Capone v. Capone

• Decision Date: 03 November 2006
• Docket Number: 2050212.
• Citation: Capone v. Capone, 962 So.2d 835 (Ala. Civ. App. 2006)
• Court: Alabama Court of Civil Appeals
• Parties: John S. CAPONE, Jr. v. Beverly A. CAPONE.

962 So.2d 835

John S. CAPONE, Jr. v.Beverly A. CAPONE.

2050212.

Court of Civil Appeals of Alabama.

November 3, 2006.

Rehearing Denied January 5, 2007.

Certiorari Denied March 9, 2007 Alabama Supreme Court 1060579.

Sara C. Semmes of Legal Clinic of Semmes & Semmes, P.C., Anniston, for appellant.

Sheila C. Field of Field & Field, L.L.C., Anniston, for appellee.

CRAWLEY, Presiding Judge.

John S. Capone, Jr.("the husband"), and Beverly A. Capone("the wife") were married in April 1984.In late December 2004, the parties separated and the husband sued the wife for a divorce; the wife counterclaimed for a divorce, alleging that the husband had committed adultery.After a trial, the trial court entered a judgment divorcing the parties on the grounds of adultery, incompatibility of temperament, and irretrievable breakdown of the marriage.

The divorce judgment awarded the husband his 2004 Ford F150 pickup truck, his 1969 Chevrolet Chevelle automobile, and a 2004Harley Heritage motorcycle; the husband was also required to be responsible for any debt associated with the vehicles.The wife was awarded her 2004 Buick Ranier sport-utility vehicle; she, too, was required to be responsible for any debt associated with that vehicle.The trial court also awarded each party one-half of the certificates of deposit ("CDs"), savings accounts, or other accounts acquired during the marriage; one-half, or, specifically, 5.5 million, of the 11 million Iraqi dinars acquired by the husband during a military assignment in Iraq; and one-half, or, specifically, $8,500, of a $17,000 cashier's check in the husband's possession at the time of trial.The judgment further awarded the wife an approximately five-acre parcel of real property acquired by the parties during the marriage, subject to the indebtedness thereon.Each party was awarded one of the two burial plots purchased by the parties during the marriage.

The judgment also required the husband to pay the wife alimony in the amount of $2,500 per month and awarded the wife 25% of the husband's military-retirement benefits upon his receipt of those benefits.The judgment states that the $2,500-per-month alimony payment will be reduced by the monthly retirement-benefit payment, once the wife begins receiving that payment.The judgment further required the husband to name the wife as the beneficiary of his retirement survivor benefit plan.Finally, the trial court required the husband to name the wife as the irrevocable beneficiary of his existing servicemember's life-insurance policy until such time as she dies, remarries, or cohabits with another person; the judgment also prohibited the husband from borrowing against, pledging, or otherwise encumbering the value of that life-insurance policy.

The husband, who was 49 years old at the time of trial, is employed by the United States Army; his rank is sergeant major.His monthly income at the time of trial was $6,755.At the time of trial, the husband had 24 years of active service and 6 years of reserve service in the Army.He testified that he had no vested retirement benefits and that, if he died the following day, he would have no retirement survivor benefits.When cross-examined by the wife's counsel, the husband testified that he was eligible to retire because of his length of service and that, if he were to retire at the time of trial, he would receive $3,924 per month in retirement benefits.In addition, the husband agreed that the table that the wife's counsel showed him indicated that, if he were to retire in 20 years, he would receive $7,543 per month in retirement benefits.The husband, noted, however, that the Army was not likely to allow him to retire in the near future in light of the need for servicemembers to serve in Iraq.

The husband testified that he was given the 11 million Iraqi dinars as a gift from a Kuwaiti gentleman with whom he had worked while stationed in Iraq.He said that he was also given a Rolex brand watch as a gift from the company for which this Kuwaiti gentleman worked.The wife, however, testified that the husband had asked her if he could buy the dinars as an investment.

The wife, who was 48 years old at the time of trial, was unemployed.According to the husband, she had worked, at times during the marriage, as a bank teller and as a realtor.She suffers from chronic headaches, fatigue, and fibromyalgia.Although she applied for disability benefits in 1996, she was determined not to be disabled.

