Hinds v. Hinds

• Citation: 887 So.2d 267
• Decision Date: 07 November 2003
• Docket Number: No. 2020014.,2020014.
• Parties: Jane Meredith Andrews HINDS v. Thomas Martin HINDS.
• Court: Alabama Court of Civil Appeals

887 So.2d 267

Jane Meredith Andrews HINDS v. Thomas Martin HINDS.

No. 2020014.

Court of Civil Appeals of Alabama.

November 7, 2003.

Certiorari Denied February 13, 2004.

Claude D. Boone, Mobile, for Appellant.

Charles A. Dodson, Jr., and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile, for appellee.

Alabama Supreme Court 1030301.

PER CURIAM.

Jane Meredith Andrews Hinds ("the wife") appeals from a judgment terminating the obligation of Thomas Martin Hinds ("the husband") to pay her periodic alimony.

After a 21-year marriage, the parties were divorced in 1980. The judgment of divorce stated, in pertinent part:

"1. [The husband] shall pay [the wife] the sum of Seven Hundred and No/100 Dollars ($700.00) per month as alimony until the death of the [wife] or until such time as the [wife] shall remarry, whichever occurs earlier.

"....

"4. In the event the [husband's] income from regular full-time employment (provided that `income from regular full-time employment' shall not include any bonus or other extraordinary payment unless such bonus exceeds 30% of his base salary) increases from the amount which he receives as of the date of the decree of divorce in this case, the amount of periodic alimony and child support shall be increased in accordance with the following formula: On the 24th month following the entry of the decree and every 2 years thereafter the amount of such periodic alimony shall be increased by the percentage ( 1/2 the percentage upon [the parties' daughter's] reaching majority) by which the [husband's] income has increased in the same 24-month period (for example, if the [husband's] rate of salary at the end of the 24th month following the entry of the decree of divorce is 20% higher than his rate of salary as of the date of the decree, then the periodic alimony and child support commencing with the 25th month shall be 20% higher than the periodic alimony on the date of the decree). In the event of a decrease in income from regular full-time employment a comparable decrease shall be made in alimony and child support provided that bonuses and extraordinary payments shall be considered in determining whether a decrease has occurred. Such adjustment shall be effected without the necessity of further petition to this Court, but in the event the parties cannot agree on the amount of the adjustment then this Court shall determine the amount of the adjustment upon the petition of either party. So long as the [husband] is obligated to pay the [wife] alimony or child support pursuant to this paragraph, he shall maintain the policy of life insurance in the principal amount of $92,000 supplied by his employer (The [husband] shall act in good faith with his employer to maintain said policy) with the [wife] as beneficiary, provided that if the [wife] shall remarry, the beneficiary shall be changed to [the parties'] minor children. Upon the request of the [wife], the [husband] shall provide periodic evidence of the existence of said policy."

(Emphasis added.)

After the husband retired on December 31, 2000, he discontinued his periodic-alimony payments to the wife. In February 2001, the wife filed a petition for a rule nisi, alleging that the husband was in arrears in paying alimony. The husband moved for a judgment on the pleadings, asserting that, based on the language in paragraph 4 of the divorce judgment emphasized above, his obligation to pay alimony had terminated at the time he retired because, he argued, he no longer had any "income from full-time employment." The trial court denied the husband's motion for a judgment on the pleadings, and the husband then filed a petition to modify, seeking an order terminating his alimony obligation based on a material change in circumstances. The wife filed a counterpetition to modify, seeking an increase in periodic alimony based on a material change in circumstances. Following an ore tenus proceeding, the trial court denied the wife's petition for a rule nisi and granted the husband's petition to modify by terminating the husband's alimony obligation. The trial court's judgment states: "[A]ny further payment of alimony is hereby terminated ... in accordance with the terms of the judgment of divorce dated March 6, 1980." The court ordered each party to be responsible for his or her respective attorney fees.

The wife appeals, arguing that the trial court's interpretation of paragraph 4 of the divorce judgment is erroneous. She also maintains that the trial court's judgment cannot be upheld on the alternative basis that the husband established a material change in circumstances justifying a termination of his alimony obligation.

