Clements v. Clements

• Decision Date: 31 August 2007
• Docket Number: 2060044.
• Citation: 990 So.2d 383
• Parties: Larry J. CLEMENTS, Jr. v. Richie N. CLEMENTS.
• Court: Alabama Court of Civil Appeals

990 So.2d 383

Larry J. CLEMENTS, Jr. v. Richie N. CLEMENTS.

2060044.

Court of Civil Appeals of Alabama.

August 31, 2007.

Rehearing Denied October 19, 2007.

Certiorari Denied March 14, 2008 Alabama Supreme Court 1070238.

Mari Morrison, Birmingham, for appellant.

Gerard J. Durward and G. John Durward, Jr., of Durward & Cromer, Birmingham, for appellee.

THOMAS, Judge.

After 23 years of marriage, Larry J. Clements ("the husband") and Richie N. Clements ("the wife") were divorced on August 3, 2006. The parties had two children, ages 17 and 6 at the time of trial in this matter. After an ore tenus proceeding, the trial court entered a judgment divorcing the parties, awarding custody of the children to the wife, granting the husband visitation with the children, and requiring the husband to pay $1,473 per month in child support.¹ Additionally, the husband was ordered to pay for the children's medical insurance and for the children's noncovered medical expenses.

Regarding alimony and the division of the parties' marital property, the court ordered as follows: (1) the husband was required to pay the wife $1,500 per month as periodic alimony and the sum of $200,000 as alimony in gross, which was to be paid in installments of $700 per month; (2) title to the parties' Nissan Pathfinder automobile was vested in the wife for the benefit of the parties' 17-year-old son, but the husband was ordered to make any payments of indebtedness on the automobile and to maintain insurance on the automobile until it was paid in full; (3) the wife was awarded the parties' 2003 model year GMC Yukon sport-utility vehicle and the parties' 2005 model year Mini Cooper automobile; (4) the husband was awarded the parties' 1991 model year Volvo automobile; (5) the husband was ordered to be responsible for all the parties' debt incurred during the marriage except for the debt associated with the parties' Target Visa account, which the court determined to be the wife's responsibility; (6) the marital residence was awarded to the wife, and she was ordered to be responsible for the first mortgage on the house and the husband was ordered to be responsible for the second mortgage on the house; and (7) the husband was awarded his business and its assets and liabilities.

Regarding items of personal property, the court's order awarded each party the respective items of personal property in their possession, which implicitly included each party's retirement accounts. However, several items of personal property, including tools and a bicycle, were awarded to the husband, and the husband's firearms were specifically awarded to the wife.

The court additionally ordered the husband to maintain his life-insurance policy and to keep the wife as the named beneficiary, awarded the wife her life-insurance policy, and ordered the husband to pay the wife's attorney fees in the amount of $15,000.

Finally, the court determined that the husband was in contempt for failing to pay the proper amount of alimony and automobile payments on the Mini Cooper automobile, which he had been ordered to pay pursuant to a pendente lite order. The court held that the husband owed $11,580 in alimony through March 2006 and $1,695 for automobile payments on the Mini Cooper automobile.

The husband appeals, raising six issues. The husband claims that the trial court: (1) inequitably distributed the parties' marital assets and liabilities; (2) erred in attributing $9,000 in monthly gross income to the husband; (3) erred in its child-support calculation; (4) erred by failing to enter a final judgment distributing all the parties' marital property; (5) erred in asserting jurisdiction to award certain property; and (6) erred in finding the husband in contempt.

Undisputed Evidence

The undisputed evidence at trial was as follows. The wife was approximately 41 years old at the time of the trial and had a high school diploma. She had attended beautician school after high school, but during the marriage she mostly worked in clerical positions. The husband was 41 years-old at the time of the trial and is an automobile mechanic who, for most of the marriage, worked for Crown Automobile. He worked at Crown Automobile for 17 years. However, in 2001, the husband began his own automobile-mechanic business called The Mercedes Doctor, Inc. ("the business"), a corporation in which the husband owned all the shares of stock. Eventually, in 2002, the husband left Crown Automobile to work full-time in his own business.