The wife testified that the husband had had an affair with J.T., a mutual friend of the couple's and a coworker of the husband.According to the wife, J.T. and the husband would speak to each other regularly on the telephone and J.T. and the husband both lied to her about going on a temporary-duty assignment ("TDY") to Texas in November 2004.The wife said that she drove the husband to the Atlanta airport on November 13, 2004, and that he told her that he would be going to a TDY in Texas for a week.She also said that he told her that J.T. would also be on a TDY in Texas that week, but that she was taking a different flight.The wife further reported that the husband called her when his flight arrived and each day that week, reporting how hot it was and what activities he was engaging in.In addition, the wife stated that J.T. also called her during that week, likewise describing the TDY activities and how hot it was.She said that she believed that the husband and J.T. concocted the Texas TDY story as an elaborate scheme to cover up the husband's affair with J.T.

The wife also photographed the husband and his father's truck, which the husband was using, outside J.T.'s apartment on January 1, 2005.According to the wife, she arrived around 8:00 in the morning, central time, and that she watched J.T.'s apartment for approximately five hours.She said that she saw the husband go in and out of the apartment and load and unload boxes from J.T.'s vehicle; she also said that the husband left once and returned approximately 15 minutes later.The wife said that she later telephoned the husband on his cellular telephone and asked him what he was doing that day; according to the wife, the husband lied to her and told her he was with his father looking at old cars.

The husband denied having an affair with J.T., stating that they were friends.He said that he and J.T. had both attended a TDY in Texas in August, not November.He denied telling the wife that he was going to Texas in November because, he said, he attended a school in Stockbridge, Georgia, that week in November and, he testified, he had told his wife this.He also admitted staying at J.T.'s apartment on certain nights after the parties' separation; however, he stated that he had always stayed in J.T.'s guest room.

The husband appeals the trial court's judgment, seeking reversal on several grounds.He first argues that the trial court's finding that he committed adultery is not supported by the evidence.He further argues that the trial court's award of alimony to the wife and the division of property were inequitable.Further, he complains that the trial court's award to the wife of 25% of his military-retirement benefits and the requirement that he make the wife the beneficiary of his military survivor benefit plan violate Ala.Code 1975, § 30-2-51(b).Finally, he complains that the trial court improperly ordered that he make the wife the irrevocable beneficiary of his servicemember's life-insurance policy.

The husband first argues that the wife failed to present sufficient evidence from which the trial court could have found that he had committed adultery with J.T.

"`While it is difficult and somewhat rare to prove adultery by direct means, the charge of adultery in a divorce case may be proven by circumstantial evidence which creates more than a mere suspicion.'Billington v. Billington,531 So.2d 924, 924(Ala.Civ.App.1988).Proof to support the charge of adultery `must be sufficiently strong to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.'Boldon v. Boldon,354 So.2d 275, 276(Ala.Civ.App.1978)."

Fowler v. Fowler,636 So.2d 433, 435(Ala. Civ.App.1994);see alsoLangley v. Langley,617 So.2d 678, 679(Ala.Civ.App.1992);andHooker v. Hooker,593 So.2d 1023, 1025(Ala.Civ.App.1991).The husband complains that the only evidence of adultery that the wife presented was her suspicion of an affair and the fact that the husband had visited and stayed at J.T.'s apartment at times after the parties' separation.

The evidence of adultery adduced in Fowler consisted of the fact of the numerous telephone calls between the husband and a female coworker, some at very late hours and from public telephones, the fact that the husband and the coworker associated outside the office, the fact that the parties' marriage counselor considered the relationship between the husband and the coworker inappropriate, and the fact that the husband had rejected the wife during the period in which the telephone calls between the husband and the coworker had occurred.Fowler,636 So.2d at 435.Those facts, while sufficient to create a suspicion of adultery, were not sufficient to "`lead ... to the conclusion of adultery as a necessary inference.'"Id. at 436(quotingBoldon,354 So.2d at 276).Likewise, the evidence in Hooker, which consisted of late-night telephone calls and the alleged paramour's taking a job in the area and renting a room in the same building as the husband, was insufficient to create more than a suspicion of adultery.Hooker,593 So.2d at 1025-26.

Our supreme court has also had occasion to consider what degree of circumstantial evidence would "lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference."Maddox v. Maddox,281 Ala. 209, 212, 201 So.2d 47, 49(1967).In Maddox, the husband presented the testimony of Jack...