Keating v. Keating
| Decision Date | 08 March 2013 |
| Docket Number | 2110816. |
| Parties | Michael L. KEATING v. Jodi K. KEATING. |
| Court | Alabama Court of Civil Appeals |
OPINION TEXT STARTS HERE
Thomas P. Ollinger, Jr., Mobile, for appellant.
Submitted on appellant's brief only.
On Application for Rehearing
This court's opinion of December 14, 2012, is withdrawn, and the following is substituted therefor.
Michael L. Keating (“the husband”) appeals from a judgment divorcing him from Jodi K. Keating (“the wife”). In the judgment, the trial court, among other things, divided the marital property and ordered the husband to pay the wife $1,000 each month in periodic alimony.
This court's review of the record indicates the following. The parties married in March 1998. One child was born of the marriage. The child was 11 years old at the time of the trial. When the parties married, the wife said, she was a regional manager for a finance company. The wife testified that no money was owed on the house she lived in at the time she married the husband. The husband worked for a restaurant chain in Mobile. He did not own any real property at the time of the marriage, so the parties lived in the wife's house. Eventually, the wife said, they sold her house and built a new house. Later, they sold that house and moved into the house in which they were living when the wife filed for a divorce in April 2010. The wife also testified that, when the parties married, she paid off the husband's credit-card debt of between $8,000 and $9,000 and his student loans, which were a “few thousand dollars.”
The wife testified that she sought a divorce on the ground of adultery. She said that, in 2007, she discovered that the husband was having an affair with someone with whom he was attending graduate school. The wife said that the husband told her that their marriage was over, that he was in love with the woman with whom he was having an affair, and that he and that woman planned to marry. However, the wife testified, the woman decided to return to her own husband. The husband, in turn, returned to the wife and, according to the wife, “pretty much acted perfect” for a time, but, the wife said, the affair had had a “catastrophic, heartbreaking” effect on the marriage.
In April 2010, the wife said, she learned that the husband was having another affair, this time with someone with whom he had worked. She said that the husband told her at that time that their marriage was over and that she asked him for his wedding band and his key to the marital residence. The wife testified that she asked the husband to leave the residence but that he refused, telling her his attorney had told him not to move. The wife said that she filed for a divorce the day after she learned of the husband's 2010 affair, but she stayed in the marital residence about two more weeks. During that two-week period, the wife said, the husband would talk openly on the telephone with the woman with whom he was having the affair, and he continued to refuse the wife's request that he leave the house. After about two weeks, the wife said, she and the parties' child moved out of the marital residence and into a smaller house, and the wife began having to pay rent.
At the time of the trial, the parties owed $292,574 on the first mortgage on the marital residence. They also had a home-equity line of credit with a balance of approximately $54,000. Documentary evidence was introduced indicating that the husband had purchased a house in Daphne (“the Daphne house”) in February 2010, about two months before the wife filed for the divorce. The wife testified that the husband did not tell her about the Daphne house, and her name did not appear on any of the paperwork regarding the house. The wife testified that, after she learned about the Daphne house, the husband told her that he had cashed in a retirement account for the down payment. There was approximately $19,000 in the retirement account. The settlement statement prepared for the purchase of the Daphne house indicated that the husband had made a down payment of $22,391.98. The mortgage balance for the Daphne house was approximately $72,000 at the time of the trial. At the time of the trial, the husband was earning rental income from the Daphne house, and he had offered the renters an option to purchase the house for $117,900.
