E.A.B. v. D.G.W.

• Decision Date: 10 August 2012
• Docket Number: 2100718.
• Citation: E.A.B. v. D.G.W., 127 So.3d 422 (Ala. Civ. App. 2012)
• Parties: E.A.B. v. D.G.W., Jr. D.G.W., Jr. v. E.A.B.
• Court: Alabama Court of Civil Appeals

127 So.3d 422

E.A.B.

v.D.G.W., Jr.

D.G.W., Jr.

v.E.A.B.

2100718.

Court of Civil Appeals of Alabama.

Sept. 7, 2012.

Certiorari Denied Aug. 10, 2012

Alabama Supreme Court 1111152. ^*

Robert E. Gibney, Mobile; and Lois A. DiVietro, Las Vegas, Nevada, for appellant/cross-appellee E.A.B.

Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham; and David P. Broome, Mobile, for appellee/cross-appellant D.G.W., Jr.

On Application for Rehearing

BRYAN, Judge.¹

This court's opinion of May 18, 2012, is withdrawn, and the following is substituted therefor.

E.A.B. (“the wife”) appeals from a judgment divorcing her from D.G.W., Jr. (“the husband”), and the husband cross-appeals. We affirm.

The parties married in June 1990 and separated in July 2008. When the action was tried in November 2010, the wife was 44 years old, and the husband was 50. The parties had a daughter in 1994 and a son in 1996. When the action was tried, the daughter was a junior at a private boarding school, and the son was a freshman in the local public-school system.²

The husband is an attorney in private practice with a law firm (“the law firm”). He owns an interest in the law firm and has personally guaranteed debt owed by the law firm. In addition, he owns an interest in a partnership (“the partnership”) that owns real property used by the law firm. His adjusted gross income was $369,342 in 2007, $1,276,794 in 2008, and $1,368,623 in 2009. From January 1, 2010, through mid-November 2010, when the action was tried, the husband had received gross draws from the law firm totaling $768,332.07.

The wife graduated from Birmingham Southern College and earned a paralegal certificate from Spring Hill College. She worked full time as a paralegal for a short period before the parties' daughter was born in 1994. When the daughter was born, the wife stopped working to care for the daughter, and she did not work outside the home again until the children entered school; at that point, she began working as a substitute teacher at their school. In the spring of 2008, she began working part time at a store (“the bookstore”) that sells books and other miscellaneous merchandise.She was still working part time at the bookstore for $7.50 per hour when this action was tried. Her income from the bookstore in 2009 totaled $12,714.59, and her anticipated income from the bookstore for 2010 was approximately $12,000. Throughout the marriage, the wife participated in volunteer organizations. She served as president of the parent-teacher organization at her children's school and participated in the activities of the local youth-baseball league, the local literacy council, the local United Way, a local choral society, and a local branch of the Junior Auxiliary.

The wife testified that the marriage had irretrievably broken down when the husband informed her in October 2009 that he had begun dating another woman.

The husband, on the other hand, testified as follows regarding the breakdown of the marriage. The problems in the marriage had begun shortly after the parties' son was born in 1996 as a result of the wife's behavior changing. The wife exhibited a cold attitude toward the parties' daughter, stopped keeping the house orderly, stopped cooking on a regular basis and did not cook nutritious meals when she did cook, stopped exercising, and allowed her weight to increase a great deal. Those problems became progressively worse. He told the wife that he thought she might be suffering from depression; however, she did not seek professional help. In 2002, he took the wife to Hawaii and discussed the problems he was having with her; however, he saw no improvement after they returned from Hawaii. The husband asked the wife to prepare the interior of their house for Hurricane Ivan in 2004 and for Hurricane Katrina in 2005 so that he could devote his time and attention to preparing the exterior; however, the wife ignored his requests. Their house was flooded by Hurricane Katrina, and their personal property suffered damage from the flooding that could have been avoided if the wife had prepared the interior of the house for the hurricane as he had requested. In 2006, the parties ceased having intimate relations and began sleeping apart. In 2007, he saw the wife physically shove the daughter, which he considered unacceptable behavior by a parent. Thereafter, he arranged for family counseling with a therapist; however, he saw no improvement in the wife's behavior after a year of counseling. In April 2008, the wife legally changed her last name to her maiden name without telling him. In the spring of 2008, the husband suggested to the wife that they separate, and he suggested that she find a house to live in near the family residence. The wife found a house she liked (“the wife's new house”) that was near the family residence. The husband paid a down payment of $47,000 for the wife's new house and financed the balance of the purchase price. He gave the wife her choice of the furniture in the family residence and paid for approximately $6,000 of additional furniture she picked cut at a furniture store. In July 2008, the wife moved into the her new house. The children remained with the husband in the family residence. He had hoped that the separation would be temporary and that they could work out their differences; however, the wife's comments became “very nasty” and their relationship became worse instead of better. Consequently, he came to the conclusion that there was no way to improve the relationship and that there was no hope of continuing the marriage. The parties attempted to reach an agreement regarding the terms of a divorce and participated in a mediation in April 2009; however, the attempts to reach an agreement were unsuccessful. On August 15, 2009, he met a woman, and they began dating. A romantic and sexual relationship developed, and, in October 2009, he told the wife that he was dating. Subsequent to August 15, 2009, he took the other woman on trips and bought her gifts, including a “promise ring” that cost $5,313.75. His relationship with the other woman was ongoing when the action was tried.

