Henning v. Henning

• Decision Date: 19 June 2009
• Docket Number: 2071192.
• Citation: 26 So.3d 450
• Parties: Doris L. HENNING v. Terry L. HENNING.
• Court: Alabama Court of Civil Appeals

26 So.3d 450

Doris L. HENNING v. Terry L. HENNING.

2071192.

Court of Civil Appeals of Alabama.

June 19, 2009.

Claude D. Boone, Mobile, for appellant.

Donald M. Briskman of Briskman & Binion, P.C., Mobile, for appellee.

THOMAS, Judge.

This is the second time these parties have been before this court. See Henning v. Henning, 999 So.2d 523 (Ala.Civ.App. 2008). The pertinent procedural history was summarized in Henning: "Doris L. Henning ('the former wife') and Terry L. Henning ('the former husband') were divorced in May 2003. The judgment of divorce required the former husband to pay the former wife monthly alimony in the amount of $3,500, to maintain health-insurance coverage on the former wife through COBRA as long as permitted by law, and to maintain the former wife as an irrevocable beneficiary of one-half of the proceeds of any life-insurance policy he currently had in existence and, in the event that the existing policy was terminated for any reason, to maintain the former wife as a beneficiary of a policy of equal value. In July 2005, the former husband moved to terminate, suspend, or reduce his alimony, health-insurance, and life-insurance obligations under the divorce judgment because he was being dismissed from his employment effective August 1, 2005. The former husband later amended his motion to report that he could continue to make the monthly alimony payment through December 2005 but that he had lost his health insurance and life insurance when he was dismissed from his employment. The former wife objected to the former husband's request that his obligations under the divorce judgment be terminated and moved to hold the former husband in contempt for failing to pay alimony during the pendency of his motion.

"After a trial, the trial court entered a judgment that reduced the former husband's alimony obligation to $1,750 per month and held the former husband in contempt for failing to pay alimony as requested by the former wife; the trial court permitted the former husband to purge himself of contempt by complying with all orders of the court. In addition, the trial court awarded the wife a $17,500 alimony arrearage and awarded the former wife's attorney $1,000 to be applied to his fee. The judgment did not address the former husband's obligation to maintain a life-insurance policy naming the former wife as a beneficiary or his obligation to maintain health insurance on the former wife pursuant to COBRA. However, the former husband testified, and the former wife did not refute, that the former husband had paid the COBRA premiums for 36 months, the amount of time that the former wife was eligible for coverage pursuant to COBRA; thus, the former husband's health-insurance obligation expired pursuant to the terms of the divorce judgment. Both parties filed timely postjudgment motions. The former wife argued in her postjudgment motion that the trial court had failed to rule on whether the former husband would continue to be required to maintain a life-insurance policy naming the former wife as a beneficiary; the former husband argued in his postjudgment motion that he was unable to pay even the reduced amount of alimony the trial court had ordered. After a hearing on the postjudgment motions, the trial court denied them both. Both parties appeal[ed]."

Henning, 999 So.2d at 524-25.

We dismissed the parties' first appeals because the trial court had failed to address the request by Terry L. Henning ("the former husband") that he be relieved of his obligation to maintain a life-insurance policy on his life naming Doris L. Henning ("the former wife") as an irrevocable beneficiary. Id. at 525-26. After our dismissal of the appeal, the trial court, on August 8, 2008, entered a judgment relieving the former husband of that obligation, and the former wife again appealed. The former husband, although he filed a brief in which he characterized himself as a cross-appellant and in which he presented the issue he had raised in his cross-appeal in the former appeal, did not appeal from the August 8, 2008, judgment entered after our dismissal of the first appeals. Thus, we granted the former wife's motion to strike his brief insofar as it purported to present an issue on cross-appeal.