The wife also worked in a clerical and administrative position at The Mercedes Doctor, helping the husband to start the business. She handled the finances and inventory of the business, and she ran the office while the husband and his hired mechanics worked in the repair shop. By the time the divorce action was initiated, there were two additional female employees working in the office with the wife and one mechanic working in the repair shop with the husband. Even though the wife was listed as the vice-president of the corporation, she owned no stock and did not receive a paycheck for her work.

The parties' marital property included a house that was purchased for $146,000 and that is still subject to a first and second mortgage. The parties also purchased a building for the business that cost $148,000 and is also subject to a mortgage. The business checking account, according to the testimony at trial, had approximately $20,000 in available funds.

Additionally, the husband had a 401(k) retirement account from his employment at Crown Automobile that was worth, shortly after the wife filed for divorce in June 2005, approximately $50,000,² and the wife had a 401(k) retirement account with a previous employer that was worth approximately $4,500.

The evidence indicated that the business had a gross profit of approximately $120,000 per year. The 2003 GMC Yukon sport-utility vehicle had been purchased with funds from the business and title had been placed in the husband's name.

Disputed Evidence

At trial, the parties disputed the value of the marital property. The wife estimated the marital residence to be worth $225,000, subject to a first mortgage of approximately $70,000 and a second mortgage of approximately $39,400. The husband testified that he thought the balance remaining on the first mortgage was approximately $60,000. The wife also claimed that the value of the building used for the husband's business was $300,000,³ subject to a mortgage of approximately $128,000, while the husband valued the business building at approximately $160,000, subject to a mortgage of $125,000.⁴

The wife valued the business inventory, using an inventory list that she had printed out when she left the business after the parties separated, at a wholesale value of approximately $671,513 and at a retail value of $900,914. The wife also claimed that, at the time she left the business, the husband had over $52,000 in a safe located at the business.

The husband claimed that the wholesale value of the business inventory was much less than $600,000 and that the inventory at a place like Crown Automobile was only $1.1 million.⁵ Rebecca Poe, an employee of the business who is in charge of inventory and accounting for the business, testified that she had performed an inventory update after the wife had left the business and that there were multiple mistakes in the inventory spreadsheet and that her new calculations for inventory were much lower than the wife's submitted inventory calculations. Poe testified regarding the inventory spreadsheet, printed just before Poe conducted the updated inventory analysis, that showed a wholesale value of the business inventory at $426,148.74. After conducting her own inventory check, Poe testified that the updated inventory spreadsheet, dated November 23, 2005, showed an inventory with a wholesale value of approximately $103,241.47 — over $300,000 less than the previous inventory records reflected.

The husband also testified that the safe at his business did not contain, and never had contained, $52,000, as claimed by the wife. Rather, he claimed that it never contained more than $10,000 and that, at the time of trial, it contained only about $1,000.

The wife testified that the husband drew a net income from the business of $2,600 per month, but the wife testified that he also gave her an additional $2,500 to $3,500 per month for various family expenses, plus additional money if she needed it. Further, the wife claimed that credit-card payments, automobile payments, and automobile-insurance payments for the parties' personal and business use were always paid out of the husband's business account. She testified that the business account was used many times to pay for meals, vacations, and other personal expenses.

The husband denied giving the wife additional payments outside the paychecks he received; he claimed that the business account was used to pay for business expenses only. According to the husband's tax returns for 2003, 2004, and 2005, he earned an average of approximately $45,600 annually from the business. However, a financial statement the husband signed in connection with a business-loan application from Union State Bank in 2003 showed that he claimed an income of $102,000.

Dennis Cameron, the accountant for the business and a certified public accountant, testified that he prepared the year-end statements and taxes for the business. He testified that he received copies of all checks, receipts, and bank statements necessary to prepare the year-end statements and taxes, and that he primarily dealt with the wife while the parties were married. Cameron also testified that, on occasion, personal debts paid from the business account were shifted to show income to the husband. Cameron testified that he did not, however, have access to credit-card bills and checks that had not been processed through the business account.

The wife presented evidence at trial...