Gibbs v. Gibbs

• Decision Date: 17 June 1994
• Parties: Donald Floyd GIBBS v. Elizabeth Ann GIBBS. AV92000692.
• Court: Alabama Court of Civil Appeals

Page 300

653 So.2d 300

Donald Floyd GIBBS v. Elizabeth Ann GIBBS.

AV92000692.

Court of Civil Appeals of Alabama.

June 17, 1994.

Rehearing Denied Oct. 7, 1994.

Certiorari Denied Jan. 20, 1995

Alabama Supreme Court 1940122.

Jack Floyd and Mary Ann Stackhouse of Floyd, Keener, Cusimano & Roberts, Gadsden, for appellant.

George A. Monk of Merrill, Porch, Dillon & Fite, Anniston, for appellee.

YATES, Judge.

On March 1, 1993, after hearing ore tenus evidence, the trial court divorced the parties. The court awarded to the wife periodic alimony, alimony in gross, various items of personal property, continued health insurance coverage, and an attorney fee. The trial court granted the wife a lien on the husband's real and personal property to ensure payment of the alimony in gross. The husband appeals, contending that the trial court abused its discretion: 1) in placing a lien on his property; 2) in awarding alimony to the wife, who he says had committed adultery; and 3) in making findings that he argues were not supported by the evidence.

The legal principles concerning divorce are well settled. Our review is limited where the judgment of the trial court is based on findings made from evidence presented ore tenus. Beck v. Beck, 564 So.2d 979 (Ala.Civ.App.1990). A judgment based on such findings is presumed correct and will be affirmed if it is supported by competent evidence, unless it is shown to be plainly and palpably wrong. Blankenship v. Blankenship, 534 So.2d 320 (Ala.Civ.App.1988).

The court awarded the wife $750,000 as alimony in gross, to be paid over 120 months. The court ordered:

"[T]o secure the payment of the alimony in gross provided for in this section, the [wife] is hereby granted a specific lien [on] all real property or any interest in real property which the [husband] may have at the present time or [that is] acquired by him at any time in the future, together with a lien on all of the [husband's] stock shares in Gibbs and Son's Machinery, Inc., Gibbs Racing, Inc., as well as stock shares in Silver Lakes Developers, Inc. and the First Bank of Boaz. Furthermore, the [wife] is granted a specific lien [on] any personal property, contract rights and accounts receivable presently owned by the [husband] or to which he is entitled, or any personal property, contract rights, or accounts receivable ... which he may hereafter acquire or become entitled [to].

"....

"Furthermore, as an additional measure to secure the payment of the alimony in gross provided for herein, the Court does hereby specifically retain jurisdiction over this cause to the extent that the [husband] is hereby enjoined from selling or disposing of any assets in his name individually without permission of this Court, and he is further restrained and enjoined from permitting the corporations which he controls through his majority ownership from transferring or disposing of any property without permission of this Court except in the ordinary course of business and under such circumstances as would not affect the net worth of any such corporation."

Alternatively, the order included a provision whereby the husband could opt to pay to the wife, within 30 days of the date of the order, a lump sum of $625,000 as alimony in gross.

The husband first argues that the imposition of a lien against his property and an injunction limiting his financial dealings to secure payment of alimony to the wife was an abuse of discretion. Our courts have consistently upheld such liens to ensure that a spouse receives alimony. See, Robinson v. Robinson, 381 So.2d 637 (Ala.Civ.App.), cert. denied, 381 So.2d 641 (Ala.1980).

There was extensive testimony that the husband had manipulated his business affairs after the parties began having marital difficulties, and particularly after the divorce action was initiated. Conflicting financial statements show that the husband's net worth went from $6.3 million in 1987 to $1.8 million, or to $2.4 million, at the time of trial in 1991. The trial court, after observing the parties and judging their credibility, deemed it necessary to protect and secure the wife's award of alimony in gross. We cannot say that the trial court abused its discretion in imposing a lien.

The husband next contends that the trial court abused its discretion in awarding to the wife periodic alimony and alimony in gross, when the wife was young and in good health. Additionally, he argues that in...