
    Larry SMITH v. Rachel SMITH.
    2981313.
    Court of Civil Appeals of Alabama.
    April 14, 2000.
    
      Bryant F. Williams, Jr., Ozark, for appellant.
    Submitted on appellant’s brief only.
   On Rehearing Ex Mero Motu

MONROE, Judge.

This court’s opinion of March 3, 2000, is withdrawn and the following is substituted therefor:

After 21 years of marriage, Rachel Smith, the wife, and Larry Smith, the husband, were divorced on the ground of incompatibility of temperament. At the time of the trial, the parties had a 20-year-old son, who was attending college, and a 14-year-old daughter. The wife was awarded custody of the daughter, and the husband was ordered to pay $230 a month in child support.

The trial court ordered the husband to pay $350 a month in periodic alimony and to pay $350 toward the wife’s attorney’s fee. The court also divided the marital property and allowed the wife to live in the marital home until the father no longer has an obligation to support the younger child. At that time, the marital home is to be sold and the proceeds divided equally between the parties. According to the judgment, the husband is responsible for the debt secured by the first mortgage on the home; the wife is responsible for paying the debt secured by the second mortgage. Each party was awarded the property in his or her possession, as well as his or her own personal effects. The husband received a 1985 Ford Ranger pickup truck; the wife received a 1995 Chevrolet Corsica automobile and a 1996 Mercury. The wife also was ordered to pay $20,770 of the parties’ total marital debt of $27,070; the husband must pay the remaining $6,300 in marital debt. The husband appeals.

The husband contends that the trial court abused its discretion in awarding the wife alimony of $350 per month and in dividing the marital property. The wife did not favor this court with a brief on appeal.

In a divorce case, the division of property and the award of alimony are issues committed to the sound discretion of the trial court. Peck v. Peck, 581 So.2d 1119 (Ala.Civ.App.1991). Further, the trial court’s judgment regarding these issues will not be disturbed on appeal unless it is shown that the trial court plainly and palpably abused its discretion or unless it is shown that the trial court’s determination is clearly and obviously wrong. Peck, 581 So.2d 1119. Additionally, we note that when reviewing a trial court’s judgment based upon ore tenus evidence, this court must presume the judgment to be correct. Id.

The law does not require that a division of marital property be equal, only that it be equitable, under all the circumstances of the particular case. Edge v. Edge, 628 So.2d 634 (Ala.Civ.App.1993). In McCluskey v. McCluskey, 495 So.2d 66 (Ala.Civ.App.1986), this court set out the following factors to be considered by the trial court when dividing marital property in a divorce case: the length of the marriage, the parties’ ages, health, and station in life, future prospects of the parties, and the conduct of the parties regarding the breakdown of the marriage.

According to the record, the husband earns $2,660 a month and the wife earns $2,293. The wife testified that she pays most of the expenses for the son, who is attending college. We note that the dissent takes exception to the trial court’s apparent consideration of the wife’s expenses related to the son. The parties did not divorce until after the son had already passed the age where the wife could petition for postminority support. While the husband is no longer obligated to help support the son by way of court-ordered postminority support, we fail to see why the expenses incurred by the wife in helping the son should not be considered just as any other expenses of the wife. However, this holding is limited to the peculiar facts of this case. Furthermore, we note that with one judge concurring with this holding, one concurring in the result, and two dissenting, this case cannot properly be cited as authority.

The dissenting judges conclude that the trial court abused its discretion in dividing the marital property and ordering the husband to pay $350 a month as periodic alimony; it appears he is substituting his judgment for that of the trial court. A close look at the record shows that neither party is experiencing any kind of financial windfall from this divorce. It appears that neither party will have an easy time financially after the divorce.

It is axiomatic that this court cannot substitute its judgment for that of the trial court. In looking at the way the trial court divided the parties’ property and their debt, we cannot say that that division of property or the award of periodic alimony to the wife was plainly and palpably wrong. Therefore, the judgment of the trial court is affirmed.

OPINION OF MARCH 3, 2000, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

YATES, J., concurs.

ROBERTSON, P.J., concurs in the result.

