Fidel Martinez Torres v. Janeth Galeana Walderath (Appeal from Blount Circuit Court: DR-21-900081).

Rel: August 23, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2024
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CL-2024-0043
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Fidel Martinez Torres

v.

Janeth Galeana Walderath

Appeal from Blount Circuit Court
(DR-21-900081)

HANSON, Judge.

Fidel Martinez Torres ("the husband") appeals from a judgment

entered by the Blount Circuit Court ("the trial court") that, among other

things, divorced him from Janeth Galeana Walderath ("the wife"). We

reverse the trial court's judgment and remand the case for the trial court
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to make those findings necessary to comply with § 30-2-57, Ala. Code

1975.

Procedural History

The husband and the wife married in 2014. Three children were

born of the marriage. On April 27, 2021, the wife filed a complaint

seeking a divorce from the husband. On June 3, 2021, the husband filed

an answer and a counterclaim for divorce. A trial was held on November

28, 2023. On December 20, 2023, the trial court entered a final judgment

divorcing the parties. The trial court's final judgment of divorce awarded

the parties joint legal custody of the three children with the wife having

"primary physical custody" 1; divided the marital property; ordered the

husband to pay child support in the amount of $1,938.74 per month;

ordered the husband to pay the wife $750 for 60 months as rehabilitative

alimony due on the first day of each month; and ordered the husband to

1Under Alabama law, an award of "primary physical custody" of a

child is construed as an award of sole physical custody, as that term is
defined in § 30-3-151(5), Ala. Code 1975. S.J.H. v. N.T.S., 301 So. 3d 843,
847 n.4 (Ala. Civ. App. 2020); Whitehead v. Whitehead, 214 So. 3d 367,
371 (Ala. Civ. App. 2016). Section 30-3-151(5) defines the term "sole
physical custody" as a situation in which "[o]ne parent has sole physical
custody and the other parent has rights of visitation except as otherwise
provided by the court."

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pay the wife $5,000 for attorney fees. On January 18, 2024, the husband

appealed.2

Discussion

On appeal, the husband challenges the trial court's award of

rehabilitative alimony, the division of marital property, and the award of

attorney fees to the wife. The trial court's failure to comply with § 30-2-

57, Ala. Code 1975, is dispositive. Section 30-2-57 provides, in pertinent

part:

"(a) Upon granting a divorce or legal separation, the
court shall award either rehabilitative or periodic alimony as
provided in subsection (b), if the court expressly finds all of
the following:

"(1) A party lacks a separate estate or his or
her separate estate is insufficient to enable the
party to acquire the ability to preserve, to the

2The husband in the present case did not file a postjudgment
motion. In Hernandez v. Rodriguez, [Ms. CL-2023-0584, Apr. 26, 2024]
___ So. 3d ___ (Ala. Civ. App. 2024), the wife had filed a postjudgment
motion challenging certain aspects of the circuit court's judgment. The
husband did not file a postjudgment motion. Both parties appealed. The
husband challenged the circuit court's failure to comply with § 30-2-57,
Ala. Code 1975, when it awarded alimony to the wife. This court reversed
the circuit court's judgment and remanded the case to the circuit court
with instructions that it enter a new judgment in compliance with § 30-
2-57. In Merrick v. Merrick, 352 So. 3d 770 (Ala. Civ. App. 2021), this
court addressed the application of § 30-2-57 ex mero motu. Accordingly,
the lack of a postjudgment motion does not bar this court from addressing
the application of § 30-2-57.
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extent possible, the economic status quo of the
parties as it existed during the marriage.

"(2) The other party has the ability to supply
those means without undue economic hardship.

"(3) The circumstances of the case make it
equitable.

"(b) If a party has met the requirements of subsection
(a), the court shall award alimony in the following priority:

"(1) Unless the court expressly finds that
rehabilitative alimony is not feasible, the court
shall award rehabilitative alimony to the party for
a limited duration, not to exceed five years, absent
extraordinary circumstances, of an amount to
enable the party to acquire the ability to preserve,
to the extent possible, the economic status quo of
the parties as it existed during the marriage.

"(2) In cases in which the court expressly
finds that rehabilitation is not feasible, a good-
faith attempt at rehabilitation fails, or good-faith
rehabilitation only enables the party to partially
acquire the ability to preserve, to the extent
possible, the economic status quo of the parties as
it existed during the marriage, the court shall
award the party periodic installments of alimony
for a duration and an amount to allow the party to
preserve, to the extent possible, the economic
status quo of the parties as it existed during the
marriage as provided in subsection (g)[of this
Rule].

"….

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"(d) In determining whether a party has a sufficient
separate estate to preserve, to the extent possible, the
economic status quo of the parties as it existed during the
marriage, the court shall consider any and all relevant
evidence, including all of the following:

"(1) The party's own individual assets.

"(2) The marital property received by or
awarded to the party.

"(3) The liabilities of the party following the
distribution of marital property.

"(4) The party's own wage-earning capacity,
taking into account the age, health, education, and
work experience of the party as well as the
prevailing economic conditions.

"(5) Any benefits that will assist the party in
obtaining and maintaining gainful employment.

"(6) That the party has primary physical
custody of a child of the marriage whose condition
or circumstances make it appropriate that the
party not be required to seek employment outside
the home.

