Deas v. Deas

• Decision Date: 05 March 1999
• Citation: 747 So.2d 332
• Parties: Trisha Ann DEAS v. Dale Shelton DEAS.
• Court: Alabama Court of Civil Appeals

747 So.2d 332

Trisha Ann DEAS v. Dale Shelton DEAS.

2970927.

Court of Civil Appeals of Alabama.

March 5, 1999.

Rehearing Denied July 16, 1999.

Certiorari Denied October 22, 1999.

Donald C. Partridge of Hess & Atchison, Mobile, for appellant.

Dale S. Deas, appellee, pro se.

Alabama Supreme Court 1981887.

ROBERTSON, Presiding Judge.

On April 25, 1997, Trisha Ann Deas sued her husband, Dale Shelton Deas, for a divorce. Three children had been born of their marriage, and the wife had custody of her two children from an earlier marriage. The parties agreed to joint custody of their children with the wife having primary physical custody, and they proceeded to trial concerning the division of the marital estate.

On May 6, 1998, the trial court entered a judgment that, in pertinent part, divorced the parties, awarded custody of the children to the wife pursuant to the parties' agreement, ordered the father to pay monthly child support of $1,000 and the children's private school tuition,¹ awarded the wife rehabilitative alimony in the amount of $500 per month for a period of 12 months, and awarded the wife a judgment of $2,750 for an attorney fee.

The divorce judgment also awarded the wife the marital residence at 2128 Marchfield (hereinafter the "Marchfield house") and ordered that the wife be responsible for the indebtedness on that residence. The wife was ordered to pay approximately $4,000 in credit card debt. The husband was awarded the marital residence at Brighton Place (hereinafter the "Brighton house"), and was ordered to pay the indebtedness on that residence. The parties were awarded the vehicles that they drove during the marriage, and the wife was also awarded an automobile driven by her daughter. The parties were ordered to be responsible for the debt on the vehicles that they were awarded. The husband was also awarded all of the life insurance policies, which had a cash value of approximately $90,000. After the trial court denied her post-judgment motion, the wife appealed to this court.

The record indicates that the parties met in January 1990 and married in February 1990. At the beginning of their marriage, the husband owned a computer software business and a lot in a residential subdivision. The wife has a GED certificate. Although the wife had been employed at a job paying minimum wage before the parties' marriage, she did not work outside the home thereafter; she took care of the children and the household. Her first pregnancy resulted in twins. A third child was born approximately one year after the twins were born.

The parties lived in an apartment until the wife became pregnant. The parties then purchased the Marchfield house for $184,500. The husband sold a nearby lot in the same subdivision in order to secure part of the payment for the Marchfield house. The parties paid off the mortgage on the Marchfield house within three years. At the time of trial, the husband testified that the value of the Marchfield house was $184,500; the wife valued the house at $175,000.

The parties first began discussing divorce in the spring of 1996. The parties did not separate at that time because the husband was operating his business from the Marchfield home and could not immediately move out of the home. The husband purchased the Brighton house, which is near the Marchfield house, for $275,000. The husband admitted at trial that he had purchased the Brighton house without the wife's knowledge during the time they were contemplating divorce. The parties reconciled, and the husband showed the Brighton house to the wife and children. The family moved into the Brighton house in the summer of 1996 and lived there until the parties separated.

In order to purchase the Brighton house, the husband financed $140,000 through his business, borrowed $90,000 on a signature loan, and borrowed $40,000 from his parents. The title to the Brighton house is in the name of the husband's father. However, the husband signed a note obligating him to repay his father's entire investment in the property. Throughout the trial, the husband vacillated regarding whether he or his father owns the Brighton house. At times, the husband insisted that the house belonged to his father. We note that the parties generally used the house for their common benefit during the marriage and no other entity expressed any ownership interest in the house at the trial; we conclude that the trial judge correctly noted during the trial that the Brighton house was clearly a marital asset.