On January 15, 2010, the husband sued the wife for a divorce on the ground of incompatibility, and the wife subsequently counterclaimed for a divorce on the grounds of incompatibility and adultery. The trial court received evidence ore tenus at a bench trial on November 2, 3, 16, and 18, 2010. On November 24, 2010, the trial court sent the parties' attorneys an e-mail accompanied by a draft of the judgment. The e-mail, which was made an exhibit of the court during a March 1, 2011, hearing on the parties' postjudgment motions, stated, in pertinent part:

“I want to tell you a little about my reasoning in this case. First, I believe it is very clear from the evidence that this marriage was irretrievably broken in 2008. The [husband's] relationship with [the other woman] started long after that time, and I believe it did not in any way contribute to the breakdown of this marriage. Therefore, I did not give that any weight in making my ultimate decision.

“Additionally, I allocated no value in my calculations to [the husband's] interest in the law firm or the firm's building partnership, outside of what it allows him to produce in income. His contingent liability on the firm's line of credit exceeds his member's equity, and further, although his interest may be shown as $611 [thousand] on paper, I don't view that as a tangible or marketable asset from which [the wife] should be awarded an interest.

“I imputed income to [the wife] at $40,000, as I believe that is a fair salary for a legal assistant or paralegal with her education and leadership skills. I calculated alimony and child support based on this. Certainly she may decide to continue to work part time as a book seller, but she must make the choice then to reduce her lifestyle accordingly. Also, from the perspective of alimony, I took into account the tax consequences when I calculated what I believe to be a fair amount.”

The trial court entered a divorce judgment on December 2, 2010. The judgment did not state a ground for the divorce. As subsequently amended, the judgment awarded the husband the following marital assets for which the record indicates a value:

Asset

Net Value

family residence

$ 319,000

Highway 181 property

3,000

Point Clear property

141,000

County Road 24 property

35,000

pick-up truck

4,400

Mustang

15,000

Land Rover

18,000

Suburban

5,000

Boston Whaler boat

5,000

Kubota tractor

24,000

Ford tractor

24,000

Caterpillar tractor

37,000

1933 Ford

32,000

antique race cars

6,250

golf cart

2,500

3 motorcycles

1,700

interests in law firm and partnership

611,667

1/2 of husband's 401(k)

331,000

cash

365,000

Total net value

$1,980,517

The judgment ordered the husband to pay the mortgage on the wife's new house, which the trial court awarded to the wife. The balance owed on that mortgage was $177,362. Subtracting that $177,362 from the total net value of the assets listed above reduces the net value of the husband's share of the assets for which the record indicates a value to $1,803,155 ($1,980,517 minus $177,362 equals $1,803,155).

In addition, the judgment awarded the husband the following marital assets for which the record does not indicate a value: his personal effects and heirlooms; a canoe; art work; antique furniture; three trailers; race-car tires; a coin collection; and all furniture, furnishings, tools, and lawn-care equipment located at the family residence.

As subsequently amended, the judgment awarded the wife the following marital assets for which the record indicates a value:

Asset

Net Value

wife's new house

$200,000

Land Cruiser

7,500

race cars

1,250

1/2 of husband's 401(k)

331,000

cash

50,000

Total net value

$589,750

In addition, the judgment awarded the wife the following marital assets for which the record does not indicate a value: her jewelry, personal effects, and heirlooms; portraits of the children; a collection of...