K.W.M. v. P.N.M.

• Decision Date: 11 January 2013
• Docket Number: 2110699.
• Citation: 116 So.3d 1179
• Parties: K.W.M. v. P.N.M.
• Court: Alabama Court of Civil Appeals

116 So.3d 1179

K.W.M.

v.P.N.M.

2110699.

Court of Civil Appeals of Alabama.

Jan. 11, 2013.

Kesa M. Johnston, Roanoke, for appellant.

Oscar W. Adams III of Adams Law, P.C., Birmingham, for appellee.

THOMPSON, Presiding Judge.

P.N.M. (“the wife”) filed a complaint seeking a divorce from K.W.M. (“the husband”). In her complaint, the wife sought an award of custody of the two minor children of the marriage, a division of the marital assets and debts, an award of alimony, and an award of an attorney fee. In her complaint, the wife sought a divorce on the ground of incompatibility.

The parties reached an agreement regarding pendente lite support. On May 24, 2010, the trial court entered an order incorporating the terms of the parties' agreement; that order provided that the husband deposit into the parties' joint checking account the amount of $3,500 every two weeks and that the wife was to pay certain household expenses from those funds.

On March 9, 2011, the husband answered and counterclaimed for a divorce seeking an award of joint custody of the parties' children and an equitable division of the parties' assets. In his counterclaim, the husband alleged that the wife had committed adultery during the marriage. We note that, during the final hearing in this matter, the wife alleged adultery on the part of the husband.

On March 14, 2011, the trial court entered an order requiring the husband to endorse to the wife a check for $16,000 to compensate her for an arrearage in pendente lite support. In that March 14, 2011, order, the trial court also ordered the husband to comply with discovery requests by March 24, 2011, and it ordered the husband pay $100 per day as a sanction for every day after March 24, 2011, that the husband failed to produce responses to discovery.

The trial court conducted an ore tenus hearing over the course of four days. On December 28, 2011, the trial court entered a judgment in which it divorced the parties, awarded custody of the children to the wife subject to the husband's visitation rights, fashioned a property division and alimony award, and awarded the wife an attorney fee. The husband filed a postjudgment motion and a request that the trial court stay enforcement of the divorce judgment. The trial court entered a postjudgment order denying those requests, and the husband timely appealed.

The parties married in 1995. Two children, ages 17 and 15 at the time of the ore tenus hearing, were born of the parties' marriage. The parties separated in April 2010. The parties agreed that the wife would receive primary physical custody of the children and that the husband would receive visitation with the children. Thus, the testimony of the witnesses and the approximately 540 pages of exhibits that were admitted into evidence over the course of the 4–day divorce hearing focused on the parties' claims pertaining to the division of marital assets and debt, alimony, and attorney fees.

The wife has a doctorate degree in biological anthropology, and she has worked in the past as a college professor. The wife left her job as a professor to rear the parties' children, and she assisted the husband for several years in the business he started. The wife worked at a private school as a teacher from 2007 through 2009.

The wife was diagnosed with multiple sclerosis approximately 17 years ago, although she has not yet experienced severe symptoms of that disease. The wife testified, however, that she becomes fatigued in the afternoons and that she often suffers from migraines. The wife testified that she was willing to seek employment but that she needed a job that would allow her to be home when the parties' children were out of school and that would accommodate her fatigue and migraines.¹

The wife testified that, during the pendency of the divorce litigation, she had attempted to locate employment from several sources and had either not been offered the job or had decided not to accept an offer of employment. The wife testified that one job in which she had been interested would have required her to travel, and she stated that she was unable to do that because she needed to be home for the children.

At times during the pendency of this action, the wife worked part-time for a friend, Robert Smith. The wife testified that she stopped working for Smith a month before the divorce hearing because, she said, he no longer needed her help. The wife acknowledged that she had testified during her deposition that Smith was to pay her $25 per hour plus a commission. However, at the time of the deposition, although she had been working for Smith for four months, the wife had not yet received a paycheck. At the final hearing, the wife testified that she had worked on a “barter system” for Smith; she explained that Smith had purchased groceries for her and the children.