At the time of the trial, the wife worked at a bank earning an annual income of approximately $59,640. The husband worked for the United States Army Corps of Engineers and had an annual income of approximately $84,575. In addition to their respective jobs, the parties at one time had owned an engraving and personalization shop called Personally Yours Gifts & Accessories, LLC (“PY”). The wife owned 51% of PY; the husband owned 49%. The wife testified that PY never turned a “significant profit” and that it had “a lot of debt.” The wife said that she had filed a claim with BP, an oil company, for revenue PY had lost as a result of the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. She said she had received $15,065 from BP and $72,900 from the Gulf Coast Claims Facility in connection with the oil spill. The wife testified that she had used the money she received as a result of the oil spill to pay PY's expenses, including paying off debt, paying outstanding invoices to vendors, and making payroll. The wife said that after she and the husband separated, the husband told her he wanted nothing more to do with PY. She said that she had closed PY and had sold the furniture, fixtures, and existing inventory for $65,000. The wife testified that, after using the oil-spill money and the money from the sale of the assets of PY, the business was still approximately $20,000 in debt. The evidence was undisputed that, despite being a 49% partner in PY, the husband had not paid anything toward its debt.
In addition to his share of PY, the husband had a second business, Keating & Associates. Through Keating & Associates, the husband wrote grants for government projects, engaged in “project management,” and did “stuff” for an architectural firm and firms he had had contact with in previous jobs. Keating & Associates had no employees other than the husband. The wife testified that Keating & Associates also earned income from assisting BP after the oil spill in the Gulf. The parties' “proposed” tax return for 2010 indicated that Keating & Associates had income of $109,791 that year. The husband said that, because of his full-time job with the Army Corps of Engineers, he did not have the time to devote to the projects he had been working on through Keating & Associates. At the time of the trial, he said, he was not earning an income from Keating & Associates. However, the husband also testified that, a month before the trial, he had become a one-third partner in a venture called Global Infrastructures Systems and Services, which was established to do “energy management work.” He said that he expected to earn a third of any profit derived from that business. The husband has also taught engineering courses at Faulkner University and the University of South Alabama, earning approximately $12,000 annually.
The wife had a retirement account through her employer of approximately $20,409. She testified that, at one time, she had an additional retirement account of more than $60,000, but the parties closed that account and used the proceeds toward the purchase of the marital residence. The husband had numerous retirement accounts at the time of the trial. Those accounts totaled approximately $57,386.
The wife testified that she had been using credit cards to meet her monthly expenses after she and the husband separated. Both parties were questioned extensively regarding their finances, including their debt, the necessity for certain expenditures, the necessity for certain deductions from their respective paychecks, loans, and business profits and losses. Both parties contended that the other had access to money that was unaccounted for in the documents exchanged during discovery.
After the wife filed for a divorce in April 2010, the parties entered into a “Temporary Agreement Pending Final Hearing.” Pursuant to that agreement, which the trial court adopted on June 4, 2010, the husband was to retain possession of the marital residence. He also was to continue to make the payments on the first mortgage on that residence and to pay for all utilities for the marital residence. The husband and the wife were to be equally responsible for the payments on the home-equity line of credit.
The husband and the wife also agreed to “share joint custody of the minor child,” with the wife having primary physical custody subject to the husband's visitation. However, the parties also agreed to evenly divide “all expenses related to the minor child,” with the caveat that
“5. Clothing.
As to those expenses, the husband agreed to reimburse the wife for payments she made on his behalf within 14 days of notification.
After the trial, the trial court entered a judgment divorcing the parties on the ground of adultery. The parties were awarded joint legal custody of the child, and the wife was awarded primary physical custody. The husband was ordered to pay $1,123 per month in child support. In addition, the husband was ordered to pay the wife a total of $17,259.82 in past-due pendente lite child support. However, after a hearing on the husband's motion to alter, amend, or vacate the judgment, the trial court amended the judgment and awarded the wife $8,629.91 in pendente lite child support. That figure represents half of the original award, to reflect the parties' agreement.
The trial court ordered that the marital home be sold...
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...adultery, a finding of which can affect issues such as property division and alimony in a divorce action. See Keating v. Keating, 122 So.3d 1259, 1267 (Ala.Civ.App.2013) (the relative fault of the parties in contributing to the breakdown of the marriage is a factor the trial court may consi......