Bushnell v. Bushnell

• Decision Date: 15 August 1997
• Citation: 713 So.2d 962
• Parties: Susan K. BUSHNELL v. James J. BUSHNELL, Jr. 2960051.
• Court: Alabama Court of Civil Appeals

Page 962

713 So.2d 962

Susan K. BUSHNELL v. James J. BUSHNELL, Jr.

2960051.

Court of Civil Appeals of Alabama.

Aug. 15, 1997.

As Modified on Overruling of

Rehearing Nov. 21, 1997.

Certiorari Denied April 17, 1998

Alabama Supreme Court 1970457.

David Cromwell Johnson of Johnson, Rosenthal, Liddon & Tuggle, Birmingham, for appellant.

Stephen R. Arnold and Linda G. Flippo of White, Dunn & Booker, Birmingham, for appellee.

CRAWLEY, Judge.

James J. Bushnell, Jr. (the "husband"), and Susan K. Bushnell (the "wife") were married in January 1983. They have two children. In February 1995, they separated. The wife sued for a divorce. After an extensive hearing, the trial court divorced the parties.

The trial court awarded custody of the minor children to the wife and ordered the husband to pay $1,338 per month in child support. In addition, the trial court ordered that the children remain enrolled in the Mountain Brook school system. The wife was awarded the use and possession of the marital residence, but she was required to pay all property taxes, to maintain insurance on the house, and to pay for any necessary repairs or other upkeep expenses. The house is to be sold and the profit from the sale divided equally upon the occurrence of one of five events: the wife's death; the wife's remarriage; the wife's cohabitation with a member of the opposite sex; the youngest child's graduation from high school; or the parties' agreement.

In dividing the parties' property, the trial court awarded the husband his IRA, worth approximately $5,600; his 401K account, worth approximately $30,000 or $37,000; and two Merrill Lynch accounts, totalling approximately $365,000. The wife was awarded her IRA, worth $2,400. The husband was required to pay $700 per month in alimony to the wife and to pay her a total of $80,000 as alimony in gross, in yearly installments of $10,000. Each party was made responsible for his or her own debts incurred after the parties' separation.

The wife appeals. She argues that the property division is inequitable; that the requirement that she be responsible for debts incurred after the separation but before the pendente lite order is unfair; that the amount of child support is inconsistent with the guidelines of Rule 32, Ala. R. Jud. Admin., and the husband's ability to pay; and that the restriction requiring that the children remain in the Mountain Brook school system is improper. She specifically argues that the trial court erred in finding that the husband's Merrill Lynch accounts were the husband's separate property and were not subject to division. Although the trial court's order does not state that it so found, the husband concedes that the trial court must have found that those accounts were not marital property and were therefore not divisible.

The parties spent considerable time at trial arguing over the husband's Merrill Lynch accounts. The accounts, known as A-22 and T-34, are worth approximately $200,000 and $165,000, respectively. The wife attempted to establish that the accounts, although substantially funded by the husband's inheritances, were "used regularly for the common benefit of the parties during their marriage." Ala.Code 1975, § 30-2-51. The bulk of the testimony and the other evidence admitted at trial indicates that the account the wife alleges was used for the benefit of the family was A-22. Very little testimony concerned the use of the T-34 account. The husband vehemently opposed the wife's characterization, arguing that the A-22 account was used "sporadic[ally] and [for] specific purposes," that is, only a few times for isolated, "special" expenditures. In his brief, the husband argues that the term "regularly" as used in § 30-2-51 means that the husband's separate property must have been routinely relied upon as a source of funds for regular living expenses.

The husband outlined in his brief the testimony and other evidence concerning the use of the A-22 account. He indicated that in 1994 he transferred money six times to pay income taxes, twice to pay for the family vacation to Disney World, once to repay a loan, and once to purchase a new furnace for the marital residence. According to the husband, in 1993 he transferred money from the A-22 account to pay taxes, to pay an accountant, to make a mortgage payment on the marital residence, and to purchase a piano for the parties' daughter. In other years, transfers from the A-22 account were used to pay taxes, to make mortgage payments, to buy a vacuum cleaner, and to buy a van for the wife. These expenditures, according to the husband, are sporadic and cannot satisfy the burden of proving that the A-22 account was "used regularly for the common benefit of the parties during their marriage." See Ala.Code 1975, § 30-2-51. However, the evidence does not support his characterization of the use of the account as sporadic; the evidence indicates that the account was used frequently or periodically to satisfy the needs of the family.

Although the cases addressing whether a party's inheritance is a separate estate or is marital property have not defined the word "regularly" as it is used in § 30-2-51, see, e.g., Currie v. Currie, 550 So.2d 423 (Ala.Civ.App.1989), and Willmore v. Willmore, 489 So.2d 594 (Ala.Civ.App.1986), we conclude that the account need not be used daily or even weekly to be considered as "regularly" used for the family's benefit. Use of the account frequently or periodically, as is the case here, would be sufficient to make the account subject to division. The husband's own testimony and the records of the A-22 account and the joint account show that the husband periodically deposited funds into the joint account from the A-22 account and, according to him, used that money to pay the joint income taxes, to make the mortgage payment, and to purchase household items, such as the furnace. The husband's argument that the money was not used regularly for the benefit of his family is not persuasive, and we find that the A-22 account was used regularly for the benefit of the marriage and is therefore subject to division.

The trial court has wide discretion over alimony and the division of property and it may use whatever means are reasonable and necessary to equitably divide the parties' property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). Its judgment is presumed correct and will not be reversed unless it is so unsupported by the evidence so as to be unjust and palpably wrong. Grimsley, 545 So.2d at 76. However, that judgment is subject to review and revision. Moody v. Moody, 641 So.2d 818, 820 (Ala.Civ.App.1994). This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1996), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993).

Although the wife's alimony awards, viewed in isolation, are not so low as to constitute an abuse of discretion, we cannot view these items separately. See Albertson, 678 So.2d at 120; Murphy, 624 So.2d at 623. Instead, we view the entire property division and all other provisions of the divorce judgment together to determine whether the division of property is equitable. The wife will receive $700 per month in alimony. She is entitled to $10,000 annually for eight years. She also has the use of the marital residence.

However, she will be living in Mountain Brook, and her children will be attending Mountain Brook schools. She must also maintain the house, paying for all necessary repairs, all taxes, and all insurance herself, even though the husband will receive half of the profits from its eventual sale. Viewing the divorce judgment in its entirety, we conclude that these other aspects of that judgment render the property division inequitable, given the extent of the husband's separate estate.

In conclusion, we agree with the wife that the husband's Merrill Lynch account known as A-22 is indeed marital property and is subject to division. We do not find that the other Merrill Lynch account, T-34, is marital property in light of the lack of evidence concerning the use of that account. We must hold that the division of property is inequitable in light of the considerations outlined above; therefore, we reverse the judgment insofar as it relates to the property division and remand with instructions for the trial court to include the A-22 account as marital property when it redivides the parties' assets.

The wife's second argument is that the trial court erred in allocating the debts of the parties. She argues that she should not be saddled with the debt she accumulated after the separation but before the trial court ordered support pendente lite. However, allocation of the parties' debt is within the sound discretion of the trial court, and its allocation will not be disturbed on appeal unless an abuse of that discretion is shown. Owens v. Owens, 656 So.2d 842, 844 (Ala.Civ.App.1995). The wife has not shown that the trial court abused its discretion, so we affirm as to the trial court's allocation of debt.

The wife also...