McCrimon v. McCrimon

• Decision Date: 22 April 2016
• Docket Number: 2140893.
• Parties: Paul B. McCRIMON v. Marion E. McCRIMON.
• Court: Alabama Court of Civil Appeals

207 So.3d 49

Paul B. McCRIMON

v.Marion E. McCRIMON.

2140893.

Court of Civil Appeals of Alabama.

April 22, 2016.

Jonathan Ashley Spann of Morrison & Spann, LLC, Columbiana, for appellant.

J. Frank Head of Ellis, Head, Owens & Justice, Columbiana, for appellee.

THOMPSON, Presiding Judge.

Paul B. McCrimon ("the husband") appeals from a judgment of the Shelby Circuit Court ("the trial court") divorcing him from Marion E. McCrimon ("the wife").¹ In the judgment, entered on February 22, 2015, the trial court divided the parties' marital assets and ordered the husband to reimburse the wife for certain expenditures. The husband was also ordered to pay child support, including a portion of the parties' minor child's college expenses, until the child reached the age of 19 in April 2015.

The record indicates the following. The parties were living together when their only child ("the child") was born in 1996. They lived apart and moved back in together a number of times. During one of the times they lived apart, the husband married another woman, but that marriage was apparently brief. In December 2003, the parties married each other. Even after the marriage, however, the parties continued their pattern of separating and reconciling. The wife testified that she learned that, during the parties' marriage, the husband had purchased the vehicle that his previous wife was driving. The husband testified that he did not purchase the vehicle, a 2006 Pontiac Grand Prix, for his previous wife, and he denied that she ever drove the vehicle. When shown certain bank statements, the husband acknowledged that his previous wife was making payments on the Grand Prix, explaining that she owed him money "from way back."

On September 13, 2012, the husband and the wife had an argument that led to their permanent separation. The wife testified that they had been arguing in the days leading up to September 13, when the husband accused the wife of putting water in the gas tank of his truck. The wife denied doing so. The wife testified that the husband told her he was going to retrieve a shotgun from his father's house next door "to make sure you leave here." The wife said that she was preparing for work at the time and that, as she left the marital residence, the husband was standing outside with a shotgun, which he fired. The wife said that she heard the shotgun pellets hitting the cement around her. As she left the house in a vehicle, the wife said, the husband shot again and hit the back end of the vehicle. She said that the husband fired the shotgun several times.

The husband testified that, when the wife did not leave the house when he told her to, he went to his father's house and retrieved the shotgun. He said that his intention was not to kill the wife but to make her leave the marital residence. He said that he shot into the air from about 50 to 100 yards away from the wife. The husband denied that he fired the gun more than once or that he aimed it toward the vehicle the wife was driving. However, the child testified that she was leaving the house in a vehicle just ahead of the wife. She said that, from her sideview mirror, she saw the husband fire the shotgun toward the wife's vehicle. The child also said that the husband fired the gun several times from a distance close enough to hit the wife's vehicle. The child said that there were pellet marks on the wife's vehicle.

The wife testified that she had not been to the marital residence since the September 13, 2012, incident. She said that members of the husband's family brought her clothing to her. The wife asked the child to bring her purses to her, but, she said, when the child retrieved them, they were stained from having been placed in the trash. Other items belonging to the wife also had been placed in the trash, including her class ring. The wife was able to retrieve a jewelry box from the marital residence. Since September 13, 2012, the wife said, she has been living with her mother. The husband has remained in the marital residence. The child lived with the wife until leaving for college in August 2014. The child testified that she visits with the husband but has never stayed with him overnight.

