Poole v. Poole

• Court: Alabama Court of Civil Appeals
• Writing for the Court: DONALDSON, Judge.
• Citation: Poole v. Poole, 212 So.3d 244 (Ala. Civ. App. 2015)
• Decision Date: 15 May 2015
• Docket Number: 2130678.
• Parties: Michael Sheldon POOLE v. Melanie Holley POOLE.

212 So.3d 244

Michael Sheldon POOLE

v.Melanie Holley POOLE.

2130678.

Court of Civil Appeals of Alabama.

May 15, 2015.

Rehearing Denied August 7, 2015.

Certiorari Quashed June 10, 2016.

Alabama Supreme Court 1141253.

Lindsey Mussleman Davis of Holt, Mussleman, Morgan & Alvis, Florence, for appellant.

Terry L. Mock and Andrew L. McGee, Tuscumbia, for appellee.

DONALDSON, Judge.

Michael Sheldon Poole ("the husband") appeals from a judgment of divorce entered by the Lauderdale Circuit Court ("the trial court") that, among other things, awarded Melanie Holley Poole ("the wife") a portion of the husband's retirement accounts, granted the wife periodic alimony, awarded the wife alimony in gross, restrained the husband from having contact with the wife, and found the husband in criminal contempt of court. We affirm the portions of the judgment finding the husband to be in contempt and restraining the husband from contacting the wife. Because we find that insufficient evidence was presented regarding certain retirement assets to support the property division, we reverse the trial court's judgment insofar as it distributed the marital estate, including the awards to the wife of periodic alimony and alimony in gross, and we remand the cause to the trial court for further proceedings consistent with this opinion.

Facts and Procedural History

The parties were married in August 1986. The parties had two children who had reached the age of majority before the divorce action was filed. According to the testimony, the marriage began to fail in 2012 when the husband engaged in a pattern of erratic and harassing behavior directed toward the wife. The wife testified that the husband had accused her of having affairs, that he had taken and hidden her automobile, that he had locked her out of the house at night, that he had placed his hands around her neck while threatening to break her neck, and that he had turned off the power to the marital residence at the main breaker, which was located behind a locked door to which only the husband had a key. She testified that, as a result of the husband's harassment, she left the marital residence to live with her parents. She testified that, after she left the marital residence, the husband placed locks on certain doors within the residence.

On November 15, 2012, the wife filed a petition for protection from abuse in the trial court, which was docketed as case no. DR–12–601, after an encounter with the husband in the parking lot at her place of employment. The wife testified that the husband had approached her, had presented her with papers for an uncontested divorce, and had threatened to make her wish she was dead if she did not sign the papers. The trial court granted an ex parte protection order on November 16, 2012, and set the matter for a hearing. Following the hearing, the trial court entered a protection order enjoining the husband from threatening to commit or from committing acts of abuse against the wife and restraining the husband from contacting the wife. The trial court directed that the judgment would remain in effect until December 10, 2013. The husband appealed that judgment to this court. By an unpublished order, we dismissed that appeal for lack of prosecution. Poole v. Poole, (No. 2120257, Feb. 6, 2013) 159 So.3d 119 (Ala.Civ.App.2013) (table). The documents from the appeal in the protection-from-abuse case have been incorporated into the record in the present appeal.

The wife filed a complaint for a divorce on November 20, 2012, citing incompatibility as the ground. In the complaint, however, the wife asserted, among other things, that the husband had been physically and emotionally abusive toward her during the marriage. She specifically referenced the filing of the protection-from-abuse petition in her complaint and incorporated by reference in her complaint the allegations made in that petition. In her prayer for relief, she requested an equitable division of the marital property, an award of periodic alimony, and the following:

"2. The Wife respectfully moves this Honorable Court to merge and/or combine this cause of action with the pending petition for protection from abuse that she has filed and is currently pending in this matter in Case No. DR–12–601, Circuit Court of Lauderdale County, Alabama;

"3. That this Honorable Court will enter a permanent injunction prohibiting the Husband from coming about the Wife at anytime or place following disposition of the protection order that may be entered in this matter...."

