Ex parte Durbin

• Decision Date: 07 September 2001
• Citation: 818 So.2d 404
• Parties: Ex parte Marshall B. DURBIN, Jr. (In re Jackie McNeal Durbin v. Marshall B. Durbin, Jr.)
• Court: Alabama Supreme Court

818 So.2d 404

Ex parte Marshall B. DURBIN, Jr.

(In re Jackie McNeal Durbin v. Marshall B. Durbin, Jr.)

1000775.

Supreme Court of Alabama.

September 7, 2001.

Bruce L. Gordon of Gordon, Silberman, Wiggins & Childs, P.C., Birmingham; and L. Drew Redden of Redden, Mills & Clark, Birmingham, for petitioner.

Randall W. Nichols and Anne Lamkin Durward of Massey & Stotser, P.C., Birmingham, for respondent. WOODALL, Justice.

Marshall B. Durbin, Jr. ("the husband"), and Jackie McNeal Durbin ("the wife") were divorced by the Jefferson Circuit Court. The wife appealed from the divorce judgment, arguing that the trial court erred in its division of the marital property and in its award of periodic alimony.

The Court of Civil Appeals reversed the judgment of the trial court and remanded the case "with instructions for the trial court to treat all of the husband's personal Compass [Bancshares, Inc.] stock as marital property and to reconsider its division of the marital assets." Durbin v. Durbin, 818 So.2d 396, 402 (Ala.Civ.App.2000)(footnote omitted). The Court of Civil Appeals overruled the husband's application for rehearing on January 12, 2001.

The husband petitioned for certiorari review, which we granted on April 17, 2001. In his petition, he argues that the decision of the Court of Civil Appeals conflicts with this Court's decision in Ex parte Drummond, 785 So.2d 358 (Ala.2000). We have determined that it does conflict. Therefore, we reverse the judgment of the Court of Civil Appeals and remand the case.

Facts

The trial court's judgment followed a lengthy trial. The facts of the case were summarized in the Court of Civil Appeals' opinion:

"The parties were married in 1982; they separated in 1997 and were divorced in 1999. Each had been married and divorced before. No children were born of the marriage. The wife has an adult son from her prior marriage, and the husband has two adult daughters from his prior marriage. At the time of trial, the wife was 56 years old and the husband was 68 years old. The husband is the chief executive officer and 80% majority shareholder of Marshall Durbin Food Corporation (`MDFC'). During the marriage, the husband's income was derived from a salary from MDFC, stock dividends and director's fees from Compass Bancshares, Inc. (`Compass'), and other investment income. The wife did not work outside the home during the marriage. She has a degree in elementary education from the University of Alabama; she taught school during her first marriage, but she has not taught for 30 years and has not been otherwise employed for 20 years.

"The husband ceased drawing a salary from MDFC in April 1997 and since then has lived on his income from Compass stock dividends.... [A chart showing the husband's salary during the years of the marriage is included in the Court of Civil Appeals' opinion.]

"The trial court ordered that the parties' two residences—a mortgage-free home and an adjoining lot in Mountain Brook valued at $500,000, and a lake house at Willow Point in Alexander City, valued at between $325,000 and $500,000, with an encumbrance of $229,000 —be sold and the proceeds divided equally between the parties. The trial court ordered the husband to pay the remaining balance on the Willow Point note and mortgage. The wife was awarded investment and checking accounts containing approximately $530,000, a $450,000 share of the husband's 401(k) account, Compass stock worth $779,379.45, and one-half of the husband's $200,000 partnership subscription in River Capital Partners II. The wife was also awarded $4,500 per month in periodic alimony. Each party was awarded the vehicle in his or her possession as well as furniture, furnishings, personal, and household items. The husband was ordered to pay the wife an attorney fee of $145,000. He was also ordered to pay the wife's health-insurance premiums for three years pursuant to COBRA.

