Glazner v. Glazner

• Decision Date: 11 May 2001
• Citation: 807 So.2d 555
• Parties: James Lytton GLAZNER v. Elisabeth C. GLAZNER. Elisabeth C. Glazner v. James Lytton Glazner.
• Court: Alabama Court of Civil Appeals

807 So.2d 555

James Lytton GLAZNER v. Elisabeth C. GLAZNER.

Elisabeth C. Glazner v. James Lytton Glazner.

2000075.

Court of Civil Appeals of Alabama.

May 11, 2001.

Rehearing Denied July 20, 2001.

Judith S. Crittenden, Virginia L. Martin, and LaTresia L. Kinnell of Crittenden Martin, Birmingham, for appellant/cross appellee James Lytton Glazner.

Bruce L. Gordon of Gordon, Silberman, Wiggins & Childs, P.C., Birmingham, for appellee/cross appellant Elisabeth C. Glazner.

YATES, Presiding Judge.

On February 24, 1999, James Lytton Glazner sued Elisabeth C. Glazner for a divorce, alleging incompatibility of temperament. The wife answered and counterclaimed, seeking custody of the parties' three minor children, child support, alimony, and a division of the marital assets. On June 23, 1999, the parties entered into a memorandum agreement in open court that allowed the wife temporary custody of the children, exclusive use of the marital residence, and the use of a Ford Expedition motor vehicle. The husband was ordered to pay $4,062 per month in "family support" and was ordered to maintain the lease on the Ford Expedition. After the wife petitioned for a rule nisi and the husband counterpetitioned, the court entered an order ratifying the parties' June 1999 memorandum agreement and ordered the husband to pay postminority support for the parties' oldest child, who was attending college.

After conducting a 10-day ore tenus proceeding, the court, on June 7, 2000, entered a detailed 14-page judgment of divorce. As it pertains to this appeal, the order stated,

"4. That the [wife] is hereby awarded the care, custody and control of the minor children of the parties....

". . . .

"8. That the [husband] is hereby ordered to pay to the [wife] the sum of [$2,500] per month for the support and maintenance of the said minor children of the parties.... The child support is not set pursuant to Rule 32 Child Support Guidelines, Rule of Judicial Administration[,] due to the [fact that the husband's income exceeds] the guidelines. The Child Support Guideline Forms, [husband's and wife's CS-41 `Income Affidavit' and CS-42 `Child Support Guideline'], are filed in this cause.

". . . .

"19. That the [husband] shall pay to the [wife] the sum of [$1,500] per month as periodic alimony....

"20. That the [husband] shall pay to the [wife] the sum of [$300,000] as alimony in gross, payable at the rate of [$50,000] per year for six years with the first payment being due and payable within sixty (60) days from the date of this Final Judgment of Divorce and subsequent payments being due and payable each September 5 thereafter until satisfied. The alimony in gross is not subject to modification ... and shall not be deducted by the [husband] on any federal or state income tax return and no payment received by the [wife] hereunder will be reported by the [wife] as income on any federal or state income tax return. In the event any installment due is not made within fifteen (15) days of the due date as provided for herein, that installment shall bear interest at the rate of eight (8%) percent per annum from the date of this Final Judgment of Divorce.

". . . .

"22. That the residence of the parties... shall be the sole and separate property of the [wife] and the [husband] is divested of any interest therein. The [husband] shall convey to the [wife] by warranty deed any and all of his right, title and interest in and to the above described real estate.

"23. The Court finds that there is a mortgage on the said residence as described in Paragraph 22 hereinabove through Compass Bank which will be paid off in approximately three (3) years, and a home equity loan on said residence, also through Compass Bank. The [husband] shall be solely responsible for all mortgage payments (both first and second mortgages), including principal, interest, taxes and insurance, and any other payments due and owing in connection with the said residence and he shall indemnify and hold the [wife] harmless therefrom.

"24. That the [husband] shall have as his sole and separate property, the warehouse on the leased lot and his interest in Village Variety Toys and Gifts, Inc., and the [wife] is divested of any interest therein.

"25. That, for the purpose of marital property division, the [husband's] interest in the Village Variety Toys & Gifts, Inc. Profit Sharing Plan is hereby awarded to the [husband] and the [wife] is divested of any right, title or interest therein, except for one-half of said Plan which is hereby awarded to the [wife] effective on the `Assignment Date' which shall be the date of this Final Judgment of Divorce and the [husband] is divested of any right, title or interest therein.

". . . .

"36. That the [husband] shall pay directly to Bruce L. Gordon, as attorney for the [wife], the sum of [$58,500] as attorney's fees for professional services rendered on behalf of the [wife] in this matter and [$4,774.59] in expenses. This amount does not [necessarily] reflect the total value of said professional services but merely reflects the amount the [husband] is obligated and ordered to pay. Said attorney's fees and expenses shall be paid by the [husband] within thirty (30) days from the date of this Final Judgment of Divorce.

". . . .

"43. That the Court finds the [wife] in contempt of Court for her willful failure to comply with the visitation provisions of the Pendente Lite Order entered by the Court on September 23, 1999, wherein on at least two occasions, the [wife] specifically told the minor children that they did not have to go with the [husband] for his visitation. The Court further finds that the [wife's] actions... have played a role in the deterioration of the relationship between the parties' children and the [husband]

"44. That the Court finds the [wife] has failed to allow the [husband] his visitation with the children pursuant to the Pendente Lite Order heretofore rendered in this cause on September 23, 1999, through her willful contumacy and not her inability to comply and is therefore in criminal contempt of Court for failing to comply with the aforesaid Pendente Lite Order. The Court, therefore, cites the [wife] for criminal contempt and for violation of this Court's Order does sentence the [wife] to four (4) days in the Jefferson County Jail; however, the Court suspends sentence conditioned on the [wife's] future compliance with this Court's Orders.

"45. That the Court finds ... the [husband] in contempt of Court for his willful failure to comply with the terms of the Order heretofore rendered by the Court on January 26, 2000, wherein he failed to continue or extend the lease on the 1997 Ford Expedition nor did he make [available] alternative means of transportation for the [wife]. The 1994 Ford Mustang was not made available for delivery to the [wife] until February 11, 2000. The Court, therefore, cites the [husband] for contempt and for violation [of] this Court's Order does sentence the [husband] to two (2) days in the Jefferson County Jail; however, the Court suspends said sentence conditioned on the [husband's] future compliance with this Court's Orders."

The husband and wife filed postjudgment motions. After conducting a hearing, the court, on September 5, 2000, entered an amended order that, in part, reduced the husband's child-support payment to $1,800 per month, and the court prepared a CS-42 "Child Support Guideline" form with its order; the court entered two additional amended orders that are not pertinent to this appeal.

The husband argues, based on his financial circumstances, that the court erred in its award of child support, periodic alimony, alimony in gross, and attorney fees. The wife cross-appealed, arguing that the court erred in its award of alimony, in its findings of contempt, and in awarding her an insufficient amount for attorney fees based on the evidence.

In reviewing a judgment of the trial court in a divorce case, where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court's judgment based on those findings will be presumed to be correct and will not be disturbed...