TenEyck v. TenEyck

Decision Date10 October 2003
Citation885 So.2d 146
PartiesWilliam Scott TENEYCK v. Christine Ann TENEYCK. Christine Ann TenEyck v. William Scott TenEyck.
CourtAlabama Court of Civil Appeals

Joshua J. Lane, Anniston, for appellant/cross-appellee William Scott TenEyck.

George A. Monk of Brooks, Harmon & Monk, LLC, Anniston, for appellee/cross-appellant Christine Ann TenEyck.

Alabama Supreme Court 1030188.

On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued July 11, 2003, is withdrawn, and the following is substituted therefor.

William Scott TenEyck ("the husband") and Christine Ann TenEyck ("the wife") were married in October 1996 after a 12-year relationship. The parties met when both were working for a truck-driving school in Arkansas. Both parties had children from prior relationships; the husband had three sons, and the wife had a daughter, who the husband later adopted. The parties had one son, who was born in March 1997. The parties separated on December 30, 2000.

The husband has a high-school education. He is a member and owns a majority interest in Alabama Driver's Academy, LLC ("the Academy"), which operates a truck-driving school. At the time of trial, the Academy had two campuses in Alabama — one in Eastaboga and one in Mobile. The Academy began operations in October 1996. Although the testimony on the amount of assistance provided to the Academy by the wife is disputed, the wife did assist the husband in the start-up of the business by typing school catalogs, researching financial issues, and preparing a building for use as a truck-driving school and as a dormitory for students. The husband characterized the wife's contributions to the Academy as "slim to none," while the wife insisted that her assistance was more substantial, stating that without her assistance and her income during the early days of the business, the Academy would not have existed.

When the Academy first opened in October 1996, the husband and two other people were members in the LLC. However, in 1997, the husband bought out the other members' interests. He testified that he then made his wife a member of the LLC because Alabama law required two members in order to form an LLC. He testified that he assigned the wife a 1% membership in the LLC because he thought that was equal to her contribution to the Academy. He is the only other member of the LLC, retaining a 99% membership interest. The wife testified that she knew the husband had made her a member in the LLC, but she stated that she had not read the amended operating agreement and was not aware of the percentage of membership he had assigned her. She said she had trusted her husband and had been supportive of what she considered a joint enterprise, since they had discussed earlier in their relationship their dream of owning their own truck-driving school. During the first few years of business, the Academy struggled; in 1998, for example, the Academy posted a loss of $11,000. However, in 2000, the Academy posted earnings of $336,000. The husband testified, however, that since the terrorist attacks of September 11, 2001, the Academy had experienced a dramatic decrease in enrollment. In addition, he explained that a company known as Student Financial Corporation ("SFC"), which had financed tuition for students of the Academy, had gone out of business in February 2002; he said that SFC still owed the Academy $430,000. The husband testified that the Academy had dropped its tuition from an all-time high of $7,995 to $3,995 if a student paid the tuition or $5,995 if the student financed the tuition through Partners' Financial Services, Inc., another finance company with which the Academy did business.

The husband testified that his salary was $2,000 per week; he said that he was not always paid and that he had, shortly before the trial, reduced his salary to $1,000 per week. However, between January 2001 and August 2001, the husband withdrew from the Academy's account $534,289. After withdrawals by the wife of $61,000 during the same period, the account still contained $132,000.

The Academy leased one parcel of property and purchased another parcel in Mobile in 2000. The husband testified that he leased the first parcel for $340,000; he testified that he paid $60,000 as a "down payment" on that property. He testified that he had not terminated his lease on the first parcel because he "had money in it." The husband further testified that a better parcel became available shortly after he leased the first parcel, so he purchased the second parcel. The cost of the second parcel was $220,000; the husband testified that he paid $30,000 as a down payment on the second parcel and that he made monthly payments of $2,400 on what he testified was a $205,000 balance as of the date of the trial. A structure to house the Academy's Mobile campus was built on that parcel; its cost was $163,000, of which approximately $72,000 was still outstanding.

