Kaufman v. Kaufman, 2040100 and

Decision Date30 December 2005
Docket Number2040100 and,2040276.
Citation934 So.2d 1073
PartiesEsther M. KAUFMAN v. Charles T. KAUFMAN.
CourtAlabama Court of Civil Appeals

Joan-Marie Kettell of Kettell & Campbell, L.L.P., Huntsville, for appellant.

J.R. Herring, Dothan, for appellee.

THOMPSON, Judge.

Esther M. Kaufman ("the wife") sued Charles T. Kaufman ("the husband") for a divorce, seeking a division of the parties' marital property and an award of periodic alimony. Both parties sought pendente lite possession of the marital residence, and the husband filed several pendente lite motions pertaining to his allegations that the wife had removed certain property from the marital residence. The trial court conducted an ore tenus hearing. On June 3, 2004, the trial court entered a judgment in which it divorced the parties, fashioned a property division, and awarded the wife periodic alimony for a period of five years.

On July 1, 2004, the husband filed a motion seeking to have the wife held in contempt. The wife filed a postjudgment motion on July 6, 2004. The trial court entered an order denying the wife's postjudgment motion, and later, on September 22, 2004, it entered an order ("the contempt order") in which it found the wife in contempt and imposed sanctions against her. The wife moved to set aside the September 22, 2004, contempt order, but, after conducting a hearing, the trial court denied that motion. The wife filed timely notices of appeal with regard to the divorce judgment and the contempt order. Those appeals have been consolidated.

The record reveals the following pertinent facts. At the time of the hearing, the parties had been married for more than 33 years; no children were born of the parties' marriage. The husband was 87 years old and the wife was 66 years old. The husband had had two previous marriages and had three surviving children from those marriages. The husband has a number of health problems, including diabetes and congestive heart failure. The wife is in relatively good health.

The wife is a native of Panama;1 the parties met while the husband was working for the United States government in the Panama Canal zone.2 The wife had two minor children at the time the parties married in 1971. The husband retired from his employment with the United States government in 1975, and the parties moved to Alabama. The parties raised the wife's two children, and the husband's children from his previous marriages visited the parties. The wife testified that she had no assets when she married the husband, and she stated that at the time they married the husband had no financial accounts of which she was aware.

At the time of the hearing, the wife was receiving approximately $400 per month in Social Security income, as well as $166 per month from a retirement account from her previous employment in Panama. The record does not indicate the amount of the husband's monthly retirement income from Social Security, the amount of his United States government retirement benefits, or the amount of any retirement income from his private employers.

The husband obtained new employment after the parties moved to Alabama, and the record indicates that the husband's income was used to support the family. The wife worked various jobs, mostly cleaning houses, after the parties moved to Alabama. The wife testified that she used the income from her employment to purchase items for the house and household.

The parties separated in late September 2003, shortly after the husband withdrew $44,600 from the parties' joint checking account and gave it to his daughter. The wife testified that the husband had given another check for $10,000 to his daughter and informed the wife that it was none of her business what he did with the money. The wife also testified that at the time she questioned him about the withdrawal from the couple's joint checking account, the husband threatened to "twist her neck."

After the husband gave the $44,600 to his daughter, the wife withdrew amounts from the parties' bank accounts. The testimony surrounding the wife's withdrawals from the bank accounts was somewhat vague and confusing. Our review of the record indicates that after the husband withdrew the $44,600, the wife withdrew $5,000 from each of two checking accounts. The wife also withdrew additional amounts from another bank account;3 she testified that she withdrew $9,000 to repay a loan she had obtained from her daughter and that she did not recall why she had withdrawn $8,000 from an account in the month before the parties' separation.

The evidence in the record indicates that each of the parties has given generous gifts or loans to various family members during the course of the parties' marriage. The loans to the family members were not formalized in writing.

