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ALIMONY & CHILD SUPPORT - PERSON V. PERSON

Person v. Person, [Ms. 2150225, Jan. 20, 2017] __ So. 3d __ (Ala. Civ. App. 2017)(on application for rehearing). The Court of Civil Appeals in this plurality opinion (Moore, J., Pittman and Donaldson, JJ, concur; Thompson, P.J., and Thomas, J., concurring in the result) revisits its October 21, 2016 opinion which affirmed in part and reversed in part a divorce judgment entered by the Crenshaw Circuit Court concerning the 20-year marriage of former NBA star Wesley Person and his wife. The court’s original opinion remanded the cause for the circuit court to reconsider its judgment as to alimony, child support, and division of marital assets.

On rehearing, the court reverses the circuit court’s judgment to the extent it found an arrearage of $320,000 in child support payments based upon a pendente lite order entered at the wife’s request shortly after the complaint for divorce was filed. The court finds that the pendente lite order failed to conform with the mandatory requirements of Rule 65(b), Ala. R. Civ. P. in that the wife’s petition failed to contain specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss, or damage, would result to the applicant, and the petition was also deficient as the attorney never certified in writing the efforts made, if any, to give notice to the respondent for the reasons why such notice should not be required. Citing Ex parte Franks, 7 So. 3d 391 (Ala. Civ. App. 2008) and Ex parte Hutson, 201 So. 3d 570, (Ala. Civ. App. 2016)(Ms. *10-14) the court holds that the pendente lite order was entered in violation of Rule 65(b) and was therefore a nullity insofar as it purported to award the wife $320,000 in past-due child support.

The court also reverses the judgment under authority of Morgan v. Morgan, 183 So. 3d 945 (Ala. Civ. App. 2014) because the record did not contain any evidence as to the parties’ respective incomes or the needs of the children. Ms. *15-17.

Finally, the judgment awarding alimony is likewise reversed because of the absence in the record of evidence establishing the need for such alimony. Citing Sullivan v. Sullivan, [Ms. 2140760, Feb. 26, 2016] __ So. 3d __ (Ala. Civ. App. 2016), and Shewbart v. Shewbart, 64 So. 3d 1080 (Ala. Civ. App. 2010)(Ms. *19-22), the court finds no evidence that the wife would be unable to maintain her former marital standard of living absent an award of periodic alimony, and without such evidence the trial court must be deemed to have exceeded its discretion in awarding periodic alimony.

The court directs that on remand the trial court is permitted to consider anew the child support issue and whether support should be ordered paid from the date the divorce petition was filed, and the trial court can also reconsider its division of property in light of the reversal of the award of alimony.

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