The parties were married in 1959, and they lived for 20 years in Greensboro, North Carolina, where the husband was in the banking business. The divorce was precipitated by the husband's accepting a position with the predecessor to Regions Bank in Mobile in 1979. The husband and the parties' minor son relocated to Mobile; the wife and the parties' minor daughter remained in North Carolina.

The wife was 62 years old at the time of the hearing. She is a college graduate with a major in English. During the marriage she did not work outside the home. After the divorce, she was employed in a variety of part-time jobs such as bank teller, receptionist, bookstore clerk, and salesperson in a antiques store; she never earned more than $8 per hour. She was last employed in 1999 as a receptionist at a museum. She testified that she left that job for health reasons. She explained that, for the 10 years preceding the hearing in this case, she had suffered from interstitial cystitis, an inflammation of the lining of the bladder that causes frequent urination and pain upon urination. She stated that the illness is a chronic one; it is treatable but not curable. The wife testified that she also suffered from cardiac arrhythmia, a spur on her rotator cuff, and varicose veins. She presented no evidence, however, to indicate that any of those conditions caused her not to be able to work.

Dr. Robert J. Evans, a board-certified urologist in Greensboro, North Carolina, testified by deposition that he had treated the wife for interstitial cystitis. He said that he had not advised the wife to stop working, and he could not say whether her illness rendered her unable to work. He stated that the illness varied greatly with the individual, that most patients had good days and bad days, and that he could not determine precisely how much the illness had affected the wife's daily life. He testified, however, that "most patients with this disease find it difficult to maintain employment because of the severity of their urinary frequency as well as from the side-effects of the medications they take; particularly, the antidepressants and the antihistamines. [Those medications] tend to make it hard for them to remain oriented."

The evidence tended to show that the wife maintains an active lifestyle. She travels frequently. She and her daughter went to Europe in 1999; she and a longtime male companion visited New York, Boston, and Washington, D.C., in 2001. In North Carolina, she is involved in the Debutante Club, the Friday Club, and the Greensboro Country Club, where, she admitted, she is a regular tennis player. Her monthly expenses at the country club are $350.

Before the husband retired, the wife had been receiving $1,340 per month in periodic alimony. At the time of the hearing, she was receiving Social Security benefits in the amount of $560 a month. She testified that since the divorce she has received over $100,000 in gifts from her mother. The wife owns stock valued at $178,000. She recently sold what had been the parties' marital home for a net profit of $385,000. She now lives in a condominium she purchased for $190,000, on which there is a mortgage of $110,000. The wife acknowledged that after she filed the petition for a rule nisi in this case, she made a $10,000 gift to her daughter.

The wife is a contingent beneficiary, along with her brother, of three family trusts valued at $1.2 million, $185,000, and $85,000, respectively. The first trust was established by the wife's uncle; its primary beneficiary is the uncle's 82-year-old former law partner. The wife and her brother will share in the proceeds of that trust if they outlive the primary beneficiary. The second and third trusts were established by the wife's father; the wife's mother is the primary beneficiary and the holder of a power of appointment over the trust assets. The wife and her brother are the sole heirs of their mother's estate.¹ The wife estimated that her portion of her mother's estate was valued at $150,000.

The husband, who was 68 years old at the time of the hearing, remarried after the divorce. He has two children, ages 7 and 10, by his second wife. He testified that for 22 years (a time period that, the husband points out, is longer than the length of the marriage) he had paid periodic alimony, biennially increasing his payments according to the formula set out in the divorce judgment, without missing a payment. He estimated that, in addition to having paid child-support for the parties' daughter, he had paid $100,000 for his son's college education expenses at Emory University and his daughter's college education expenses at Hollins College. He testified that he had also paid $25,000 to $30,000 for his daughter's wedding.

When the husband first went to work for the predecessor of Regions Bank in Mobile in 1979, his annual salary was $40,000. In 2000, when he retired as the chief executive officer of Regions Bank, his annual income was $492,799. The following year his income was $370,000, none of which was derived from "regular full-time employment." Until April 2003, he served as chairman of the board of the bank. The husband owns 55,000 shares of Regions Bank stock. His residence is worth approximately $400,000 and is subject to a mortgage held by his...