"(7) Any other factor the court deems
equitable under the circumstances of the case.

"(e) In determining whether the other party has the
ability to pay alimony, the court shall consider any and all
evidence, including all of the following:

"(1) His or her own individual assets, except
those assets protected from use for the payment of
alimony by federal law.

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"(2) The marital property received by or
awarded to him or her.

"(3) His or her liabilities following the
distribution of marital property.

"(4) His or her net income.

"(5) His or her wage-earning ability,
considering his or her age, health, education,
professional licensing, work history, family
commitments, and prevailing economic conditions.

"(6) That he or she has primary physical
custody of a child of the marriage whose condition
or circumstances make it appropriate that he or
she not be required to maintain employment
outside the home.

"(7) Any other factor the court deems
equitable under the circumstances of the case.

"(f) In determining whether the award of rehabilitative
or periodic alimony is equitable, the court shall consider all
relevant factors including all of the following:

"(1) The length of the marriage.

"(2) The standard of living to which the
parties became accustomed during the marriage.

"(3) The relative fault of the parties for the
breakdown of the marriage.

"(4) The age and health of the parties.

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"(5) The future employment prospects of the
parties.

"(6) The contribution of the one party to the
education or earning ability of the other party.

"(7) The extent to which one party reduced
his or her income or career opportunities for the
benefit of the other party or the family.

"(8) Excessive or abnormal expenditures,
destruction, concealment, or fraudulent
disposition of property.

"(9) All actual damages and judgments from
conduct resulting in criminal conviction of either
spouse in which the other spouse or child of the
marriage was the victim.

"(10) Any other factor the court deems
equitable under the circumstances of the case."

(Emphasis added.)

In Merrick v. Merrick, 352 So. 3d 770, 775 (Ala. Civ. App. 2021),

this court discussed the application of § 30-2-57, stating: "The legislature

has clearly required that an alimony award be either rehabilitative

alimony or periodic alimony and that, to award either type of alimony,

the trial court must make certain express findings …." (Emphasis

added.)

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"[T]he legislature has clearly directed that a trial court must make

express findings as to the establishment of the basis for an alimony

award and as to the specific type of alimony that is awarded." Lopez v.

Rodriguez, 379 So. 3d 455, 462 (Ala. Civ. App. 2023). "The general

purpose of making specific findings of fact is to allow the trial court 'to

carefully review the evidence and to perfect the issues for review on

appeal.' " White v. Jones, [Ms. CL-2023-0511, Feb. 16, 2024] ___ So. 3d

___, ___ (Ala. Civ. App. 2024) (quoting Ex parte Vaughn, 495 So. 2d 83,

87 (Ala. 1986)).

In White v. Jones, the trial court had failed to expressly find that

rehabilitation had not been feasible, nor had it made any other findings

that would justify an award of periodic alimony to the wife as opposed to

rehabilitative alimony pursuant to § 30-2-57(b). This court explained

that

"The legislature evidently intended that a trial court could not
award periodic alimony without first carefully reviewing the
evidence to determine if rehabilitative alimony would be the
more appropriate remedy. The legislature further intended
that an appellate court could not assume that the trial court
had impliedly made the necessary findings so that appellate
review would be directed mainly to determining whether the
evidence supported the express findings made by the trial
court and whether the trial court abused its discretion in
awarding periodic alimony instead of rehabilitative alimony."

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White v. Jones, ___ So. 3d at ___.

In Snyder v. Snyder, [Ms. 2023-0679, May 17, 2024] ___ So. 3d ___

(Ala. Civ. App. 2024), the wife in that case had argued that the trial court

was required to make express findings of fact regarding each of the

factors set forth in § 30-2-57 (d), (e), and (f). This court explained that

Merrick, did not hold that the legislature had categorically required

express finding as to the factors set forth in § 30-2-57 (d), (e), and (f). This

court explained:

"Rather, findings of fact are required by subsection (a) of § 30-
2-57 (and, in certain circumstances, subsection (b) of that
statute) only in connection with awards of either periodic or
rehabilitative alimony -- and only as to the ultimate
determinations of whether a would-be periodic- or
rehabilitative-alimony recipient lacks a sufficient separate
estate to enable that person to acquire the ability to preserve
(to a feasible extent) the parties' marital economic status quo;
whether a would-be paying party has means of preserving the
economic status quo without undue hardship; and whether it
would be circumstantially equitable to require the payment of
either periodic or rehabilitative alimony."

Snyder v. Snyder, ___ So. 3d at ___.

In the present case, the trial court's judgment does not contain the

express findings that § 30-2-57 requires to support an award of

rehabilitative alimony. Because the judgment did not satisfy § 30-2-57,

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we reverse the trial court's judgment and remand the case to the trial

court with instructions that it enter a new judgment in compliance with

§ 30-2-57. We pretermit discussion of the husband's arguments that the

trial court erred in its award of marital property and its award of attorney

fees to the wife. See Cason v. Cason, 378 So. 3d 552 (Ala. Civ. App. 2022)

(holding that because the alimony award was intertwined with the

division of the marital property and the attorney-fee award, those aspects

of the judgment were likewise subject to reversal and reconsideration by

the trial court on remand).

REVERSED AND REMANDED WITH INSTRUCTIONS.

Moore, P.J., and Edwards, Fridy, and Lewis, JJ., concur.

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