Kreitzberg v. Kreitzberg

• Decision Date: 01 March 2013
• Docket Number: 2110920,2111066
• Parties: Ernest Kreitzberg v. Myra Kreitzberg
• Court: Alabama Court of Civil Appeals

Ernest Kreitzberg

v.Myra Kreitzberg

2110920

2111066

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2012-2013

Date: March 1, 2013

Notice: This opinion is subject to formal revision before publication in the advance sheers of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 30C Dexter Avenue, Montgomery, Alabama 361C4-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeals from Baldwin Circuit Court

(DR-09-900369 and DR-09-900369.01)

THOMAS, Judge.

These consolidated appeals are taken from judgments of the Baldwin Circuit Court dividing the marital property of Ernest Kreitzberg ("the husband") and Myra Kreitzberg ("the wife") and reevaluating the husband's alimony obligation onremand from this court's decision in Kreitzberg v. Kreitzberg, 80 So. 3d 925 (Ala. Civ. App. 2011) (appeal no. 2110920), and finding the husband to be in civil contempt for his failure to pay the wife any amount of alimony during the pendency of the appeal in Kreitzberg (appeal no. 2111066). This court summarized much of the pertinent factual and legal background in Kreitzberg, 80 So. 3d at 926-30, as follows:

"After nearly 35 years of marriage, the husband filed a complaint for a divorce in the trial court on July 9, 2009, claiming incompatibility of temperament and an irretrievable breakdown of the marriage. The wife answered the complaint and counterclaimed for a divorce on September 23, 2009. In her counterclaim, the wife alleged that the husband had physically and emotionally abused her during the course of the marriage. On March 9, 2010, the husband amended his complaint for a divorce to include an allegation that the wife had physically and emotionally abused him during the course of the marriage. The wife answered the amended complaint and denied the allegations of abuse. The parties conducted discovery.

"On October 6 and 18, 2010, the trial court conducted a trial regarding the husband's divorce complaint and the wife's counterclaim for a divorce. The husband and the wife were the only witnesses to testify during the two-day trial.

"The husband testified at trial that he had received an inheritance from both his mother and his aunt. Specifically, he testified that he had inherited 2,484 shares of ExxonMobil Corporation stock from his mother after her death on January 30, 1997. He stated that those shares of stock had beentransferred into his name alone. He further testified that a program called 'Computer Share' manages the stock and that that program continually reinvests any dividend income that the stock produces. He stated that the wife's name was never on his stock account with ExxonMobil.

"In addition to the ExxonMobil stock, the husband testified that he had inherited $99,712 in cash from his mother. He stated that, upon receipt of the cash, he immediately had taken the money to the bank, had sent $8,000 of the money to the United States Treasury to pay taxes on the inheritance and had placed the remaining $91,712 into a certificate of deposit ('CD'). He testified that he had purchased that CD at the State Bank of Countryside in Countryside, Illinois. He further testified that the CD had been placed in his name only. The husband testified that he had continually reinvested the money in the CD, along with any investment income from the CD, in the form of a CD until 2005. He testified that in 2005 he had moved the CD from the State Bank of Countryside to AmSouth Bank ('AmSouth') in Fairhope and that the CD had remained in the form of a CD with AmSouth from 2005 until 2008. The husband testified that the CD at AmSouth was placed in his name alone and that all the interest the CD accrued was immediately reinvested.

"The husband testified that in 2008 he had withdrawn all the money in the CD, which had grown to $133,312.25, and had purchased ExxonMobil stock with it. He also stated that any dividend income derived from the stock was immediately reinvested.

"Other than the stocks and cash, the husband also testified that he had inherited $23,000 in United States savings bonds from his mother. He stated that that money was held in the form of savings bonds in his name until 2005, when he redeemed the savings bonds at AmSouth. The husband testified that, after he redeemed the savings bonds,he placed the money into a money-market account held jointly in his and the wife's names. He stated that he had placed the money in the joint money-market account in order to pay taxes on the investment income his inherited money and stocks had generated because the couple filed joint tax returns.

