Carnes v. Carnes

• Decision Date: 07 October 2011
• Docket Number: 2100567.
• Citation: 82 So.3d 704
• Parties: James CARNES v. Mary Elizabeth CARNES.
• Court: Alabama Court of Civil Appeals

82 So.3d 704

James CARNES

v.Mary Elizabeth CARNES.

2100567.

Court of Civil Appeals of Alabama.

Oct. 7, 2011.

Letta Dillard Gorman, Hartford, for appellant.

M. Lionel Leathers of Leathers Law Firm, Winfield, for appellee.

BRYAN, Judge.

James Carnes (“the husband”) appeals from a judgment entered by the Fayette Circuit Court (“the trial court”) that divorced him from Mary Elizabeth Carnes (“the wife”) insofar as it entered a permanent restraining order against him, divided the parties' property and debts, and refused to find the wife guilty of contempt.

The wife filed a complaint for a divorce on May 23, 2008. In her complaint, the wife alleged that the parties were married on June 24, 2006, and that no children were born of their marriage. The wife further alleged that the husband had assaulted the wife on May 13, 2008, that she had subsequently obtained a protection-from-abuse order against the husband, and that the husband had criminal charges pending against him in Fayette County. On the same day, the trial court entered an order that allowed the wife to maintain temporary use and possession of the marital residence, a 2004 Chevrolet truck, a four-wheeler, a garden disk, a lawn mower, a utility trailer, furniture, two dogs, and her personal items; the husband was allowed to maintain temporary use and possession of a 1996 Dodge truck, a 1989 Chevrolet truck, a fishing boat, a ski boat, and his personal items.

On August 6, 2008, an attorney for the husband filed a notice of appearance on behalf of the husband. The next filing that appears in the record on appeal is a motion to withdraw filed by the husband's attorney on January 12, 2010. A second attorney filed a notice of appearance on behalf of the husband on April 29, 2010, and the husband contemporaneously filed an answer to the wife's complaint for a divorce. On July 30, 2010, the husband filed a motion for pendente lite relief, requesting that the trial court enter an order requiring the wife to preserve the personal property “of this action” until the trial court could equitably distribute the property. In his motion, the husband included a list of approximately 53 items of personal property, including the four-wheeler referenced in the May 2008 pendente lite order. On August 17, 2010, the trial court entered an order that prohibited both parties from liquidating, wasting, or otherwise converting any and all personal and marital property listed in the husband's motion for pendente lite relief.

On September 21, 2010, the husband filed a motion seeking to hold the wife in contempt because, he alleged, she had sold the four-wheeler in violation of the trial court's August 17, 2010, pendente lite order.

The trial court conducted an ore tenus hearing on November 18, 2010. At that hearing, the wife testified that she had separated from the husband on May 13, 2008, after the husband was arrested for domestic violence. According to the wife, on the night of May 13, 2008, the husband had beaten her and had tried to break her neck. The wife also alleged that, when she got in her truck in an attempt to get away from the husband, the husband “shot [her] truck up and shot [her] tires out” while she was in the truck. The wife testified that the husband was arrested that night and that she filed for and was granted an ex parte protection-from-abuse order the following day. According to the evidence submitted during the ore tenus hearing, the Fayette District Court (“the district court”) subsequently held a hearing on the wife's petition for protection from abuse and entered a protection-from-abuse order on behalf of the wife and against the husband on May 27, 2008, in case no. DR–08–56. That protection-from-abuse order indicated that it was “permanent” and was intended to be effective until the entry of additional orders of the district court.

The husband stated that, on the night of May 13, 2008, he and the wife had been arguing and that, out of frustration, he had thrown an ashtray through the glass door of his gun cabinet. He stated that he and the wife were calmly picking up the glass and that he put his hands around the wife's throat and told her to “stop this ... I could break your neck.” The husband stated that the wife then gave him a black eye and that, when he tried to restrain her, she bit him. The wife admitted that she had bitten the husband on the leg when he was holding her down. The husband stated that, when he went to the restroom, the wife went outside and got in her truck. The husband went outside after the wife, and, according to the husband, the wife started driving the truck toward the husband. The husband stated that he feared for his life and that, therefore, he shot the tires out of the wife's truck with a pistol that he had retrieved from his nightstand while he was inside the parties' house. The husband stated that two sheriffs came to his house and arrested him, and he spent three days in jail.

