Knight v. Knight

• Decision Date: 29 July 2016
• Docket Number: 2150102.
• Citation: Knight v. Knight, 226 So. 3d 688 (Ala. Civ. App. 2016)
• Parties: Gregory Lovett KNIGHT v. Mary Jean KNIGHT
• Court: Alabama Court of Civil Appeals

226 So.3d 688

Gregory Lovett KNIGHT

v.Mary Jean KNIGHT

2150102.

Court of Civil Appeals of Alabama.

July 29, 2016.

Special Writing Issued on Denial of Rehearing Oct. 14, 2016.

Certiorari Denied Jan. 13, 2017

Alabama Supreme Court 1160076.

Bill G. Hall and Catherine E. Garland of Bill G. Hall, P.C., Huntsville, for appellant.

Fulton S. Hamilton, Huntsville, for appellee.

THOMPSON, Presiding Judge.

Gregory Lovett Knight ("the husband") appeals from a judgment divorcing him from Mary Jean Knight ("the wife"), dividing the marital property, and awarding the wife periodic alimony, among other things.

The record in this case indicates the following. The parties had been married for 40 years at the time they separated and for 43 years at the time of the trial. At the time of the trial, the husband was 60 years old and the wife was 62 years old. During the marriage, they had four children together. At the time of the trial, the children ranged in age from 42 to 22 years old.

The evidence indicates that the husband enlisted in the United States Army after the parties married; thus, all of his military-retirement benefits were earned during the course of the marriage. Documents contained in the record indicate that, before retiring, the husband attained the rank of sergeant major. The only higher enlisted rank is the Sergeant Major of the Army, which is held by only one person at a time.

During the husband's Army career, the wife moved from post to post with him, including three tours in Germany. The wife testified that she had worked at a factory when the parties were newly married and had also worked in food service. She reared the children and did not work outside the home for most of the marriage. The wife testified that, for the last 15 years of the marriage, she had worked for Walmart and was able to transfer to other Walmart stores when the parties moved. The wife had attended a junior college; the husband had earned both a bachelor's degree and a master's degree during the marriage.

At the time of the trial, the wife was a department manager at a Walmart store, earning a gross income of approximately $1,166 every two weeks. The wife's income-tax return indicated that she earned a total gross income of $34,638 in 2014. However, the wife added that she had been having trouble with her joints. Because her job required her to stand, lift, and bend, she testified, she could not "really do the work that my job requires me to do at Walmart." Therefore, the wife said, she would be stepping down from the position of department manager to become a sales associate, and her income would decrease as a result.

The husband was a civilian employee with the Department of Defense. He also operated a tax-preparation business "on the side" from which he said he earned little or no income because some of his work was volunteering to prepare tax returns for low-income people. The husband testified that, after his deductions, his adjusted gross income for 2014 was $124,766. He said that his total gross annual income, including his military-retirement pay, was approximately $160,000. Therefore, during the last year of the marriage, the parties had a combined gross income of approximately $190,000. The husband acknowledged that, because of the length of the marriage, the wife was "authorized" to receive half of his military-retirement income. Even when that amount was deducted from his income, the husband said, he would still be earning approximately $120,000 annually. The husband testified that he had suffered a mild heart attack during the litigation of this matter and that he suffered from depression and anxiety. The husband said that, although he had not been advised against working, he planned on retiring, which, he said, will affect his income.

The wife testified that, during the marriage, the parties used the husband's income to pay rent, utilities, and other household bills, including grocery bills. She was able to use her income to buy "something pretty for the house." She also said that she paid for her own clothes and bought expensive purses. The husband used to buy her expensive perfume, the wife said. Although the wife had purchased purses and perfume for herself since the parties separated, the wife said, she had had to charge the purchases. Evidence indicated that the wife had approximately $1,000 in credit debt at the time of the hearing.

Since the parties separated, the wife testified, she has had to change the way she lives, adding that she "was kind of crippled when [the husband] left" because she had to pay household bills from her own income. The wife testified that if she were awarded $3,000 a month in periodic alimony, she "can still live the way I lived when [the husband] was with me." In fact, the husband testified that he had "agreed to give [the wife] some alimony," but, he said, he could not maintain that obligation once he retired.