"The husband also testified that he had inherited assets from his aunt. He testified that she had died in 2008, that he had inherited a total of $87,000 from her estate, and that he had received the money in two separate payments -- $60,000 as an initial payment and another $27,000 as the final payment. The husband testified that he had deposited the $60,000 in an account he had opened in his name at Royal Bank of Canada ('RBC'). He testified that, after having placed the money in the RBC account, he immediately wrote a check for the entire $60,000 to ExxonMobil to purchase 827 shares of stock. He testified that all dividend income derived from that stock was automatically reinvested.

"The husband testified that he had received the final payment of $27,000 in October 2009. He stated that he had placed that money in a personal checking account at RBC in his name and that he had then transferred that money to ExxonMobil to purchase additional shares of stock. He further stated that all the dividend income from that stock was automatically reinvested. He testified that he had never sold any of his ExxonMobil stock or withdrawn any money from his stock account with ExxonMobil.

"The husband also testified that the dividend income from the ExxonMobil stock was listed on the parties' joint tax returns. He stated that in some years the parties had a tax liability upon which they paid taxes to the United States government. He testified that the total amount of taxes the parties had paid on the ExxonMobil dividends was $8,560 and that the total taxes they had paid after redeeming the savings bonds was $10,980. He further testifiedthat the total taxes the parties had paid from 1997 until 2009 on any income derived from inherited assets was $32,253.

"He testified that the assets of the marital estate included a 2003 Saturn automobile, a scooter, a rowboat with a motor worth approximately $1,000, a 1978 Catalina sailboat worth approximately $2,000-$3,000, and items of personal property. Additionally, he testified that the parties owned their home in Fairhope and that it did not have an outstanding mortgage on it. He opined that the value of the marital residence was $225,000. He stated that he had come to the $225,000 value by considering a large number of comparable homes that had been sold in the parties' neighborhood.

"The husband also testified that he had an individual retirement account ('IRA') with a balance of around $36,000 at RBC and that the wife also had her own IRA and that the parties had a joint money-market account containing $210,000. He further testified that the parties had a joint checking account with a balance of approximately $1,300. He stated that the parties lived off of the money in the joint checking account. He testified that the joint checking account is funded by his Social Security benefits and his two retirement accounts. Specifically, he stated that he has a pension with JI Chase Company from which he receives approximately $363 per month and a pension with Allis Chalmers Manufacturing Company from which he receives approximately $580 per month Additionally, he stated that his Social Security check of $1,678 per month is also deposited into the account while the wife's Social Security check of approximately $598 is deposited into her own separate checking account.

"The husband testified that he had withdrawn a total of $16,000 from the parties' joint checking account to pay his attorneys throughout the divorceaction. He stated that he did not expect the wife to pay for his attorney fees but that he felt the parties should split the cost of the attorney fees in the divorce action. He also asked the court to award each party 50% of the money-market account containing $210,000. Additionally, he stated that he would like the court to award each party 50% of the parties' monthly joint income, which comprises his JI Chase pension, his Allis Chalmers pension, his Social Security check, and the wife's Social Security check. This division would provide each party with roughly $1,600 per month. He also stated that he did not mind if the wife was awarded the 2003 Saturn automobile but that he would like the parties' Catalina sailboat, the scooter, and the rowboat.

"The husband testified that he had never committed any act of domestic violence against the wife. However, he testified that the wife had committed acts of domestic violence against him on two separate occasions. He stated that the wife had thrown a plate that struck his head, causing the police to be called, that resulted in the wife's being arrested for domestic violence on July 4, 2009. He also testified that the wife had struck him in the eye while he was driving. He testified that he did not notify the police of this incident but that he did go to the hospital to seek medical attention as a result of the incident. He stated that the wife had called the police regarding the parties' disagreements, but, he said, he had never been arrested.

"The husband testified that the wife's relationship with her daughter, Michelle Kainz, and Kainz's grandchild had created problems in the marriage. He opined that Kainz does not like him and that she plots against him. He testified that he did allow the wife to have private telephone conversations with Kainz,

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