CRAWLEY and THOMPSON, JJ„ dissent.

THOMPSON, Judge,

dissenting.

The wife alleged the husband had an affair that caused the breakdown of the marriage; he denied that allegation. Even considering that the trial court could have determined that the husband was responsible for the breakdown of the marriage, I do not find the property division and alimony award to be equitable.

The husband was awarded his vehicle and the personal property already in his possession. He was ordered to pay $230 in monthly child support, $350 monthly as periodic alimony, and, “as periodic alimony,” he was ordered to pay the $468 monthly payment for the first mortgage on the marital home, plus any taxes and insurance for that home. In addition, the husband was required to make monthly debt payments of $185 and to pay for 54% of the medical expenses for the parties’ “children.”

The husband earns $26,809 annually at his job. He earned gross income of $4,047 during 1998 by umpiring in various sports. The husband testified that from that amount he paid approximately $2,400 for dues, uniforms, association fees and training camps, and paid other amounts for travel expenses.

The wife testified that the husband’s monthly gross income was $2,660. She arrived at that figure by adding the husband’s gross wages from his job of $26,809, the $4,047 in income that he received as an umpire, and an additional $900 of unreported income from umpiring that she alleged the husband was paid “in a way where we wouldn’t have to file taxes.” The husband disputed receiving the additional $900. The wife does not factor into her calculation of the husband’s income from umpiring the costs he incurs in that job.

It is undisputed that the husband’s net income is $1,524.52 per month from his full-time employer. Assuming that the husband made a net profit of $100 per month from umpiring, his total income would be $1,624.52, from which he was ordered to pay total monthly payments under the divorce judgment, excluding the medical expenses and taxes and insurance for the marital home, of $1,233.

Thus, after making the payments ordered under the divorce judgment, the husband has a monthly total net income of $391.52 to pay his own rent, utilities, food, and automobile expenses. “The trial court must consider the husband’s ability to pay in determining amounts to be awarded as alimony and child support.” Wilson v. Wilson, 709 So.2d 1264 (Ala.Civ.App.1998). In Wilson, this court held that the trial court abused its discretion in ordering the husband to make payments under a divorce judgment that left the husband $372 per month with which to pay his own expenses. Under the authority of Wilson, I conclude that the trial court abused its discretion in its property division and alimony award in this case.

Also, the wife, in calculating her monthly expenses, included amounts for the support of "the parties’ 20-year-old son, who was a full-time college student. The mother presented no evidence regarding what her expenses would be if the expenses of the parties’ 20-year-old son were excluded.

A trial court does not have jurisdiction to award amounts for the support of a child of the parties who had already reached the age of majority before the complaint for a divorce, or the petition for a modification, was filed. Ex parte Barnard, 581 So.2d 489 (Ala.1991); Ex parte Bayliss, 550 So.2d 986 (Ala.1989). A parent may be required to support an adult child if the adult child is disabled and unable to support himself or if an application for postminority support for college expenses is made before the child reaches the age of majority. Ex parte Bayliss, 550 So.2d 986 (Ala.1989), and Ex parte Brewington, 445 So.2d 294 (Ala.1983). Nothing in the record of this case indicates that the son is disabled and unable to contribute to his own support. Further, the complaint seeking a divorce was filed after the parties’ son had reached the age of majority. Therefore, the parties’ adult son does not fall within one of the two recognized exceptions to the rule that a parent is not required to support an adult child.

I conclude that in allowing the trial court to consider expenses related to the support of the parties’ adult child in fashioning its property division and alimony award, this court has impermissibly allowed the trial court to legally require the father to contribute to the support of an adult son.

I believe that the trial court’s property division and alimony award are clearly an abuse of discretion, and that, in regard to those matters, the trial court erred in considering amounts that included the support of the parties’ adult son. Where it is clear that the trial court abused its discretion, this court must reverse. Peck v. Peck, 581 So.2d 1119 (Ala.Civ.App.1991); Brannon v. Brannon, 477 So.2d 445 (Ala.Civ.App. 1985). Because I would reverse, I must respectfully dissent.

CRAWLEY, J., concurs.  