Whaley v. Whaley
218 So. 3d 360
Ala. Civ. App.2016Background
- Wife filed for divorce April 2013; husband counterclaimed. After two trials, the trial court granted the divorce and reserved child support, alimony, and property division for later determination.
- Trial court (Nov. 27, 2015) imputed monthly incomes: $8,500 to husband and $1,732 to wife; ordered husband to pay child support ($1,127/mo), periodic alimony ($3,673/mo), and a $35,000 property settlement to wife.
- Court awarded various business interests to the parties, including awarding the wife 20% of KRIP, LLC (and percentages of several other entities) and ordered the wife to receive 67% of distributions from certain companies until formal transfer occurred.
- Court awarded the wife $150,000 for attorney’s fees (matching amounts the husband’s counsel billed), and allocated most business debts to the husband.
- Husband appealed, challenging child-support calculations and imputations, property division (particularly the award of KRIP membership interest despite KRIP’s operating agreement restricting transfers), alimony, attorney’s fees, and admission of audiotape evidence.
Issues
| Issue | Husband's Argument | Wife's Argument | Held |
|---|---|---|---|
| Whether court erred in not deviating from Rule 32 child‑support guidelines for shared custody | Husband: custody schedule entitles deviation because obligor has substantial custodial time | Wife: guideline application presumed correct; deviation discretionary | Court: No abuse of discretion; declining to deviate affirmed (Boatfield principle) |
| Whether court properly imputed incomes for child‑support | Husband: income imputation to wife was too low; his own $8,500 imputation was excessive | Wife: imputation discretion vested in trial court based on evidence of employment history and underemployment | Court: Upheld imputations to wife and husband; husband’s challenge waivered for lack of briefing on record issues |
| Whether trial court could assign 20% of KRIP, LLC to wife despite operating agreement restriction | Husband: KRIP operating agreement prohibits transfer without unanimous consent; court cannot divest interest contrary to agreement | Wife: sought equitable division of marital property including business interests | Held: Trial court erred to extent it divided KRIP interest contrary to operating agreement; property division and alimony reversed and remanded for reconsideration |
| Whether the attorney‑fee award and admission of audiotapes were erroneous | Husband: fee award lacks proof of wife’s fees; audiotapes admitted improperly and prejudiced him | Wife: fees and evidence supported by proceedings; any error not shown to be prejudicial | Held: Attorney‑fee award reversed and remanded for reconsideration (because property/alimony reversed); husband failed to show prejudice from audiotape admission |
Key Cases Cited
- Boatfield v. Clough, 895 So.2d 354 (Ala. Civ. App. 2004) (shared‑custody alone does not require deviation from child‑support guidelines)
- Winfrey v. Winfrey, 602 So.2d 904 (Ala. Civ. App. 1992) (trial court has discretion to impute income for child‑support purposes)
- Clements v. Clements, 990 So.2d 383 (Ala. Civ. App. 2007) (imputation of income is discretionary under Rule 32)
- Kelley v. Kelley, 959 So.2d 109 (Ala. Civ. App. 2006) (trial court should respect buy‑sell/transfer restrictions when disposing of closely held corporation interests)
- Walker v. Walker, 216 So.3d 1262 (Ala. Civ. App. 2016) (property division and alimony are interrelated and reviewed for abuse of discretion)
- Frazier v. Curry, 104 So.3d 220 (Ala. Civ. App. 2012) (remand of attorney‑fee award when property/alimony reversed)
- Middleton v. Lightfoot, 885 So.2d 111 (Ala. 2003) (reversal requires showing that evidentiary error probably prejudiced substantial rights)