Cunningham v. Cunningham

• Decision Date: 27 October 2006
• Docket Number: 2050338.
• Citation: 956 So.2d 1157
• Parties: Deborah Diane CUNNINGHAM v. Randy Paul CUNNINGHAM.
• Court: Alabama Court of Civil Appeals

956 So.2d 1157

Deborah Diane CUNNINGHAM v.Randy Paul CUNNINGHAM.

2050338.

Court of Civil Appeals of Alabama.

October 27, 2006.

Mose Lee Sudduth, Jr., Vernon, for appellant.

Dale Lawrence of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellee.

THOMPSON, Judge.

Deborah Diane Cunningham("the wife") appeals from a divorce judgment entered by the Lamar Circuit Court in which the court, among other things, dissolved her marriage to Randy Paul Cunningham("the husband") and divided the parties' marital property.We reverse and remand with instructions.

The parties were married on December 10, 1981.One child was born of the marriage.That child was an adult at the time of the divorce proceedings.On July 2, 2004, after 22 years of marriage, the husband filed a complaint seeking a divorce.The wife answered and filed a counterclaim requesting alimony and other relief; she later amended her counterclaim, alleging that the husband had committed adultery.In their pleadings, both parties alleged that the other had been physically abusive and had destroyed marital property.

The trial court entered an order directing the parties to refrain from harming or threatening each other and to refrain from destroying or disposing of any marital property.On September 16, 2005, the case was heard before the trial court, and that court subsequently entered an order on September 19, 2005, divorcing the parties on the ground of incompatibility of temperament.In its order, the trial court awarded the husband a number of vehicles and equipment used in his business, subject to any indebtedness on those vehicles and equipment; all of his clothing and personal effects; and all of his retirement account containing approximately $30,000.The trial court awarded the wife a 2005 Chevrolet Silverado truck, subject to approximately $23,000 in debt; all of her clothing, jewelry, and personal effects; and all of the parties' household furniture, goods, cookware, and other furnishings.The trial court declined to award alimony, but it reserved the issue for a possible future award.The court did not initially dispose of the parties' real property because it found that the evidence was ambiguous as to what property the parties owned.

On September 20, 2005, the day after entering the first order, the trial court entered an amended order with minor clerical changes.Following the entry of the amended order, the wife filed a purported postjudgment motion in which she requested that the trial court resolve the remaining issues between the parties, including the division of certain real estate.Subsequently, on December 19, 2005, the trial court entered an order entitled "supplemental decree" in which it ordered that the parties' real property be sold and that the proceeds be divided equally between the parties; in that order, the trial court denied all other requested relief.That December 19, 2005, order was a final judgment because it resolved the last of the pending issues and requests for relief between the parties.SeeHill v. Cleveland,929 So.2d 471, 473(Ala.Civ.App.2005)("A final judgment must dispose of all claims or determine the rights or liabilities of all parties.").Later, on January 1, 2006, the trial court entered an order in which it made a minor clarification that is not relevant to the issues on appeal.The wife timely appealed to this court.

The relevant facts adduced at trial are as follows.Both the husband and the wife testified that, after 22 years, their marriage and relationship had deteriorated and irreconcilable differences had developed.The husband and the wife both testified that the other had a drinking problem and that they argued frequently.Both parties testified that the other had been physically abusive on multiple occasions, and the wife testified that physical altercations between the couple had occurred approximately 15 to 20 times throughout the marriage.The husband testified that he had called the police approximately five times to respond to altercations with the wife.On one occasion, the husband was arrested for domestic violence, but the charges were subsequently dropped when he agreed to go to counseling.The husband further testified that the couple had separated in June 2004, had reconciled a few months later, and then had separated again for the final time on April 26, 2005.

The wife testified that the husband was having an affair and that the husband's paramour sometimes answered the telephone when the wife called the home where the husband lived after the separation.The husband testified that, although he had been dating someone after he had separated from the wife for the final time, he had not had a sexual relationship with anyone before the couple had separated for the final time on April 26, 2005.The husband also testified that he had hired his girlfriend to answer the telephone and perform other clerical work for his business.

The husband testified that he operates the lawn-care and tree-service business that both he and the wife had previously operated and that, in the past, he had listed his business in the telephone directory and in other advertisements as being owned by both the husband and the wife.At the time of the trial, both parties were still listed in the telephone directory and on other advertisements as being co-owners of the business.The husband's testimony and the parties' tax returns from 2003 and 2004 established that the business had gross receipts of approximately $116,000 in 2003 and $102,000 in 2004.After expenses, depreciation, and other costs, however, the parties only reported approximately $13,000 in net income in 2003 and approximately $6,000 in net income in 2004.

The wife testified that she has been diagnosed with Klippel-Feil Syndrome and scoliosis, that, as a result, she has been declared permanently and totally disabled, and that she receives as her only source of income a Social Security disability check in the amount of $480 per month.She submitted an exhibit to the trial court indicating that her monthly expenses were approximately $2,060, which included $500 per month for rent, $162.50 per month for utilities, $200 per month for food, $469.51 per month for payments on the indebtedness on the 2005 Chevrolet Silverado truck, $250 per month for medication, $77.50 per month for automobile insurance, $130 per month in automobile expenses, $69.40 per month for life insurance,¹ $100 per month for toiletries and other items marked "essentials," and $100 per month for telephone service.

Both parties testified that the husband has a retirement account, and the husband testified that the account is worth approximately $30,000.This account was created initially in 1977, before the marriage, when the husband began working for Hyster Company.The husband continued to work for Hyster for several years after the parties were married.The parties disputed, however, when the value in the account was accumulated.The husband testified that he accumulated all of the value in the account before the marriage.The wife, however, testified that the husband was laid off and rehired at one point and that, when he was laid off, all of the value in the account was lost.She further testified that all the value presently in the account was contributed after the marriage.

Both parties also gave testimony and submitted documents outlining the value of the property that they own.The parties testified that, with the exception of a few personal items whose total value was estimated by the parties to be less than $500, most of their property had been acquired after the marriage.The husband valued the parties' house and the real property surrounding the house at $45,000, and the wife valued the house and property at $55,000.The wife valued the business property at $151,200, and the husband valued it at $127,600.The parties did not testify as to the present value of the 2005 Chevrolet Silverado truck, but the wife testified that $23,000 remained due on the truck at the time of the trial.The wife estimated a value of $15,250 for the parties' household property, and the husband valued the same property at $6,520.

The wife focuses a great deal of her argument on the refusal of the trial court to divide the husband's retirement account.Alabama provides for the division of retirement accounts between spouses, but only under certain circumstances, as outlined in § 30-2-51(b),Ala.Code 1975, which states:

"(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:

"(1)The parties have been married for a period of 10 years during which the retirement was being accumulated.

"(2)The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.

"(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court."

To determine whether a retirement account should be divided, the general rule regarding property division applies, i.e.,...