Myers v. Myers, 2160391
| Decision Date | 30 March 2018 |
| Docket Number | 2160391 |
| Citation | 260 So.3d 55 |
| Parties | Carl David MYERS v. Kimberly Berry MYERS |
| Court | Alabama Court of Civil Appeals |
Thomas H. Nolan, Jr., Mobile; and Joshua B. Boone of Claude D. Boone, P.C., Mobile, for appellant.
Grady R. Edmondson, Mobile, for appellee.
Carl David Myers ("the husband") has appealed from a judgment of the Mobile Circuit Court ("the trial court") that, among other things, divorced him from Kimberly Berry Myers ("the wife"). The husband challenges the judgment insofar as it awards alimony to the wife, divides the parties' property, orders the husband to pay the private-school tuition for the parties' minor child, and fails to award joint legal custody of the child to the parties. We reverse the judgment and remand the cause.
The parties were married in 1993 and had two children born during their marriage, L.M. ("the minor child") and W.M. ("the oldest child"). Only L.M. remained a minor at the time of the divorce proceedings.
The husband filed a complaint for a divorce in September 2015 in which he sought, among other things, an equitable division of the parties' property and an "appropriate determination concerning custody of and visitation with the parties' minor child." The wife filed an answer and a counterclaim for a divorce in which she asserted, among other things, that she "is the fit and proper person to be entrusted with [the minor] child's care and custody subject to supervised visitation" with the husband.
In December 2015, after holding an "office conference," on the parties' pending motions regarding visitation, the trial court granted the husband supervised visitation with the minor child. The trial court also ordered the family to submit to a psychological evaluation.
The trial court held a trial on September 30 and October 4, 2016. The testimony indicated that the husband had developed a successful veterinary practice during the parties' marriage. The husband testified that he gave the wife approximately $14,500 each month to deposit in the parties' joint bank account and that all of their expenses were paid from that account. The husband testified that, after he filed for a divorce, he began depositing $3,000 into the parties' joint account but that he had continued to pay all of their joint expenses. The husband testified that marital problems began in May 2015, when he told the wife to pay the oldest child's college tuition out of their savings account rather than his business account. The husband testified that "there was never enough" money for the wife during the marriage.
The husband was unable to answer many questions regarding his income or other financial matters and testified that his accountant had handled those issues. The accountant's testimony indicated that the husband earns the Social Security limit each year, which she testified is currently $118,000, but that he also receives stockholder dividends and rental income of $225,000. In 2015, the husband earned an income of $414,000. The evidence indicated that at the time of the trial, the husband had financial accounts totaling approximately $1 million.
The husband testified that he and the wife attended marriage counseling three times but that the wife had refused to go back to counseling. According to the husband, the wife and the children left the marital residence and moved in with the wife's parents in July 2015. The husband testified that he filed for a divorce in September 2015 because the wife had "done everything in her power to alienate my kids." The husband testified that he had been visiting with the minor child at a family-visitation center during the divorce proceedings and that it had been "terrible." The husband testified:
The wife testified that the husband had provided financially for the family during the marriage and that she had stayed home with the parties' children for the majority of the marriage. The wife testified that she believed that the husband had had an affair approximately 10 years before the divorce action was commenced but that they had remained together. The wife also testified that the husband had "rage" problems, that he would become angry and had thrown items, but that he had not directly physically harmed her or the children.
The wife testified that the husband would give her three checks totaling approximately $14,500 each month and that she would deposit the checks into their joint bank account. The wife testified that the husband had handled all the financial matters during the marriage and that she did not know how much income he earned until the divorce proceedings. According to the wife, the husband had not been very involved in the children's lives. The wife testified that, beginning in 2005, the husband was gone every weekend to participate in clay-shooting tournaments and that he began drag racing in 2012. The wife also testified that the husband, in recent years, had begun spending the majority of his time at work and at a home the parties owned in Dauphin Island. The oldest child also testified that the husband had often been absent from her and the minor child's lives and that she had "no relationship" with the husband. The oldest child recounted a few instances in which, she asserted, the husband had displayed "rage" and bizarre behavior.
The wife testified that she had relied on credit cards to pay her expenses since the divorce proceedings began. She testified that, although she intended to secure employment, she was not sure if or when that would happen. The wife asked the trial court to award her $3,000 in monthly child support, $10,000 in monthly periodic alimony, and half of all the parties' and the husband's financial accounts, among other things.
On October 13, 2016, the trial court entered an order divorcing the parties. That order provides, in pertinent part:
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