Also, the husband presented the testimony of Jack Lawrence, an accountant who had examined two bank accounts and was testifying "as a favor" to the husband's daughter. The record indicates that one of the accounts Lawrence examined was listed solely in the wife's name, but the record does not specify the name or names on the other account. Lawrence testified that since May 2000 more than $90,000 had been deposited and withdrawn from those accounts. The husband did not submit into evidence any supporting documentation, so there is no evidence regarding the disposition of those funds; that supporting documentation was in the possession of the husband's daughter. Lawrence testified that some of the amounts withdrawn were in amounts as large as $7,000 to $8,000; he identified some checks for those amounts as being paid to an automobile dealership, but he was unable to specify to whom the other large checks were paid.

The husband submitted into evidence a list of the parties' assets and his valuations of those assets; that list is hereinafter referred to as "Exhibit 1." The wife testified that one account listed on Exhibit 1 no longer existed; that account, which is listed as containing approximately $8,000, was held in the names of the wife and her grandson. Also, the wife testified that the parties purchased her vehicle in 2003 for $38,000; the value attributed to that vehicle on Exhibit 1 is $45,000. However, the wife did not dispute the valuation of any of the assets listed on Exhibit 1.

After the parties separated, the husband filed several motions expressing his desire to have pendente lite possession of the marital residence and pertaining to the wife's removal of certain items from the marital residence. During the pendency of this matter, the trial court ordered the wife to return certain property she had removed from the residence; the record indicates that the wife did not comply with that order. The trial court also ordered both parties to refrain from removing any other items from the marital residence pending the entry of a final divorce judgment.

In its June 3, 2004, divorce judgment, the trial court awarded the wife four accounts held in the name of the wife or in the names of the wife and one of her children. The total value of those accounts was approximately $34,700. The trial court awarded all remaining accounts to the husband; the total value of those accounts was approximately $362,510. In addition, the trial court awarded the husband the right to collect on three loans made to the parties' family members; the outstanding balances on those loans totaled approximately $100,000. The wife was awarded the right to collect on a $20,817.42 loan the parties had made to the wife's sister.

The divorce judgment indicates that the trial court valued the parties' marital residence and furnishings at $146,000. In paragraph 8 of its divorce judgment, the trial court awarded the husband the option of either selling the residence and its contents and dividing the proceeds equally with the wife or of purchasing the wife's interest in those assets for $73,000. However, in paragraph 12 of the divorce judgment, the trial court ordered that the furnishings in the residence be sold and the proceeds divided equally between the parties. That conflict in the divorce judgment is addressed later in this opinion.

In addition to the foregoing, in its June 3, 2004, divorce judgment, the trial court awarded the parties the vehicles in their possession, ordered the husband to pay the wife $500 per month in periodic alimony for a period of five years, and ordered the husband to pay $1,500 toward the wife's attorney fee.

On July 1, 2004, the husband filed his motion seeking to have the wife held in contempt for removing items from the marital residence; the husband submitted an exhibit indicating that the replacement cost4 of the items he contended were removed from the marital residence totaled $27,985.46. On September 22, 2004, the trial court entered its contempt order finding the wife in contempt and ordering her to return all of the items listed on the contempt exhibit or to pay the husband $27,985.46 for those items.

In her October 20, 2004, motion seeking to set aside the contempt order, the wife alleged that the husband had failed to pay a filing fee in support of his contempt motion and that she had received no notice of the trial court's hearing on the contempt motion. In that motion and during the hearing on the wife's motion to set aside the contempt order, the wife's attorney maintained that she had participated by telephone in a hearing on the wife's postjudgment motion regarding the divorce judgment, and that, after she had terminated that telephone call, the husband's contempt motion was discussed and considered by the husband's attorney and the trial court. The husband's attorney agreed that the contempt motion and the evidence presented in support of that motion was presented to the trial court after the wife's attorney hung up from the telephone call. The husband's attorney argued that the wife failed to present evidence in opposition to the motion for contempt and...

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