Daniels v. Daniels ( 2007 )

BRYAN, Judge,

concurring in part and dissenting in part.

I concur in the main opinion insofar as it affirms the trial court’s denial of the husband’s motion to continue and his post-judgment motion. However, I respectfully dissent from the main opinion insofar as it affirms the trial court’s finding that the husband was voluntarily underemployed.

This court has previously reversed a judgment finding a payor parent voluntarily unemployed because the judgment was not supported by sufficient evidence. Tatum v. Carrell, 897 So.2d 313, 323-25 (Ala. Civ.App.2004). In the case now before us, the wife testified that the husband could probably not earn $100,000, a substantial salary that he had earned in recent years. Moreover, the wife also testified that, at the time of trial, the husband’s mental condition rendered him unable to work. The foregoing testimony of the wife tends to establish that the husband is not voluntarily underemployed. That evidence is undisputed. Therefore, the judgment is not supported by sufficient evidence. See id. at 324-25. Accordingly, I respectfully dissent from the main opinion insofar as it affirms the trial court’s finding of voluntary underemployment.

MOORE, J., concurs.