Brasili v. Brasili

• Decision Date: 15 February 2002
• Citation: 827 So.2d 813
• Parties: Sean Anthony BRASILI v. Melinda Lilly BRASILI.
• Court: Alabama Court of Civil Appeals

827 So.2d 813

Sean Anthony BRASILI v.Melinda Lilly BRASILI.

2000447.

Court of Civil Appeals of Alabama.

February 15, 2002.

Mark B. Craig of Craig & Craig, P.C., Decatur, for appellant.

Jerry Knight, Decatur, for appellee.

MURDOCK, Judge.

After an ore tenus proceeding, the Morgan Circuit Court entered a judgment divorcing Melinda Lilly Brasili, the wife, and Sean Anthony Brasili, the husband, on the basis of the husband's adulterous conduct.The divorce judgment contained a property division awarding the wife, among other things, $30,000 from the husband's deferred-compensation account,¹ a van (as to the indebtedness on which the wife was directed to make monthly payments beginning July 2001 in the amount of $299.51), and an award of rehabilitative alimony.With respect to the alimony, the trial court ordered that from November 2000 through June 2001, the husband was to pay the wife rehabilitative alimony in the amount of $200 per month and was to retain health insurance on the wife (thought to cost $290 a month); commencing July 2001 and continuing thereafter for 36 months, the husband was ordered to pay the wife rehabilitative alimony in the amount of $1,500 per month.²The husband was awarded, among other things, the marital home, which at the time of the divorce had been for sale for two months and which was encumbered by two mortgages totaling approximately $142,288.71.³The husband was required to pay $14,760.78 of marital debt.⁴The wife was granted custody of the parties' three minor children, and the husband was ordered to pay child support of $1,526 per month in accordance with the child-support guidelines set forth in Rule 32 of the Alabama Rules of Judicial Administration.

At trial (in November 2000), the husband was 32 years of age, and the wife was 29 years of age.The parties met in Mobile during the wife's senior year at the University of South Alabama.The parties married on August 21, 1993, after the wife had graduated, and they lived initially in Augusta, Georgia.At the time of the parties' marriage, the husband was employed by Nycomed Amersham Imaging ("Nycomed Amersham"), a medical-contrast media company, as a salesman.Although the wife held a college degree in leisure services, tourism, and commercial recreation, she worked only briefly during the marriage (approximately one year) as a salesclerk earning $7 to $8 per hour.At some point between 1996 and 1998, the parties moved to Decatur.Three children were born of the marriage: a daughter born in 1995; a son born in 1997; and another daughter born in February 1999.

The parties separated in January 2000.At that time, the husband moved into an apartment in Madison; in June 2000, he moved to Michigan after accepting a promotion to area sales director.The wife and the children remained in the marital home until July 2000, at which time they moved into the wife's mother's house in Florence.During the pendency of the divorce, the husband, realizing continued employment in Michigan would result in his spending less time with the children, decided to move closer to where the children lived.The husband accepted a job with Boston Scientific, a medical-supply company, as a catheter salesman, and he was to begin that job the week following the trial in this case.That job was to be based in Nashville, Tennessee, and the husband was planning to live at his parents' home until he could afford to move into an apartment.The husband's sales territory extended south to Florence, and his work schedule would enable him to spend one afternoon each week with the children and to have the children visit him every other weekend in Nashville.When asked about the move at the trial, the wife expressed approval.

The husband's gross wages for the years he worked as a salesman with Nycomed Amersham were as follows: 1993-$45,364.34; 1994-$54,838.13; 1995-$48,958.56; 1996-$48,596.47; 1997-$53,373.38; 1998-$73,520.75; and 1999-$69,067.97.When the husband was promoted to area sales director, he received an $8,000 annual raise, resulting in an annual salary of $76,000.It was anticipated, but not guaranteed, that he would receive approximately $15,000 in annual bonuses in that job; in fact, he received $18,000 in bonuses in 2000.

