Long v. Long, 2110474.

Decision Date19 October 2012
Docket Number2110474.
Citation109 So.3d 633
PartiesRichard LONG v. Karen LONG.
CourtAlabama Court of Civil Appeals

OPINION TEXT STARTS HERE

A. Riley Powell IV of The Powell Law Firm, P.C., Gulf Shores, for appellant.

Tanya D. Hallford, Foley, for appellee.

MOORE, Judge.

Richard Long (“the husband”) appeals from a judgment of the Baldwin Circuit Court (“the trial court) divorcing him from Karen Long (“the wife”), dividing the parties' marital property, awarding sole custody of the parties' remaining minor child to the wife, and ordering the husband to pay child support and periodic alimony. We affirm in part and reverse in part.

Procedural Background

On March 24, 2011, after a 26–year marriage and the birth of 2 children, the husband filed a complaint for a divorce from the wife; he alleged that the parties had become incompatible. The wife filed a counterclaim for a divorce alleging that the husband had committed adultery and that the parties had become incompatible. She sought sole custody of the parties' two children; child support; postminority support for J.L., the parties' oldest child; and periodic alimony. The wife also moved for an award of pendente lite support pending the entry of a final judgment.

On September 13, 2011, the trial court commenced an ore tenus hearing on the parties' competing claims for a divorce. On September 22, 2011, the trial court ordered the husband to pay $2,700 per month in pendente lite child support pending the entry of a final judgment. The trial court also recognized that the marital home had gone into foreclosure and that, as a result, the wife and the children would have to vacate the marital home in a few days; the trial court allowed the wife to sell the contents of the marital home, to make an accounting of the proceeds, to utilize one-half of the proceeds, and to pay into court the remaining proceeds.

On October 3, 2011, the trial court completed the ore tenus hearing on the parties' competing claims for a divorce, and on October 25, 2011, the trial court entered its final judgment. In that judgment, the trial court, among other things, divorced the parties, awarded the wife sole legal and physical custody of the parties' minor child, B.L.; 1 ordered that the husband was entitled to visit with B.L. a minimum of three occasions per month, with the times and duration of those visits to be set by mutual agreement of the parties; ordered the husband to pay $438 as child support each month; ordered the parties to equally share in the postminority educational expenses for J.L., subject to certain specified limitations; specified that the husband owed a child-support arrearage of $1,314 for the months of June, July, and August 2011 and a child-support arrearage of $2,200 for the month of September 2011, and specified that, after applying one-half of the proceeds received from the sale of the household contents to the husband'stotal arrearage, the husband's remaining child-support arrearage was $915.87; 2 ordered the husband to pay $1,000 per month as periodic alimony to the wife; allowed the wife to sell various items belonging to the husband that were being held in storage, with the first $916 received from that sale to be applied to the husband's child-support arrearage and the remainder of the proceeds to be awarded to the wife as a property award; ordered the parties to sell a parcel of property held jointly in their names, with the proceeds to be distributed equally between them; ordered the parties to split certain specified credit-card debts equally between them, but ordered that any other debts not specifically addressed were the responsibility of the individual or individuals in whose name those accounts then existed; and awarded the parties various automobiles and motorized vehicles and any debts associated with those vehicles.

On November 3, 2011, the husband moved the trial court for a new trial or to alter, amend, or vacate the judgment, pursuant to Rule 59, Ala. R. Civ. P. On that same date, the husband moved the trial court to stay enforcement of the October 25, 2011, judgment and to set a reasonable supersedeas bond. Additionally, on November 3, 2011, the husband filed a motion for relief from the judgment, pursuant to Rule 60, Ala. R. Civ. P., asserting that the wife had testified untruthfully regarding certain facts during the ore tenus hearing. On January 12, 2012, after a hearing, the trial court denied the husband's motion for a new trial or to alter, amend, or vacate the judgment and his motion for relief from the judgment. The trial court, however, granted the husband's motion for a stay of the judgment, conditioned upon his posting a bond in the amount of $13,000 with the trial-court clerk; the trial court specified that the bond amount was to secure his periodic-alimony obligation for 13 months but was not intended to address his child-support obligation, which, the trial court stated, the husband was to continue to pay during the pendency of his appeal.3 The husband timely appealed.

