Beck v. Beck

• Decision Date: 11 October 2013
• Docket Number: 2120364.
• Parties: Danny BECK v. Nancy Capps BECK.
• Court: Alabama Court of Civil Appeals

142 So.3d 685

Danny BECK

v.Nancy Capps BECK.

2120364.

Court of Civil Appeals of Alabama.

Oct. 11, 2013.

G. John Durward, Jr., of Durward & Cromer, Birmingham, for appellant.

Traci Owen Vella of Vella, King & Jackson, Birmingham, for appellee.

PER CURIAM.

Danny Beck (“the husband”) appeals from the judgment of the Jefferson Circuit Court (“the trial court”) divorcing him from Nancy Capps Beck (“the wife”). The divorce judgment, among other things, awarded the wife $200,000 as a property settlement, ordered the husband to pay to the wife periodic alimony in the amount of $2,000 per month, and ordered the husband to pay the wife an attorney fee in the amount of $15,250.

The record indicates the following facts relevant to this appeal. On February 17, 2011, the wife filed in the trial court a complaint seeking a divorce based on incompatibility of temperament. The wife sought, among other things, a division of the parties' real and personal property, periodic alimony, and alimony in gross. The wife requested that the husband be required to pay her “health insurance costs” and be responsible for the parties' debts. The wife also sought an attorney fee.

Also on February 17, 2011, along with the complaint for a divorce, the wife filed a motion for a temporary restraining order, requesting, among other things, that the trial court restrain the husband from disposing of or hiding any money or property, including his company's business assets. The following day, on February 18, 2011, the trial court entered an ex parte temporary restraining order to that effect, but it also permitted the husband to pay for ordinary, customary, and necessary personal and business expenses. On February 28, 2011, the husband answered and denied the material allegations in the wife's complaint.

On April 14, 2011, the wife filed a motion for, among other things, pendente lite support. On May 26, 2011, the trial court entered a consent order that, among other things, required the husband to pay the wife pendente lite support in the amount of $900 per month. That order further required the husband to pay to the wife an additional amount each month equal to 25% of his net earnings in excess of $3,000 per month. That order also required the husband to maintain the health insurance currently covering the wife.

On July 22, 2011, the wife filed a motion for contempt alleging that the husband had failed to pay pendente lite support as set out in the consent order.¹ On August 22, 2011, the husband filed a motion to modify the consent order alleging that a material change of circumstances had occurred because, he asserted, since the consent order had been entered, he was earning less money, his ability to pay support had been reduced, and his company had become unable to pay the health-insurance premiums and the wife's health insurance had therefore lapsed. The husband sought termination of his pendente lite support obligation as well as his obligation to maintain health insurance for the wife. On December 5, 2011, the husband filed a motion to withdraw his motion to modify the consent order; that motion was granted on December 6, 2011.

On July 24, 2012, the wife filed a new motion for contempt alleging, among other things, that the husband had failed to pay pendente lite support as set out in the consent order. The wife also alleged that the husband had violated the temporary restraining order by disposing of property and by spending money “in excess of the usual, ordinary, necessary and customary day-to-day spending.” On August 24, 2012, the wife filed another motion for contempt alleging that the husband had canceled, and/or had allowed to lapse, the health insurance he was required to maintain for her under the consent order. On August 24, 2012, the trial court entered an order setting a hearing on the contempt motions for the same date the trial of the divorce action was scheduled.

On August 29, 2012, the trial court held a hearing at which it received ore tenus and documentary evidence. Although that hearing was not transcribed, the trial court later adopted the husband's Rule 10(d), Ala. R.App. P., statement of the evidence. Based on the Rule 10(d) statement of the evidence and the exhibits that statement reflects were admitted into evidence, ² the record contains evidence indicating the following facts.

The parties were married in June 1975. At the time of the hearing, they had been married more than 37 years; the wife was 54 years old and the husband was 56 years old. The parties have three grown children.

Since 2011, the husband had been living with his girlfriend (hereinafter referred to as “the paramour”). The husband had had three affairs during the parties' marriage—the first affair occurred during the 1980s; the second affair occurred during the late 1990s/early 2000s; and the third affair involves the paramour. The wife admitted that she had been aware of each affair at the time it occurred. The husband testified that the parties were not having marital problems at the time he met the paramour. The husband stated that he still loved the wife and that she is “the best person he knows.”