The husband's compensation with Boston Scientific was to be as follows: during the month of November 2000, the husband would receive $3,538.48 (which included base pay in the amount of $1,538.48 plus a training bonus in the amount of $2,000); during the month of December 2000, the husband would receive $6,615.38 (which included base pay in the amount of $4,615.40 plus a training bonus in the amount of $2,000); beginning January 2001, the husband would receive $1,538.46 every two weeks in gross income, plus monthly commissions.He testified that he expected to earn monthly commissions in the amount of $3,000 to $3,500 per month, for a total annual salary of approximately $80,000 to $82,000.Therefore, the husband's gross income would amount to approximately $6,833 per month, and the husband estimated he would have a net monthly income of approximately $4,200.

Both parties offered testimony regarding their monthly living expenses.The husband testified that his monthly living expenses totaled $1,726.71 (without consideration of the mortgage payments⁵ and marital debt).His monthly budget consisted of the following: apartment rent in the amount of $800; renter's insurance in the amount of $40; company car expenses in the amount of $150; utilities (electric, gas, water, trash, cable, telephone) totaling $210; groceries in the amount of $320; medical insurance (covering himself and the children) in the amount of $106.71; and visitation expenses (travel and food) in the amount of $100.His monthly budget did not include any amount for clothing, either for himself or the children; gifts for the children; haircuts; dry cleaning; recreation; or medical co-payments.

The wife testified that her monthly living expenses totaled $3,060.Her monthly budget consisted of the following: a house payment in the amount of $800; a car payment in the amount of $300; groceries in the amount of $500; gasoline in the amount of $80; insurance expense in the amount of $76; utilities (telephone, cable, and other utilities) totaling $257; cellular telephone expense in the amount of $25; church contributions in the amount of $40; church school expenses for the children in the amount of $290; school lunches for the children in the amount of $60; activities for the children in the amount of $105; clothing expenses for herself and the children in the amount of $300; haircuts and other miscellaneous expenses (including car and house maintenance, etc.) in the amount of $100; and entertainment expense (including general entertainment, vacation, birthdays, and Christmas) in the amount of $127.The wife testified that she was not aware of any jobs in the Florence area related to her collegiate course of study.Although the wife testified that she looked at the job advertisements in the newspaper each day, she admitted that she had not "actively" sought employment.The wife testified that she desired to return to school to obtain a teaching certificate, and she testified that in her opinion a career as a teacher would mesh nicely with her duties as a single mother.The wife testified that she intended to begin college in the fall of 2001, and that it would take her approximately two and one-half years to earn a teaching certificate.

The husband testified that he began contributing to an employer-matched retirement account with Nycomed Amersham in January 1993 and that he had continued to do so during the parties' marriage.Income tax on the contributions to that account was deferred pursuant to 26 U.S.C. § 401(k)(the account is one designated as a "401(k) account").The husband testified that he contributed 8% of his income to the 401(k) account and that the employer's contribution rate changed over time, but that it had averaged approximately 4% of his income.At the time of trial, the husband estimated the 401(k) account to be worth approximately $72,000.

The husband testified that the 401(k) plan administrator permitted hardship withdrawals, but that such withdrawals were subject to a penalty prohibiting contributions for one year.The husband testified that he could borrow money from the 401(k) account and stated that he had borrowed $6,000 in the past to pay off some of the parties' debt; the 401(k) loan had been paid in full at the time of trial.After examining the proposed budgets of both parties, the husband testified that he would prefer to take out an installment note in lieu of borrowing additional funds from the 401(k) account.He further testified that any withdrawals from the 401(k) account, before its maturity, would be subject to tax penalties.

At the conclusion of the trial, the trial judge indicated that he would render a judgment divorcing the parties on the ground of adultery.The trial court subsequently divorced the parties on the ground of adultery "as alleged and proved."The judgment stated that the basis for the divorce was "[t]he [husband's] adultery as alleged in the complaint filed herein and as was shown by the evidence."The husband filed a postjudgment motion to vacate the judgment; that motion was denied by the trial court.

On appeal, the husband contends that the trial court erred in awarding the wife $30,000 out of his 401(k) account because, he says, under § 30-2-51(b)(1),Ala.Code 1975, the trial court had no authority to make such an award in light of the fact that the parties had not been married for 10 years.The husband also argues that the trial court erred in determining the amount of the rehabilitative-alimony award; specifically, he argues that the amount he was ordered to pay as rehabilitative alimony beginning July 2001($1,500 per month) will financially cripple him.Finally, the husband argues that the...