The husband also leases a racetrack facility known as Green Valley Race Track for $500 per race. He has an option to buy the property for $400,000. During the term of his lease, which began in 1998, the husband has spent over $500,000 (some testimony in the record indicates that the husband has spent $800,000) for improvements to the racetrack property. The husband's testimony reveals that the races at the track seldom generate profit of more than a few thousand dollars per race weekend; more often, however, the events barely break even.

The wife has a master's degree.1 She taught school when the parties lived together in Indiana before moving to Alabama in 1996. She also taught in the Talladega County school system from the fall of 1986 until the end of May 2000. The wife made $36,000 per year in her last teaching position. At the time of trial she was employed part-time, teaching a calculus class for $325 per month.

The parties lived in a portion of the building used as the Academy's Eastaboga campus. The building was an old schoolhouse consisting of three wings. The parties' residence was in one of the wings. Accordingly, the Academy owns the parties' residence. In addition, the Academy owns several of the automobiles used by the parties, including a 2001 Mercedes, which cost $95,000, and a 1986 Mercedes, which cost $36,000. Both cars were purchased in 2000.

After a trial, the trial court divorced the parties. In it original divorce judgment, the trial court awarded the husband all interest in the Academy. The trial court awarded the wife $500,000 as alimony in gross, which the trial court found represented her ownership interest in the Academy. The judgment also awarded the wife $700 per month in periodic alimony. The trial court permitted the wife to have the use of the marital residence until the husband had paid $100,000 of the alimony-in-gross award. The judgment required the wife to move within 60 days of receiving the $100,000. The parties were awarded joint legal custody of their son and daughter, with the wife having sole physical custody; the husband was ordered to pay $1,079 per month in child support. The judgment also awarded postminority educational support for the daughter. Both parties filed postjudgment motions. After a hearing, the trial court amended the judgment. The amended judgment awarded the wife $500,000 as alimony in gross; awarded the wife a lien against the husband individually and against the Academy to secure the alimony-in-gross award; set up a schedule whereby $25,000 of the alimony-in-gross award would be paid within 60 days of the date of the judgment and $2,500 installments would be paid monthly thereafter; and reserved jurisdiction to modify the amount of the monthly payment. The amended judgment further permitted the wife to remain in the marital residence until $25,000 of the alimony-in-gross award was paid and denied the wife periodic alimony; however, the trial court reserved jurisdiction over the issue of periodic alimony. Finally, the amended judgment denied postminority educational support for the daughter on the basis that Ex parte Bayliss, 550 So.2d 986 (Ala.1989), violates the separation-of-powers doctrine and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; the trial court specifically relied upon Chief Justice Moore's dissent in Ex parte Tabor, 840 So.2d 115, 123 (Ala.2002) (Moore, C.J., dissenting), in which the Chief Justice attacked the holding of Ex parte Bayliss on both of those grounds. Both parties appeal.

I. The Husband's Appeal

The husband raises three issues on appeal. He first argues that the trial court's $500,000 alimony-in-gross award is excessive. He then argues that the alimony-in-gross award was mislabeled by the trial court and that it is, in actuality, an award of periodic alimony, which he also argues is excessive. Finally, the husband argues that the trial court lacked jurisdiction to order a lien against the property of the Academy.

A. Whether the Trial Court's Award of $500,000 to the Wife Is Alimony in Gross or Periodic Alimony

Our supreme court has explained the difference between periodic alimony and alimony in gross. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Alimony in gross is considered "compensation for the [recipient spouse's] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple's jointly owned assets is not practicable." Ex parte Hager, 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award "must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested." Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App.1986). It must also be payable out of the present estate of the paying spouse as it exists at the time of the divorce. Ex parte Hager, 293 Ala. at 55, 299 So.2d at 750. In other words, alimony in gross is a form...

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