DLJ v. BRJ

• Decision Date: 01 August 2003
• Docket Number: No. 2020122.,2020122.
• Parties: D.L.J. v. B.R.J.
• Court: Alabama Court of Civil Appeals

887 So.2d 242

D.L.J. v. B.R.J.

No. 2020122.

Court of Civil Appeals of Alabama.

August 1, 2003.

Rehearing Denied September 19, 2003.

David M. Andres, Tuscaloosa, for appellant.

Matt Grover and Paul W. Patterson II of The Prince Patterson Law Firm, P.C., Tuscaloosa, for appellee.

PITTMAN, Judge.

D.L.J. ("the husband") appeals from the trial court's modification of a judgment of legal separation entered on May 1, 1999. On November 25, 1998, B.R.J. ("the wife") filed a complaint requesting a divorce from the husband. Five months later, the wife amended her complaint to seek only a legal separation instead of a divorce and filed deposition testimony to the effect that she and the husband had reached a fair and reasonable agreement settling all issues raised by her complaint for a legal separation. On May 1, 1999, the trial court "ratified and confirmed" the parties' legal separation agreement. The agreement provided, in pertinent part:

"The parties shall maintain joint ownership of all the real property presently owned by them with all the attendant rights of co-tenancy and survivorship remaining unaltered by this Agreement."

The agreement also reserved the issue of alimony and provided that the husband would maintain health insurance on the wife and would pay all of her medical expenses.¹

On February 25, 2002, the wife² filed a petition to modify the judgment, alleging a material change in circumstances; the wife's petition requested an award of alimony and an equal division of the real property owned by the parties. The wife's petition also included a request that the trial court find the husband in contempt for failure to fulfill all of his obligations under the separation judgment. The husband filed a motion to dismiss the wife's petition. The trial court held a hearing on June 6, 2002, and it denied the husband's motion to dismiss.

The husband and four of the couple's adult children testified during the ore tenus proceeding. The husband testified that he was 65 years old, that he had retired as a construction worker and pipe fitter, that he has had heart-bypass surgery, and that he is deaf in one ear. At the time of trial, the husband received monthly Social Security benefits in the amount of $1,075; he was also collecting pensions from his local and national unions totaling $489 per month. Also, the husband testified that he was receiving a monthly check of $158.56 from an individual-retirement account that was awarded to him in the original separation agreement. The husband, at the time of trial, had custody of and responsibility for a seven-year-old grandson of the parties.

The husband explained his belief that modification of the separation judgment was not necessary because the couple had previously purchased 17 acres on Old Gorgas Road in Tuscaloosa County to sell for a profit when either the husband or the wife should need the money. He stated that he had inherited the marital residence and 30 acres of land on which the residence was located. The husband also testified that he had purchased 60 adjoining acres from his parents' estate when his siblings decided not to keep the property. Additionally, the husband stated that the parties also owned a waterfront lot on Lake Tuscaloosa that could be sold at any time to provide money to defray the parties' living expenses. The husband testified that the separation agreement required that "any and all income/profits received from said real estate shall be divided equally between the parties." The husband testified that he believed that provision meant that he could deduct maintenance costs and property taxes paid on the property from rentals received before sending the wife half of the monthly rental income.

L.D., one of the couple's daughters who had been appointed as the wife's conservator, testified that the wife had been fully coherent and reasonably healthy until June 2001, but that she had lost much of her physical and mental abilities since that time. L.D. testified that, by the time of trial, she was bathing the wife, feeding her, taking her to doctor appointments, purchasing and administering medications, and generally handling all of the wife's activities on a daily basis. L.D. testified that the wife's monthly expenses, including medication, totaled $847. In addition to that amount, L.D. testified that, because she had to hire a sitter whenever she left town or left the house for any reason, the wife was incurring monthly sitter fees of no less than $600. L.D. stated that she had had to quit her job in order to take care of the wife, who, L.D. stated, could die at any time.