Evidentiary Background

The wife testified that she and the husband had married in 1985 and that the marriage had produced two sons: J.L., who, at the time of the final hearing, was 19 years old, and B.L., who, at the time of the final hearing, was 17 years old. At the time of the final hearing, B.L. continued living with the wife in the marital home, while J.L. had moved to Auburn to attend college. The wife testified that she and J.L. had obtained student loans to pay his college tuition and expenses. According to the wife, the husband had given J.L. $1,300 toward his college expenses.

The wife testified that she had been seriously ill in 2010. The wife also testified that the husband and his paramour, Laurie Kittrell, had been discovered kissing on the beach in October 2010. The wife testified that she underwent abdominal surgery in December 2010 to remove 12 inches of her intestines and that, in January 2011, the parties' oldest son had left for college. The wife testified that, two days later, the husband had confessed to her that he “was in adultery” and that he had moved out of the marital home.

The wife also testified that she had found a letter dated February 2011 and written by the husband to Kittrell; in that letter, which the wife introduced into evidence, the husband professed his 10–year love for Kittrell. The wife admitted that she had no concrete evidence to establish that the husband had engaged in sexual intercourse with Kittrell or anyone else, and she acknowledged that the husband suffered from erectile dysfunction.

The wife testified that she was employed as an administrator at Calvary Christian Learning Center and that, since the parties' separation in January 2011, she also had been working two part-time jobs to help with the expenses of the marital home and the children. She was working at “Bath Junkie” earning $8.50 per hour or approximately $45 per week. She also was working at “Packy's All Services” earning $9 per hour or approximately $50 per week. The wife acknowledged that the CS–41 child-support-obligation income-statement form, seeRule 32, Ala. R. Jud. Admin., she had submitted to the trial court did not accurately reflect her part-time employment income.

The wife introduced into evidence copies of her 2009 and 2010 W–2s from Calvary Christian Learning Center. Those documents indicated that the wife had earned $7,606.85 in 2009 and $28,663.16 in 2010. The wife testified that, at the time of the final hearing, her salary at Calvary Christian was $30,000 and that she expected to make a little more than that during 2011 because of her two part-time jobs. She testified that she was planning to vacate the marital home a few days after the final hearing to move into a rental house; she testified that the rental house would cost her $1,000 per month.

The wife testified that, during the marriage, the husband had been employed as the senior pastor of Christian Life Church in Orange Beach and that his total compensation package had been $87,600 per year. According to the wife, the husband had left the marital home in January 2011 and the church had asked him to resign around the same time. The wife believed that the church had given the husband a severance package of his full salary for six months when he resigned. According to the wife, after the husband's resignation, she had received money from the church in only February, March, April, and May 2011. She testified that, before the husband's resignation, the church had been paying him $2,700 per month as a housing allowance and an additional $1,019 every two weeks. The wife testified that, after the husband's resignation, she had received less than she had expected and for a shorter period than she had expected.

The wife testified that the marital home had been lost to a foreclosure. The wife testified that the monthly mortgage payments on the marital home had been $2,700 and that she had not made those mortgage payments after January 2011. She estimated that the parties had owed $202,000 on the marital home and that the value of the marital home had been “around $237,000 or $250,000.” The wife testified that she had tried to sell the marital home but that she had had no success.

The wife acknowledged that the trial court had ordered the parties to maintain the status quo and to pay all recurring monthly bills pending the entry of a final judgment; the wife testified that she had paid all the other recurring bills but that she had not paid the mortgage payments. According to the wife, she had discussed the mortgage payments with the husband, and, she said, he had instructed her not to pay them. The wife also acknowledged that the trial court had ordered the parties not to dispose of marital assets. Although the wife admitted that she had readied the contents of the marital home to conduct an estate sale, she had not held that sale at the time of the final hearing. The wife testified that the contents of the...

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