The record indicates that the wife had some sort of personal relationship with Smith. In addition, the husband presented evidence indicating that the wife had photographs of a naked man and other photographs of herself at least partially naked on her cellular telephone and on her computer. The evidence might support a conclusion that the wife had an extramarital relationship with the husband of the husband's sister. When asked by the husband whether she had a sexual relationship with Smith or any other man, the wife refused to answer, citing the Fifth Amendment.

The husband had worked for approximately 13 years as a police officer. He met the wife while he was pursuing his bachelor's degree in physical therapy. The husband had worked as a physical therapist for a period. In 2003, the husband started a business, Solutions Therapy (“the business”), that provides physical-therapy and occupational-therapy services on a contract basis. The business is incorporated as a subchapter S corporation.

For approximately two to three years, the husband operated the business out of the parties' home, and he later moved the business to an office building. The husband employed the wife and at least two other administrative employees in the business. In addition, at one time, the business had 60 to 70 therapists who worked as independent contractors. In addition to operating the business, the husband testified that he works as a physical therapist and an occupational therapist for the business.

The wife testified that, while they were working together to operate the business, the husband often yelled at her; she also stated that he fired her and rehired her several times. Two former employees who testified supported the wife's testimony that the husband had a quick temper and often yelled at the wife and other employees. In addition, when questioned as to whether he had engaged in an extramarital affair with one of his employees or independent contractors during the parties' marriage, the husband refused to answer, citing the Fifth Amendment.

The husband testified at the divorce hearing that, at that time, the business had “a lot fewer” contracts pursuant to which the business would provide services to certain companies or health-care agencies. Later testimony established that the business had lost only one former contract client, although that client, according to the husband, had accounted for a significant portion of the business's income. A May 2011 letter to the business from that client cited the husband's discussion with its patients of his pending divorce as the basis for its decision to terminate that contract. The husband testified that the client had actually hired away from the business a number of the people the business had used as independent contractors, and, therefore, he stated, the reason offered by the client for terminating the contract with the business was not accurate. However, the husband also testified that he had and would continue to discuss personal matters such as the divorce with his patients. With regard to the business's remaining contracts, the husband testified that his business had been drastically reduced because of 2009 changes to Medicare reimbursement.

The record indicates the gross income of the business for the tax years 2004 through 2009, with the exception of 2005, for which the parties could not locate records. The business had gross income of $272,474 in 2004; $1,515,367 in 2006; $2,435,177 in 2007; $2,929,479 in 2008; $2,201,874 in 2009; and $1,048,120 in 2010.

Bonnie Dawson, the accountant hired by the business to prepare its tax returns, testified that in every year except 2004 the business had posted losses. She stated that the business had a $36,642 profit in 2004. The approximate losses for the remaining years were $82,000 in 2006, $93,000 in 2007, $48,000 in 2008, $85,000 in 2009, and $75,278 in 2010. Dawson testified that because the business was a subchapter S corporation, the losses were reported on the husband's personal income-tax returns and that they operated to offset the income paid to the husband from the business. Dawson also testified that she prepared the business's tax returns based on the financial information provided to her by the husband and that she did not audit the information provided to her by the husband to determine its accuracy.

The record contains personal income-tax returns for the parties for the years 2008, 2009, and 2010. Those returns indicate that the parties' combined gross income was $193,770 in 2008 and $209,568 in 2009.² The personal income-tax return filed by the parties in 2010 indicates that the husband's gross income was $158,166. In addition, in 2010, the parties received an $18,000 federal income-tax refund and a $5,000 state income-tax refund. The husband received and retained those income-tax refunds.

The husband attempted to present evidence indicating that those figures did not accurately reflect his income because, he stated, he made loans to the business to keep it operational. Dawson testified that, as of 2010, the business's records indicated that...