Aside from the husband's military-retirement benefits, the largest marital asset of the parties is the marital residence. The husband and the wife both testified that, at the time of the trial, the balance owed on the marital residence was approximately $73,000. The husband testified that the monthly mortgage payment was $724.80. The tax assessment for the 2014 tax year appraised the marital residence at $147,700.

The husband testified that he had a number of financial accounts, including a federal thrift-savings-plan account that had a balance of $34,588.33 as of December 31, 2014, and to which the husband had continued to contribute monthly; a Charles Schwab account, which, in February 2015, had a balance of $20,643.11; and a Roth Individual Retirement Account ("IRA") that had a balance of $19,354.01 in February 2015 and to which the husband continued to contribute monthly. The husband testified that he had borrowed a total of $13,130 from the IRA in 2013 and 2014. The husband also had a federal civil-service retirement plan; however, it is not clear from the record the balance of the civil-service retirement plan. The husband and the wife had a joint investment account that had a balance of $3,079.83. The husband testified that he believed that he and the wife should each have a one-half interest in that investment account.

The wife testified that she had a 401(k) account at Walmart that had a balance of approximately $31,000 in September 2012, but, she said, she had removed $10,000 from that account and placed it in an account at Merrill Lynch. The wife also had a Walmart-associate stock plan valued at $25,265 on April 10, 2015, a Redstone Arsenal Credit Union money-market account with a balance of approximately $16,000, a credit-union savings account with a balance of approximately $2,000, and an investment account with a balance of approximately $20,670. The wife said that she and the husband held another investment account together that had a balance of $24,168.

At the time of the trial, the husband drove a 2004 Chevrolet Suburban sport-utility vehicle, and the wife drove a 2006 Honda Pilot sport-utility vehicle. No debt was owed on either vehicle.

On June 18, 2015, the trial court entered a judgment divorcing the parties. In the judgment, the trial court awarded the husband the marital residence, but ordered him to pay the wife $25,000, which the trial court found represented half of the equity that could be derived from the sale of the marital residence. The trial court also awarded the wife one-half of the husband's disposable military-retirement pay each month, as well as one-half of their joint investment account with a balance of $24,168. Each party was awarded the financial accounts held in his or her name, meaning the husband received accounts totaling approximately $87,500, including the $13,000 he had borrowed from his IRA, and the wife received financial accounts totaling approximately $93,000. Each was ordered to be responsible for his or her own debt. Each party was awarded certain personal property and the vehicle he or she was driving at the time the judgment was entered. The value of that personal property is not contained in the record. The husband was ordered to continue to maintain the wife's health-insurance coverage "until such time as [the] wife can become independently insured" under her own primary and secondary health-insurance plans similar to those under which she was covered during the marriage, and he was also ordered to continue to maintain the existing $100,000 life-insurance policy, or a policy with the equivalent face value, as long as the husband was obligated to pay alimony to the wife. Finally, the trial court ordered the husband to pay the wife $2,000 a month in periodic alimony.

Both parties filed motions to alter, amend, or vacate the judgment. On September 15, 2015, after a hearing on the motions, the trial court amended the judgment to order the wife to vacate the marital residence within 30 days. All other claims the parties made in the respective motions were denied. The husband filed a timely notice of appeal.

The husband contends that the trial court abused its discretion in awarding the wife periodic alimony because, he says, the wife failed to establish the standard of living she had during the marriage; the trial court did not consider the wife's earning capacity and assets; the award leaves the husband "financially crippled"; and the evidence does not support an award of alimony. Because these contentions are interrelated, we will discuss them together.

It has long been the law that both "the award and [the] amount of periodic alimony are matters which lie within the discretion of the trial court and may be reversed upon an appeal only for a clear abuse of the trial court's judicial discretion." Scott v. Scott, 460 So.2d 1331, 1332 (Ala.Civ.App.1984) ; Groenendyke v. Groenendyke, 491 So.2d 959, 961 (Ala.Civ.App.1986) (same); and Holmes v. Holmes, 409 So.2d 867, 868 (Ala.Civ.App.1982) (same).

" ' " 'A trial court's determination as to alimony

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