"The husband was awarded all of his interest in MDFC; Compass stock worth $6,699,336; a Cessna Citation airplane worth $900,000 and a hangar at Birmingham Airport worth $100,000; investment and checking accounts containing approximately $418,000; and a 401(k) account valued (after deducting the wife's award) at approximately $ 900,000. In addition, the husband was awarded 200-300 acres of timberland, valued at $100,000, and stock in Marsh Foods worth $8,000, both of which were acquired before the marriage.

"The husband's award (exclusive of his interest in MDFC, the timberland, and the Marsh Foods stock) totals approximately $9 million, or slightly over 80%, and the wife's award totals $2.2 million, or slightly less than 20%, of the marital estate...."

818 So.2d at 397-98 (footnote omitted; emphasis added).

On appeal before the Court of Civil Appeals, the wife argued that the trial court erred by treating the husband's interest in Marshall Durbin Food Corporation ("MDFC") as his separate estate and not considering it in the division of marital assets. The Court of Civil Appeals held that the trial court correctly determined that the corporation itself was not marital property, and therefore that the trial court did not err in refusing to treat the MDFC stock as marital property, because the husband had acquired all of that stock by inheritance or gift before the parties' marriage and it had not been used for the common benefit of the parties during the marriage.

As the Court of Civil Appeals noted, the trial court awarded some of the Compass stock to each party. The husband had acquired the Compass stock before the marriage:

"Before the marriage, the husband had acquired 18,016 shares of Compass stock. Over the years, those shares have increased through stock splits. At the time of trial, the husband owned 239,262 shares of Compass stock trading at $28 per share, for a total value of $6,699,336. It is undisputed that, although these Compass shares were acquired before the parties' marriage, the husband has, since 1990, deposited the dividends paid on these shares into his personal checking account. From his personal checking account, the husband has paid household bills and expenses and has given the wife a monthly expense allowance."

818 So.2d at 401. The trial court awarded the husband all of the Compass stock that had been acquired before the marriage.

The husband acquired additional Compass shares during the marriage:

"During the marriage, the husband acquired additional Compass shares through his participation in a `Monthly Investment Program' or MIP plan. Under the MIP plan, the director's fees received by the husband for serving on the Compass board of directors were used to purchase additional shares of stock. The husband acquired approximately 55,670 additional shares of Compass stock through his participation in the MIP plan. According to the husband, the additional shares earned dividends, but those dividends were not deposited with the other Compass dividends into his personal checking account. The dividends on the MIP shares were, according to the husband, `left in the [MIP] plan.'"

818 So.2d at 401. The trial judge awarded the wife one-half of the Compass stock that the husband acquired during the marriage.

The Court of Civil Appeals held that the trial court should have considered as marital property the Compass stock that was obtained before the marriage ("the non-MIP Compass stock"):

"[T]he trial court should have considered the 239,262 shares of Compass stock as marital property because, although the stock was acquired before the marriage, the income from the stock was regularly used for the common benefit of the parties during the marriage. See Drummond v. Drummond, 785 So.2d 353 (Ala. Civ.App.1999), reversed, 785 So.2d 358 (Ala.2000); Bushnell v. Bushnell, 713 So.2d 962 (Ala.Civ.App.1997); Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App. 1980)."

818 So.2d at 401. In reversing the trial court's judgment and instructing it to treat all of the Compass stock as marital property when it reconsiders its division of the marital assets, the Court of Civil Appeals stated:

"It appears that the trial court did not consider the non-MIP Compass stock in its division of marital property. If that is true, then the trial court erred in applying the law to the facts. See Drummond v. Drummond, supra.... If the trial court did consider the non-MIP Compass stock in its division of marital property but chose, in its discretion, not to award the wife a portion of the stock (or other assets of comparable value), then we conclude that the division of property is inequitable and that the trial court abused its discretion."

818 So.2d at 401-02.

Standard of Review

In Ex parte Drummond, we described the relevant standard of review:

"`The standard appellate courts apply in reviewing a trial court's judgment awarding alimony and dividing property is well established:

"`A trial court's determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App. 1993). Moreover, issues of alimony and property division must be considered together, and the trial court's

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