At the time of the hearing, the bank had foreclosed on the parties' marital home; the wife was living with her parents, and, as noted earlier, the husband was living with the paramour.³

The wife testified that she had completed the 10th grade of high school but had not obtained a GED because, she said, the husband “would not let her.” ⁴ The wife did not work during the parties' marriage. The husband testified that, toward the end of their marriage, he asked the wife to obtain a job.

At the time of the hearing, the wife was not working but had been “sitting” with her aunt “daily,” apparently to assist her parents in caring for her aunt. The wife's aunt is in poor health and cannot take care of herself. The wife's parents do not pay her for assisting with the care of her aunt, but they give her money “if she needs it.” The wife testified that she would like to live on her own, and her proposed monthly expenses totaled $4,507; approximately $1,250 of those expenses were allocated to rent.

The wife testified that, to her knowledge, she and the husband did not own any assets other than furniture and the husband's business, Ace Masonry, Inc. (“Ace Masonry”). The record contains no evidence of the value of the furniture. The wife admitted she did not know whether Ace Masonry was still in business.

The wife has health problems. In 1989, the wife underwent brain surgery to treat seizures. In 2001, the wife underwent surgery to treat breast cancer. The wife takes medicine every day for her health issues. During the hearing, on cross-examination, the wife answered many of the questions by stating: “I don't remember” or “I don't understand the question.” The wife testified that she had applied for, but had been denied, “disability.”

The husband has a GED. He did not attend college. The husband is a brick mason. The husband testified about Ace Masonry, a company he started with his father and his brother, Johnny Beck (“the brother”), more than 20 years ago. The husband stated that the best years for Ace Masonry were around 2000 and that the best year was 2007. The husband explained that Ace Masonry is a subchapter “S” corporation and that his share of profits and losses flows through the corporation to him and is reported on his personal income-tax returns.

The husband testified that around 2000 Ace Masonry's in-house bookkeeper embezzled money from the company. The husband stated that the bookkeeper was criminally prosecuted for the embezzlement.

The husband explained that, after the embezzlement matter, the brother left the company. According to the husband, the brother left because Ace Masonry owed more than $1,000,000 to the government and vendors. The husband testified that, in 2004, the brother sued Ace Masonry and was awarded a judgment in the amount of $350,000. According to the husband, the brother then claimed that the judgment had not been satisfied, and, in July 2008, a court order was entered appointing David Mackle, a certified public accountant, as the custodian of Ace Masonry.

The husband testified that beginning in July 2008 and continuing thereafter the custodian has been in control of Ace Masonry. Pursuant to the July 2008 court order, all money received or spent by Ace Masonry has to go through the custodian; nothing that belonged to Ace Masonry can be sold or disposed of without the custodian's consent.

In October 2011, upon motion of the husband, a court order was entered dissolving Ace Masonry; that order found Ace Masonry insolvent with “liabilities greatly exceeding assets.” Pursuant to that order, the custodian was granted authority to wind up the company's affairs. The husband testified that Ace Masonry had not conducted business after the entry of the dissolution order. A certified copy of the dissolution order was admitted into evidence.

The wife testified about Ace Masonry's assets. The husband testified about Ace Masonry's assets and liabilities, and he introduced into evidence a few balance sheets reflecting Ace Masonry's assets and liabilities. That asset/liability evidence is summarized below:

Date/Year

Assets

Debts

9/30/2007

$1,169,641.51

$924,676.00

9/30/2008

$1,026,601.75

$978,342.22

2/28/2010

$ 451,146.01

$829,854.66

2/28/2011

$ 274,019.21

$860,724.18

The balance sheets also contained an “Equity” section.

The husband testified that the 2007 assets included $857,516.56 in accounts receivable and that the 2008 assets included $738,603.46 in accounts receivable. The husband stated that he did not know whether the custodian had collected all the accounts receivable. The husband testified that one of Ace Masonry's main customers had declared bankruptcy. The husband testified that the Internal Revenue Service (“IRS”) and a bank had liens against Ace Masonry.

According to the husband, in 2010 Ace Masonry performed a job at the...