After the husband was released from jail, the husband's brother and sister went to the parties' house and picked up some of his clothing and one of his trucks. The husband stated that he did not go back to the parties' residence because the protection-from-abuse order prohibited him from doing so.

The wife stated that she had “eventually” called the husband, sent him text messages, and met him in person. The wife stated that she and the husband had attempted to reconcile and that, at the request of the husband, she had sent the district attorney a letter on January 31, 2010, stating that she wanted all criminal charges pending against the husband to be dropped. The husband admitted that he had asked the wife to drop the criminal charges pending against him. According to the wife, the criminal charges pending against the husband had been dismissed. However, the parties' attempts at reconciliation failed, and the wife filed a second petition for protection from abuse on November 10, 2010, in case no. DR–10–157, approximately one week before the ore tenus hearing in the parties' divorce proceeding. The wife submitted telephone records indicating that the husband had contacted the wife through telephone calls and text messages throughout the summer of 2010. The wife requested that the trial court enter a permanent restraining order against the husband.

According to the husband, the protection-from-abuse order was “cleared up” the week before trial. However, it is unclear from the record whether the husband was referring to the protection-from-abuse order that had been in effect since May 14, 2008, in case no. DR–08–56 or the petition for protection from abuse that was filed by the wife in case no. DR–10–157 on or about November 10, 2010, which was the week before trial.

The wife stated that, in September 2008, she moved out of the residence that the parties had been renting at the time of their separation, and, when she did so, she sent the husband a letter informing him that she was moving and that he needed to make arrangements to pick up his belongings, including a “fishing boat and equipment, a ski boat, and a 1989 Z71 truck.” In the letter, the wife gave the husband 15 days to retrieve his belongings, and she stated that she would make arrangements to dispose of the property that he did not retrieve. The wife stated that the husband's former wife, the husband's former wife's husband, and the husband's children came to her house to pick up the husband's property in September 2008. The wife indicated that she and her family had put the husband's belongings, such as a deer head and the husband's hunting and fishing gear, in the husband's truck and in the husband's boat and trailer. However, the husband's former wife testified that the boats and the vehicle that she picked up had only a few of the husband's belongings in them.

The wife stated that she had been storing some of the parties' belongings in a storage unit since the time that she moved out of the parties' rented marital residence. The wife stated that she had offered to allow the husband to retrieve his property from the storage unit. The husband refused to do so, however, because of the protection-from-abuse order. The wife stated that she had thrown away a couch that the parties owned because the husband had burned a hole in the couch on the night that the husband was arrested and that she had thrown away a fire pit that was no longer in working condition.

The wife stated that, after the parties separated, she had possession of a four-wheeler that the parties had purchased in November 2006 for $6,000. The wife testified that she had used $4,300 from her separate checking account to purchase the four-wheeler and that the husband had contributed the remaining $1,700 toward the purchase price. The wife stated that she sold the four-wheeler to her sister for $2,300 in June 2008. The husband stated that he had purchased the four-wheeler in November 2006 for $5,600. The record indicates that the bill of sale for the four-wheeler stated that the husband was the buyer of the four-wheeler and that the wife was the witness to the purchase. However, the bill of sale was not introduced or admitted into the record. The husband alleged that the wife had not really sold the four-wheeler to her sister, and he produced pictures of the wife riding the four-wheeler with her daughter and her niece in July 2010. The wife submitted into evidence a bill of sale that indicated that she had sold the four-wheeler to her sister on June 15, 2008.

In 2006, before the parties were married, the wife purchased a 2004 Chevrolet truck. According to the wife, she and the husband had purchased the truck together with the intention that it would be the husband's truck; however, she stated that the truck “wound up” being her truck. The wife admitted that her name was on the title to the truck, and the evidence produced by the wife indicated that the debt on the truck was in her name only. At some time...