The parties mortgaged the Marchfield home in order to repay the $90,000 signature loan the husband obtained to purchase the Brighton house. The record does not disclose what portion, if any, of the $140,000 obtained from the husband's business and used to purchase the Brighton home is still owed. The exhibits submitted by the husband that detail the assets and liabilities of the parties do not show that loan as a liability. The husband did list in his exhibits a loan from the business with a balance of approximately $68,000.

The husband drives a 1988 Chevrolet van that he purchased through his business. The wife drives a 1996 Chevrolet Suburban; the payments for that vehicle are $600 per month. The wife also makes payments on a 1987 BMW automobile driven by her daughter from her first marriage. The parties own several life insurance policies. The cash surrender value of those policies is approximately $90,000. At the time of trial, the parties had over $20,000 in credit card and other household debt.

The husband earned approximately $95,000 per year from his business. He testified that his income had decreased and that he had earned only $59,000 in 1997. The husband had not filed income tax returns for his business for the past five years and was three years behind in filing his personal income tax returns. The husband testified that he had spent much of 1997, the year in which he claimed a much lower income than previous years, working on documents for his past-due income tax returns. He testified that spending time "catching up" on his tax returns resulted in his losing much time from work in 1997 and that his business was "off" as a result. The husband owes over $76,000 in back taxes, interest, and penalties.

The wife testified that the husband often was not current in billing his clients. She testified that in 1997, the husband fell behind in invoicing his clients and that, as a result, the family had very little income. The wife testified that she used the child support she receives for her two children from her previous marriage to pay for household expenses. For that reason, an arrearage accrued in the private school tuition for her children from her first marriage. Her previous husband is currently repaying that arrearage in tuition for his two children. In return for his repayment of that debt, the wife receives $500 per month less in child support until that arrearage is repaid. The wife testified that the tuition arrearage would be repaid one year after the trial.

Both the husband and the wife testified that before they separated in May 1997, they had fought about finances, the ownership of the Brighton house, and the husband's purchase of that house, among other things. Neither party made any attempt to shield their children from these arguments. The children have witnessed the parties calling each other names and have witnessed an incident in which the husband pushed the wife down and choked her. Although the couple initially attended marriage counseling before their last separation, the husband stopped attending the counseling sessions.

The husband testified that the parties' marital problems were the result of the wife's temper and her poor financial management. The wife testified that the husband was verbally and physically abusive; she stated that he stood on her feet to prevent her from leaving when they were arguing.

On appeal, the wife argues (1) that the trial court erred in its division of property and award of alimony, (2) that the trial court erred in allowing the father a credit against his child support obligation for private school tuition, and (3) that the trial court erred in its award of what she says is an "insufficient" attorney fee.

I. Property Division and Alimony Award

A trial court's determination as to alimony and the division of property following a presentation of the evidence ore tenus is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App. 1993). On appeal, issues of alimony and property division must be considered together, and the trial court's judgment will not be disturbed, absent a finding that it is unsupported by the evidence so as to amount to an abuse of discretion. Id. Some factors that the trial court should consider in dividing marital property and in setting alimony payments include "(1) the earning ability of the parties; (2) their probable future prospects; (3) their age,... health and station in life; (4) the duration of the marriage; and (5) the conduct of the parties with reference to the cause of divorce." Echols v. Echols, 459 So.2d 910, 911-12 (Ala.Civ.App.1984). The division of property in a divorce proceeding need not be equal, but it must be equitable. Isham v. Isham, 464 So.2d 109 (Ala. Civ.App.1985).

Under the facts of this case, we conclude that the trial court abused its discretion in fashioning its property division and alimony award. The parties were married for eight years and have three small children. The wife did not work outside the home during the parties' marriage. At the time of trial, the wife was employed part-time earning $6.00 per hour. In addition, the wife cleans 2 to 3 houses per week for $40 each. The wife has a GED but very little job experience. She testified that she could obtain a job earning minimum wage. The husband has two college degrees and owns his own business, from which he earns approximately $95,000 per year.

The trial judge awarded...