregoing, that the trial court made a factual error in calculating the husband's income, a legal error in determining that it was precluded from considering evidence of the parties' lifestyle, and a second legal error in considering a possible retirement by the husband. Because it appears that those errors impacted the trial court's award of alimony, and because the question of alimony is intertwined with the issue of the division of the marital property, see Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App. 2009), the trial court's judgment is due to be reversed and the cause remanded for reconsideration of those awards.
In the same context, the wife also argues that the trial court erred in finding that she could reasonably be expected to obtain gainful employment in the future. As previously discussed, the wife testified that she suffered from a number of maladies and that, as a result, she could not work. In contrast, the husband testified that the wife was capable of working, with the limitation that she could not stand for long periods. The evidence also showed that the wife had both an undergraduate degree in general health studies and a master's degree in higher education; however, she had not been employed during the marriage, with the exception of occasionally assisting the husband at his law office. Based on the foregoing, we conclude that the trial court's finding that the wife was capable of being gainfully employed was supported by the evidence; thus, we cannot conclude that the trial court erred in its determination in this regard. See Farmers Ins. Co., 873 So.2d at 254-55.
Finally, the wife contends that the trial court erred in its division of the parties' debts. We do not reach this issue. Matters of debt allocation are part of the division of the marital property. See Combs v. Combs, 4 So.3d 1141, 1149-50 (Ala.Civ.App.2008) (assessing division of marital debts in reviewing propriety of property division). The division of marital property, in turn, is intertwined with the issue of alimony. See Stone, 26 So.3d at 1236. Because we are reversing the trial court's judgment with regard to its division of the marital estate and its award of periodic alimony, the trial court will have the opportunity, when entering a new judgment on remand, to address questions of debt allocation as part of its property division and award of alimony.
Based on the foregoing, we affirm the trial court's order denying the wife's discovery of the husband's telephone records, we reverse the trial court's divorce judgment insofar as it addresses alimony and property division, and we remand the cause to the trial court for the entry of a new judgment consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
THOMPSON, P.J., and PITTMAN and MOORE, JJ., concur.
BRYAN, J., concurs in the result, without writing.
THOMAS, J., concurs in part and dissents in part, with writing.
THOMAS, Judge, concurring in part and dissenting in part.
I concur insofar as the main opinion affirms the trial court's determination that the wife was not entitled to discover the cellular-telephone records of the husband and insofar as it affirms the trial court's determination that the wife was capable of
The trial court was confronted with widely disparate testimony regarding the husband's income and the parties' living expenses. Faced with the difficult task of reconciling that testimony, the trial court was required to determine the credibility of the husband and the wife as witnesses and to determine what weight to give the evidence and their respective testimony. It is not this court's function to determine the credibility of witnesses or the weight to give evidence.
J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1184 (Ala.Civ.App.2007).
The trial court's finding that the wife's testimony regarding the parties' living expenses amounted to "speculation and conjecture" was not, as the main opinion asserts, a finding that the trial court thought it was precluded from considering lifestyle evidence; rather, it was a finding that the wife's testimony on the subject was not credible and should be given little weight, a determination that the trial court was entitled to make. See J.C., 986 So.2d at 1184.
Likewise, the trial court's findings regarding the husband's reported income do not indicate, as the main opinion asserts, that the trial court impermissibly relied on the husband's Social Security statement. Although the trial court included information in its findings of fact regarding the income listed on the husband's Social Security statement, it appears that the trial court included that information, along with the parties' tax-return information, to illustrate that the parties' reported income did not agree with the evidence and testimony of the wife regarding the parties' lifestyle. The trial court's judgment does not make a determination that the husband's income equaled the income on the Social Security statement or the parties' tax returns; it only recites the disparity of the testimony and evidence on the subject. The trial court did not expressly state what it found to be the actual income of the husband, and it was not required to so state. Because the main opinion reverses the trial court's judgment based on findings of fact that the trial court did not actually make, I disagree with the main opinion's conclusion on this issue.
The ultimate question we are faced with in this case is whether the trial court exceeded its discretion in determining the division of the parties' marital property and in determining the husband's alimony obligation. In deciding that question, we may not substitute our judgment for that of the trial court or determine what weight the trial court should have given to certain evidence. "The trial court must be allowed to be the trial court; otherwise, we (appellate court judges and justices) risk going beyond the familiar surroundings of our appellate jurisdiction and into an area with which we are unfamiliar and for which we are ill-suited — factfinding." Ex parte R.T.S., 771 So.2d 475, 477 (Ala.2000). I also note that, "even though this court might have reached a different decision than that reached by the trial court, such does not constitute a basis for our reversal of the trial court which heard the evidence and observed the witnesses." Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App. 1989). Because, I discern no error on the part of the trial court in dividing the marital property or in determining the husband's alimony obligation, I would affirm the judgment of the trial court in its entirety.