Diggs v. Diggs
| Decision Date | 30 May 2008 |
| Docket Number | 2061094. |
| Citation | 996 So.2d 203 |
| Parties | John Deiter DIGGS v. Tina M. DIGGS. |
| Court | Alabama Court of Civil Appeals |
Robert H. Brogden, Ozark, for appellant.
Douglas M. Bates, Dothan, for appellant.
John Deiter Diggs ("the husband") appeals a divorce judgment entered by the Dale Circuit Court insofar as it awarded Tina M. Diggs ("the wife") periodic alimony and an attorney's fee.
The husband sued the wife for a divorce on the grounds of adultery, incompatibility, and an irretrievable breakdown of the marriage. The wife answered and counterclaimed for a divorce on the grounds of incompatibility and an irretrievable breakdown of the marriage. In her answer, the wife admitted that she committed adultery; however, the wife alleged that the husband had condoned the adultery.
On March 21, 2007, the trial court held a hearing at which it received evidence ore tenus. The trial court then entered a judgment on March 28, 2007, that awarded the wife, among other things, periodic alimony in the amount of $2,000 per month for a period of 36 months and an attorney's fee in the amount of $2,000.
On April 20, 2007, the husband moved the trial court for a new trial pursuant to Rule 59, Ala. R. Civ. P. On June 25, 2007, the husband filed an amended motion for a new trial alleging, in pertinent part, that he had lost the job that had been his primary source of income. After holding a hearing, the trial court, on July 27, 2007, entered an order that purported to grant the husband's motion for a new trial—as to the issue of alimony—on the ground that the husband had introduced new evidence regarding his health and income. However, on August 13, 2007, the trial court entered an order stating as follows: "As [the husband's] motion for new trial has been denied by operation of law, hearing on order granting said motion is set aside."1 The husband then timely appealed.
On appeal, the husband argues that the trial court exceeded its discretion in awarding the wife periodic alimony in the amount of $2,000 per month for 36 months and that the division of the parties' property was unfair and inequitable. Specifically, the husband argues that, because he lost his primary source of income subsequent to the entry of the divorce judgment, he cannot afford to pay $2,000 per month in periodic alimony. Additionally, the husband argues that the trial court's periodic-alimony award constituted an abuse of discretion because "[t]he wife presented no evidence of her living expenses other than a generalized statement saying that she needed $2,500.00 per month to maintain her style of living."
The parties began cohabiting in 1993 and were married in 1998. Both the husband and the wife testified that they separated several times during the marriage. The husband testified that they were separated for "a year or two at the time"; however, the wife testified that they did not remain separated for more than "4 or 5 months at any given time." The wife has two children, neither of whom were born of her marriage to the husband. The wife has a son, born in 1989, from a prior marriage.2 The wife also has a son, born in 2005, from an extramarital relationship with another man ("the paramour"). The husband has two children from a prior marriage, both of whom were of the age of majority at the time of trial.
The husband was 62 years old at the time of trial. The evidence shows that the husband suffers from high blood pressure. The husband has both a bachelor of science degree and a master of science degree in biological sciences and a doctorate degree in veterinary medicine. At the time of trial, the husband, who served in the United States Army for 12 years, had been employed as a flight instructor at Fort Rucker for 21 years. The husband also owns a veterinary clinic at which he works in the afternoons as a veterinarian. At the time of trial, the husband was earning an income of approximately $100,000 per year from his jobs as a flight instructor and a veterinarian.
The wife was 39 years old at the time of trial. The wife suffered from a number of health problems during the marriage. The wife attended Troy University, Dothan Campus, for three years but did not graduate.3 The wife worked sporadically, both while the parties cohabited and subsequent to their marriage, as a bookkeeper for the husband's veterinary clinic, earning no more than $10,000 annually. Additionally, during the final year of the parties' marriage, the husband purchased for the wife a small clothing boutique in Enterprise named "The Freckled Frog." At trial, the wife contended that "The Freckled Frog" was unprofitable; however, the husband contended that "The Freckled Frog" had the "capability" of producing more than $85,000 in annual income.4 In any event, it is undisputed that the wife's income was sporadic and nominal and that the parties' expenses were paid for primarily, if not solely, from the husband's income.5
The parties testified regarding the breakdown of the marriage. The husband stated, as noted above, that the wife had had an extramarital affair that resulted in a child being born to the wife and the paramour. The husband also testified that the wife had been convicted and placed on probation "for falsifying prescriptions" from his veterinary clinic. The husband further testified that the wife had forged his signature on checks drawn on the veterinary clinic's account. The husband testified that the wife had stolen between $50,000 and $70,000 from the veterinary clinic by way of the forged checks.
The wife testified that the breakdown of the marriage was due to the husband's controlling nature. Specifically, the wife testified that the husband had filed for divorce twice previously and that those filings were attempts to control the wife. The wife also testified that the husband had lied under oath—to her detriment— while testifying during her trial on the charges that she had falsified certain prescriptions from the veterinary clinic. The wife further testified that the husband has a "very bad temper."
The trial court received evidence of the parties' marital assets. The husband's assets consist of substantial holdings of real property, which have an approximate net value of $456,700; numerous motor vehicles and related items, including several automobiles, a tractor, a boat, a trailer, and several plows, which have an approximate value of $117,300; a retirement account that is valued at $109,000 and encumbered with a debt of $32,000; and other personal property. The wife's marital assets consist of a 1997 Lexus automobile, which was purchased by the husband in 2003 for $31,000 and is titled in the husband's name; "The Freckled Frog" store; and other personal property.
At trial, neither the husband nor the wife introduced documentary evidence or testified specifically regarding their individual monthly expenses. The husband introduced evidence regarding his consumer debt, which totals $216,615. For all that appears in the record, the wife has no debt other than an outstanding attorney's fee from a previous criminal prosecution.
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