Before the parties married, the wife owned her own house. After they married, the parties lived in the wife's house and she continued to make the mortgage payments on that house. In the mid–2000s, at a time when the parties were separated, the wife's house burned. The husband was at that time living in a mobile home that he had purchased. The wife testified that the house and its contents were a total loss, and in December 2006 she received insurance proceeds for the loss in the amount of $109,769.14. The wife used $30,000 of the insurance proceeds as a down payment on the marital residence. In addition, the wife said, money from the insurance proceeds was used to buy most of the furnishings for the marital residence. She also gave the husband $15,000 with which he paid off the indebtedness on his truck, among other things. An additional $20,000 was placed in the parties' joint bank account. The wife testified that the husband moved the $20,000 into his individual account without telling her.

The husband testified that he moved the money into his own account, where he also deposited his income, because, he said, the wife spent $1,200 without telling him. When asked what he did with the money in his individual account, the husband testified that he spent it on things like car insurance and family vacations. He said that, in the past, he would give the wife money from the account at Christmas, he would withdraw $1,000 at a time, or he would use money from the account "to catch up some of the bills." He said that he also moved $7,000 from the joint account into his "personal account" and used $5,000 of the $7,000 to make the down payment on the automobile he intended the child to drive. At the time of the hearing, however, the husband had sold that automobile. When the parties separated in September 2012, the husband's individual account contained $10,065.09.

The husband testified that he used his money to purchase the property where the marital residence was located. The property had been part of his family's farm. The husband also testified that he had made all of the mortgage payments on the marital residence since 2008. The parties differed on their estimates as to the value of the marital residence. The parties paid $194,000 for the marital residence, and an appraisal of the marital residence conducted during the course of the divorce action estimated the market value of the house at the time of the trial to be $185,000. The wife testified that she believed the market value of the house was between $185,000 and $194,000 and that the remaining debt on the mortgage was approximately $131,000. On the other hand, the husband presented evidence indicating that the tax assessor's value of the marital residence was $157,000, and he testified that, in his opinion, that amount was the market value of the marital residence. The husband testified that, at the time of trial, $129,000 was owed on the marital residence.

At the time of the trial, the wife worked full time as a school nurse at Shelby County High School. She also held a part-time job at a retirement community. Before beginning her employment at the high school, the wife had worked at Trinity Medical Center ("TMC") earning approximately $38,000 annually. She said that, because she was a licensed practical nurse ("LPN") and not a registered nurse ("RN"), she had to leave that position when the facility decided to use only RNs. The wife said that she did not earn as much in her current positions as she had with TMC. The husband testified that his income in 2008 was $32,791. The evidence was undisputed that the husband has a full-time job and that he has worked for the same employer for a number of years. However, there is no evidence in the record indicating the type of work the husband performs. It appears from comments made at the outset of the trial that each party had submitted Form CS–41 "Child–Support–Obligation Income Statement/Affidavit," but this court has searched the record, including the trial exhibits, and those forms are not contained in the record on appeal.

On February 22, 2015, the trial court entered its judgment divorcing the parties. In the judgment, the trial court awarded the marital residence to the husband but awarded the wife $40,000 for her interest in the equity in the house. The parties' personal property and vehicles were divided in accordance with a list the wife had submitted to the trial court. The list included a division of furniture, household items, televisions, and various collectibles. The wife received a 2007 GMC Envoy sport-utility vehicle. The husband received a 2003 Southern Comfort GMC Sierra pickup truck, a 1995 Ford Explorer sport-utility vehicle, and "use" of a Toyota pickup truck. The judgment, which was based on the wife's list, also purported to award the husband the mobile home he had purchased during an earlier separation from the wife; however that mobile home had been sold in 2012 for $21,000. Pursuant to the list, each party was also awarded his or her retirement account.

As to child support, the trial court ordered the husband to pay $574 a month, the same amount he was paying pursuant to a pendente lite support order, for the two months the child would remain a minor. The trial court also ordered the husband to pay the wife $3,668 for his share of the child's college expenses while she was a minor. That award is discussed more fully later in this opinion.

In addition to dividing the parties' marital property and awarding child support, the trial court ordered the husband to make a number of specific payments to the wife to reimburse her for certain things, such as two months' worth of unpaid pendente lite child-support payments; half the medical expenses the child had incurred that were not...