L.D. testified that the wife received $555 in monthly Social Security payments. L.D. stated that, by the time of trial, the wife's checking account had only $22,000 left to defray all of her expenses for the rest of her life and that, therefore, L.D. had requested on behalf of the wife that the trial court award the wife alimony. She stated that the husband had not paid the wife her half of the rental income received from property owned jointly by the husband and the wife for several months and that he had an accumulated arrearage of $1,500. Lastly, L.D. asked the trial court to divide the marital property so that as conservator she could sell the property awarded to the wife to help pay for the living expenses of the wife until her death. During cross-examination, L.D. admitted that the husband was required to pay for all medical expenses that the wife incurred, including medications, and that those expenses, totaling $262 per month, should be deducted from L.D.'s calculation of the wife's monthly expenses.

R.M.F., another daughter of the couple, testified that on one occasion the husband had struck the wife in the face, causing her to fall and giving her a black eye. R.M.F. stated that she visited the wife once a week and that the wife's condition was deteriorating quickly. R.M.F. confirmed L.D.'s testimony that the wife's health was so poor that she might die soon.

W.V., another daughter, testified that the husband and wife had been argumentative throughout their marriage. W.V. stated that she saw the wife hitting the husband on one occasion; on another occasion, when the wife received the black eye, W.V. testified that the wife stated that it was a result of the pushing and shoving that the couple "always" did during an argument. W.V. stated that, when she was a child, she had surprised the wife while she was kissing another man. W.V. also testified that she knew the husband had been unfaithful to the wife.

D.W., another daughter of the couple, testified that during the two years before the trial, while the wife had been living with L.D., the family unit had disintegrated. D.W. stated that L.D. had threatened to arrest her if D.W. tried to visit the wife. During redirect, the husband stated that he knew of several affairs his wife had conducted during their marriage.

The trial court issued its judgment on June 10, 2002. The trial court found in its judgment that the husband and the wife had been married for 41 years before the separation judgment was entered. During that time the parties had acquired three parcels of property: the marital residence and approximately 90 acres adjoining the residence, a waterfront lot on Lake Tuscaloosa, and 17 acres on Old Gorgas Road in Tuscaloosa County. As a result of the wife's rapidly deteriorating health, the trial court concluded that a material change of circumstances had been shown so as to necessitate a modification of the separation judgment. The trial court awarded the wife the lakefront lot, awarded the husband the marital residence and adjoining acreage, and awarded each party an undivided one-half interest in the Old Gorgas Road property. The trial court awarded the wife $200 in monthly alimony, and it entered a judgment against the husband for $1,400 (the amount the trial court determined to be the arrearage in rental income owed to the wife). In the judgment, the trial court specifically found the husband not to be in contempt of court.

Both the husband and the wife filed postjudgment motions contending that the property division was inequitable. Additionally, the husband argued that no material change in circumstances had been demonstrated and that the wife was not entitled to alimony due to her possession of other assets. On August 22, 2002, the trial court conducted another hearing and accepted appraisals of the value of the three parcels from both parties. After reviewing the appraisals, the trial court modified the June 10, 2002, judgment on September 18, 2002, by making additional findings of fact regarding the properties in dispute.

The trial court found that the lakefront property had a fair market value of $45,000. The trial court determined that the marital residence was situated on 5 acres and was adjacent to 85 undeveloped acres; the trial court found the fair market value of the marital residence (and the five acres) to be $145,000 and the fair market value of the adjacent 85 acres to be $150,000. The parties stipulated that since the separation judgment, the husband had spent $14,000 in repairs to the marital residence, and the market-value determination by the trial court reflected those repairs.

The amended judgment awarded the husband the marital residence and the five acres, divesting the wife of any interest in that property. The trial court then awarded each party an undivided one-half interest in the remaining 85 acres as tenants in common (i.e., with no right of survivorship). All other provisions of the June 10, 2002, judgment were reaffirmed in the September 18, 2002, amended judgment.

The husband filed a postjudgment motion requesting "clarification" of the amended judgment. The trial court thereafter clarified the property division by entering an order listing the specific property interests awarded to each party in the judgment. The husband received the marital residence and...