The former wife first argues on appeal that the trial court erred by reducing the former husband's alimony obligation. The former wife relies on the principle that it is the ability to earn of the supporting spouse and not necessarily his or her actual income upon which a decision to reduce alimony should be based. See, e.g., Taylor v. Taylor, 640 So.2d 971, 973 (Ala.Civ.App. 1994). She further argues that the trial court also erred by terminating the former husband's obligation to maintain a life-insurance policy naming her as an irrevocable beneficiary. The former wife argues that the provision in the divorce judgment requiring the former husband to name her as an irrevocable beneficiary of a life-insurance policy was either an alimony-in-gross provision or a part of the property settlement between the parties and, therefore, was not modifiable. See, e.g., Rose v. Rose, 496 So.2d 85, 86 (Ala.Civ.App.1986).

The only witnesses at the trial were the former husband and the former wife. Several exhibits were admitted into evidence; however, the exhibits were apparently lost, and the parties have provided this court with only certain replacement exhibits consisting mainly of bank statements and composite exhibits totaling bank deposits for several years. The depositions of the former husband and his current wife, which were admitted at trial, are not included in the exhibits on appeal. The former wife's exhibit outlining her expenses is also missing from the record. Although the former wife appended certain exhibits to her brief, we are precluded from considering those items because they are not contained in the record on appeal. See Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000) (reiterating the principle that "[t]he record on appeal cannot be supplemented or enlarged by the attachment of an appendix to an appellant's brief"). We note that "[w]here ... evidence before the trial court ... is not preserved for the appellate court, the evidence is conclusively presumed to support the trial court's [judgment]." White v. White, 589 So.2d 740, 743 (Ala.Civ.App. 1991).

The former husband, who was 61 years old at the time of trial in November 2006, testified that he had been employed at the time of the parties' divorce by McKesson Corporation as a software engineer earning a salary of $140,000 per year. In August 2005, the former husband was dismissed from his employment with McKesson and Robbins; however, as part of his negotiated severance package, he was paid his salary until January 26, 2006. The former husband paid his last alimony payment in January 2006. According to the former husband, the life-insurance policy naming the former wife as a beneficiary was terminated in August 2006, when he was dismissed from employment.

When questioned about his health, the former husband replied that he had high blood pressure and heart problems and that he might have had one minor stroke. According to the former husband, his health problems have affected his short-term memory, making his recall of details difficult. He explained that he had been hospitalized three times in the five years preceding the trial in November 2006. Later, on cross-examination, the former husband was confronted with his prior deposition testimony in which he had answered in the affirmative when asked if his health problems had existed before the divorce. However, the former husband was unable to state when he began experiencing problems with his memory.

The former husband could not recall whether he had inquired about converting his life-insurance policy from a group policy to an individual policy when he was dismissed from his employment. He did testify that he had looked into getting a replacement policy by calling one insurance agent; according to the former husband, his health and age were impediments to getting a replacement policy. However, the former husband admitted that his current wife had obtained a life-insurance policy on his life after they married in late 2003 or in 2004. The former husband explained that his current wife had contacted an insurance agent who came to their house in order to obtain that policy. The former husband did testify that, although he could not find replacement insurance, he would be willing to look for some affordable life insurance if it were available to him.

A review of the former husband's bank accounts by the former wife revealed that more income than was reported on his joint annual tax return was being deposited in the former husband and his current wife's joint account each year. The amount of the difference varied from approximately $73,000 in 2004 to $147,000 in 2005. The former husband explained that some of the larger deposits in 2005 were from the sale of a beach condominium or from the sale of stock options that he had been required to sell upon his dismissal from employment. He explained that other specific deposits that he was questioned about were transfers from his savings account. The amount of money in the former husband's savings account was not disclosed in the record.

The former husband insisted that he did not have any remaining stock options, although the former wife's attorney questioned him about a document indicating the existence of stock options. As noted above, the trial exhibits were lost; the document from the former husband's employer referencing stock options is also not an exhibit in the record on appeal. The former husband further testified that he had not transferred any money from his business account, which will be discussed in more detail below, into his personal account.

Regarding his employment search after his dismissal from McKesson and Robbins, the former husband...