The trial court entered a pendente lite order on December 16, 2012, that included, among other things, a provision regarding preservation of assets, stating that "[b]oth parties are ORDERED not to transfer or dispose of any assets other than for usual, normal and ordinary living expenses." That order also required the parties to continue paying fixed monthly expenses existing at the time of their separation and requiring the party who was responsible for paying the monthly mortgage payment during the marriage to continue paying that expense during the pendency of the litigation.

The trial court conducted a trial on September 24, 2013. The husband represented himself. The wife testified that, in January 2013, the husband had deeded back the marital residence to the holder of the mortgage without her consent. On January 22, 2013, the husband had sent a letter to the wife's attorney, stating:

"The owner of the house contacted me today and wants to foreclose and take possession back. January, 2013 payment is past due. I told him I would fax you this information as one last attempt so you may relay the information to [the wife] and she may make the decision if she wants to pay January payment and help with future payments.

"The owner will call me back today 1/22/13 at 5:30 pm expecting an answer if payment will be paid.

"I told him if I do not hear from you I would only have to assume there is no interest in preventing foreclosure and he advised me he will be delivering papers tonight to have house signed back over to him and all contents must be removed by Feb 1st, 2013."

The husband also had sent a letter to her attorney on January 24, 2013, stating that "[a]ll contents from [the marital residence] must be removed by January 31, 2013 .... If I do not hear from you by 5 pm today ... I will assume [the wife] does not want anything from the house and I will throw away whatever I cannot use." The wife filed a motion seeking an order of the trial court enjoining the husband from disposing of personal property in the marital residence and from deeding ownership of the marital residence without the consent of the wife in violation of the December 16, 2012, order. There is no indication that the trial court ruled on the wife's motion for injunctive relief. She testified that, although the husband was able to afford the mortgage payment, he had failed to make the January 2013 payment on the note secured by the mortgage. She testified that, based on her opinion of the value of the house, the parties had lost approximately $35,000 in equity in the house because of the husband's transfer.

The wife testified regarding various instances of the husband's violation of the December 2012 pendente lite order. She also testified regarding the value of the marital residence, the respective incomes of the parties, and the assets of the parties. The wife further testified regarding numerous problems and issues she alleged had been caused by the husband's conduct.

The wife testified that the husband had a monthly pension plan through Wise Alloys, LLC, a former employer, that would pay him $175 monthly upon reaching the age of 55. The evidence indicates that the husband also had had a retirement account with Alcoa, another former employer, that he had cashed out before the divorce action was commenced. The wife testified that the husband may have had a retirement account through Reynolds Aluminum, another former employer, although there was no evidence submitted to show the present value of that account. The husband testified that he had been contributing $420 per month to his 401(k) account through Tarkett, Inc., his current employer, since 2010, but that he stopped doing so after he and the wife had separated. An earnings statement from Tarkett entered into evidence at trial showed that the husband had a balance of $1,227.50 in the 401(k) account. At trial, under cross-examination by the wife's attorney, the husband testified as follows concerning the value of the 401(k) account:

"Q. And since you're a supervisor, your best estimate of the current balance in that account would be approximately what?

"A. I haven't contributed so whatever it says on that pay stub is probably the balance.

"Q. Do you think it's got $2,337 in it? Is that your testimony?

"A. I would assume. I don't know for sure."

He also testified that he had attempted to withdraw $1,900 from that account but that he had been unable to do so, signifying that its value exceeded that amount.

The husband testified that he had submitted an affidavit of substantial hardship in the protection-from-abuse case, in which he stated that he had a gross income of $4,675 per month and that he had $1,375 left over every month after all of his expenses were paid. He testified that he believed that the wife was not due to be paid any equity in the marital residence. He denied being at fault for the divorce. He testified that the wife should not be granted any portion of his retirement benefits because she was living with a friend.

The trial court entered a final judgment on March 2, 2014. In the divorce judgment, the trial court awarded each party one-half of the value of the vested benefits in the husband's retirement plans through Reynolds Aluminum, Wise Alloys, Alcoa, and Tarkett as of November 20, 2012. The judgment ordered the husband to pay $1,200 per month in periodic alimony to the wife. It also ordered the husband to pay the wife alimony in gross...