824 So.2d 797 (Ala.Civ.App. 2001), 2000900, Nichols v. Nichols

• Citation: 824 So.2d 797
• Date: 28 December 2001
• Docket Number: 2000900.
• Parties: Mary Jane Nichols v. John C. Nichols
• Court: Alabama Court of Civil Appeals

Page 797

824 So.2d 797 (Ala.Civ.App. 2001)

Mary Jane Nichols

v.

John C. Nichols

2000900.

Alabama Court of Civil Appeals

December 28, 2001

Page 798

J. Michael Manasco, Montgomery, for appellant.

Nathan G. Watkins, Jr., of Pruitt, Pruitt & Watkins, P.A., Livingston, for apeellee.

Page 799

THOMPSON, Judge

Mary Jane Nichols (the "wife") and John C. Nichols (the "husband") were married on November 26, 1967. On May 26, 1998, the wife filed a complaint for divorce and a request for a temporary restraining order. In her complaint, the wife requested that the trial court prohibit the disposal of any of the parties' assets until further order of the trial court. On May 20, 1998, the court issued a temporary order prohibiting the parties from disposing of any assets other than their respective personal individual retirement accounts or monies in their personal checking accounts. On June 8, 1998, the husband filed his answer and a counterclaim.

The trial court conducted a hearing in December 2001 and on January 31, 2001, entered a judgment of divorce. Both parties filed postjudgment motions; the trial court modified the divorce judgment on February 21, 2001. The wife appealed.

The parties were married on November 26, 1967. At the time of the trial, the wife was 68 years old and the husband was 69 years old. One child, a son, John D. Nichols, was born of the marriage. Both parties had previously been married. The wife had been widowed since 1965; the three sons from her previous marriage resided with the parties during their marriage. The husband's first marriage had ended in divorce. One child, a daughter, was born of that marriage; the husband's daughter never resided with the parties. All of the parties' children had reached the age of majority at the time of the trial in this matter.

Although the wife is originally from Alabama, she and her first husband lived in Alexandria, Virginia. Soon after her first husband died, the wife sold her home in Alexandria and returned to Sumter County, where her parents resided. The wife used the proceeds from the sale of the Alexandria home, along with the insurance proceeds from her first husband's death, to build a house in Sumter County.

According to the testimony of the husband, at the time of the parties' marriage he owned an automobile and had $10,000 in savings; the wife's testimony reveals she had no knowledge of the money he had in savings. In October 1968, less than a year after the parties were married, the couple purchased their first home from the husband's previous employer for $1.

When the parties first married, the husband worked as a sales manager at the Allison Lumber division of American Can. The husband later worked as a salesperson with Bellamy Lumber Company, and after that he owned a hardware store. The husband then started John C. Nichols, Inc. That corporation was eventually merged into AT & N Lumber Services, Inc. (AT & N). AT & N prospered, with expanded operations in York, Alabama (AT & N II), and Thomasville, Georgia (AT & N III). The wife served as a corporate officer of AT & N, but was removed as an officer after she filed her complaint for a divorce. At some point during the parties' marriage, the husband also acquired a controlling interest in Ohio River Transload Service, Inc. ("Ohio River"). After the husband retired in 1997, he sold AT & N II and AT & N III. The husband financed the sales of these two businesses and, at the time of the divorce trial, the husband was receiving monthly payments from buyers.

At the time the wife filed her petition for a divorce, the husband still controlled Ohio River and AT & N. According to the record, Ohio River, at a minimum, listed on its balance sheet the following assets: a house, an automobile, and notes receivable for the sale of three forklifts. The record indicates that Ohio River's only liability

Page 800

was a note payable to AT & N.¹ Ohio River's balance sheet also included the accumulated depreciation on the house, the automobile, and some equipment.² The husband still owned AT & N at the time of the trial in this matter. Although two divisions of the business had been sold, AT & N still had substantial assets at the time of the trial. These assets included equipment, real property, notes receivable, and stock.

Although the wife worked mainly inside the home during the parties' marriage, she had worked outside the home for approximately a year and a half at a school cafeteria. The wife suffered multiple back injuries in a 1992 car accident. She received a $110,000 settlement as a result of that accident. The wife's testimony indicates that she, among other things, used the settlement proceeds to repay credit-card debts, to assist the two younger children with expenses, to remodel portions of the parties home, and to purchase a coat for herself.

During the marriage the parties acquired approximately 890 acres of real property known as the "North of Livingston" property. They also acquired 26 acres of real property in Coatopa, Alabama, (the "Coatopa" land), and 478 acres of real property in Ward (the "Ward" land). Of the Ward land, the husband had inherited 300 acres and a house from his mother. The marital home was built on additional property acquired by the parties in Livingston, Alabama.

The record indicates that the family used the Ward property for hunting and for other purposes before and after the husband's mother died. The husband testified that he maintained an account (the "farm account") separate from the family accounts. According to the husband, income derived from Ward property inherited from his mother was placed in the farm account and the expenses associated with that property were paid from that account. The record indicates that following the death of the husband's mother, timber was cut from the Ward land. According to the record, the husband received payment for the sale of the timber by check. The husband testified that the check was deposited into a bank account, but he was sure it was not deposited into the AT & N account. From the proceeds from the sale of the timber, the husband leased a family car for $12,500 and paid debts. Hay was grown on and sold from the property. The proceeds from the sale of the hay was deposited into the farm account. The record also indicates that although the upkeep for the Ward house was paid from the account, both before and after the divorce was filed, family expenses were also paid from the farm account. According to the testimony of the bookkeeper for the family businesses, those expenses include household expenses for the Livingston house such as satellite television, termite control, and insurance. The parties built a barn on the Ward property. According to the husband's testimony, he borrowed the money used to build the barn from AT & N, but subsequently paid it back. After the divorce action was filed, the husband paid support payments to the wife from the farm account.

Page 801

According to both the testimony of the wife and the husband, many of the parties' family expenses were paid through AT & N. The parties housekeeper was paid with checks issued from AT & N. Although the wife was an officer in AT & N and signed documents for the company, she was not employed by AT & N; however, she received a paycheck from AT & N.

At the time of the trial, the wife's income consisted of a $550 monthly Social Security payment. The husband received $13,223.22 monthly from a combination of Social Security payments and payments from the sale of the divisions of...