Johnson v. Johnson, 2200984

CourtAlabama Court of Civil Appeals
Writing for the CourtHANSON, JUDGE.
PartiesWilliam Anthony Johnson, Sr. v. Mindy Reed Johnson
Docket Number2200984
Decision Date16 September 2022

William Anthony Johnson, Sr.
v.
Mindy Reed Johnson

No. 2200984

Alabama Court of Civil Appeals

September 16, 2022


Appeal from Washington Circuit Court (DR-20-900083)

HANSON, JUDGE.

William Anthony Johnson, Sr. ("the husband"), appeals from a judgment entered by the Washington Circuit Court ("the trial court") divorcing him from Mindy Reed Johnson ("the wife"). The husband specifically alleges that the trial court erred in the dividing the parties'

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marital property, awarding the wife rehabilitative alimony, and calculating child support. We affirm the trial court's judgment in part, reverse it in part, and remand the cause.

Procedural History

In October 2020, the wife filed a complaint requesting that the trial court divorce the parties based on incompatibility of temperament; equitably divide the parties' marital property; and award her rehabilitative alimony, custody of the parties' child, and child support. The husband filed a response to the wife's divorce petition denying the wife's allegations. After a trial, the trial court divorced the parties based on incompatibility of temperament; directed the husband to pay the wife $907.30 per month in child support and $350 per month for 36 months in rehabilitative alimony; and awarded the wife $10,000 in equity from the marital residence, $23,500 from the husband's retirement account, two specific vehicles, and, among other things, personal items that the wife and the parties' child used. The trial court awarded the husband the remaining marital property, including the marital residence, two specific vehicles, and any other vehicle titled in his name. The husband timely filed a notice of appeal.

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Facts

The parties married in August 2008 and separated in September 2020. In 2010, the parties purchased the marital residence. When the parties separated, the wife moved into her aunt's residence because, the wife said, she could not afford her own place. At the time of trial, the parties had $16,000 in equity in the marital residence. During the marriage, the wife had not been employed. At trial, the wife testified that she believed that she was entitled to a portion of the funds in the husband's retirement account because, throughout the marriage, she had stayed at home, caring for the parties' child and tending to the home, and did not have a retirement account of her own. The wife also testified that the husband had transferred $3,000 out of her personal bank account, to which he was only a signatory, without her authorization.

The husband testified that, after the parties had separated, he had withdrawn approximately $45,000 from his retirement account and had gambled away the entire amount. The husband admitted that he had a gambling addiction. At trial, the husband testified that his year-to-date gross income for the first 10 months of 2020 was $112,886.12. The husband admitted that he did not have any problem with providing

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insurance and child support for the parties' child. The wife stated that her current gross income was $2,483 per month.

Division of Marital Property and Award of Rehabilitative Alimony

On appeal, the husband argues that the trial court erred in its division of the parties' marital property because, he says, the division was unfair and unequitable. He also asserts that the trial court erred by awarding the wife rehabilitative alimony. We disagree.

"'In reviewing a trial court's judgment 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 correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala. Civ. App. 1993). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala. Civ. App. 1995). Furthermore, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Golden v. Golden, 681 So.2d 605 (Ala. Civ. App. 1996). In addition, the trial court can consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility. Ex parte Drummond, 785 So.2d 358 (Ala. 2000). Moreover, in Kluever v. Kluever,
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656 So.2d 887 (Ala. Civ. App. 1995), this court stated, "[a]lthough this court is not permitted to substitute its judgment for that of the trial court, this court is permitted to review and revise the trial court's judgment upon an abuse of discretion." Id. at 889.'
"Langley v. Langley, 895 So.2d 971, 973 (Ala. Civ. App. 2003). 'Trial judges
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