RHODES v. RHODES, 2070972.

• Decision Date: 24 July 2009
• Docket Number: 2070972.
• Parties: Jimmy Neil RHODES v. Barbara Cameron RHODES.
• Court: Alabama Court of Civil Appeals

38 So.3d 54

Jimmy Neil RHODES

v.Barbara Cameron RHODES.

2070972.

Court of Civil Appeals of Alabama.

July 24, 2009.

S. Wayne Fuller and Matthew K. Carter of Fuller & Willingham, LLC, Cullman, for appellant.

Robert F. Richardson, Jasper; and Lisa M. Ivey, Jasper, for appellee.

MOORE, Judge.

Jimmy Neil Rhodes (“the husband”) appeals from a judgment of the Walker Circuit Court divorcing him and Barbara Cameron Rhodes (“the wife”) and dividing the parties' marital property. We affirm the judgment in part and dismiss the appeal in part.

Facts and Procedural History

The parties were married on March 12, 1965. There were two children born of the marriage; both children had reached the age of majority at the time of the divorce proceedings.

According to the wife, the husband had been the breadwinner for the family. The husband testified that he had been drafted into the United States Army and that he had served in the Vietnam War. The wife stated that the parties had been married a little over a year when the husband was drafted. According to the husband, he was in the military for approximately two years. The husband stated that, after his military service, he was diagnosed with post-traumatic stress disorder (“PTSD”), which, he stated, causes him to have extreme depression and anxiety. He stated that he suffers from flashbacks, that he has always been “fidgety” at night, that he gets up and looks out the windows, and that his symptoms have gotten progressively worse as he has aged. According to the husband, at the time of trial, he had been visiting a hospital in Tuscaloosa operated by the United States Department of Veterans Affairs (“VA”) for treatment of his PTSD for the past six or seven years.

The husband testified that he had worked as a miner for approximately 30 years before he retired in 2003. According to the husband, he receives monthly benefits of approximately $1,502, before taxes, from his United Mine Workers of America (“UMWA”) pension plan. The husband stated that he receives monthly benefits of approximately $2,602 from the VA and that he receives approximately $2,000 in Social Security disability benefits each month. The husband further stated that he has a 401(k) account from his mining employment and that there is approximately $22,000 in that account. The wife, on the other hand, receives $203 monthly from a retirement or disability pension from her employment at Bruno's, a supermarket chain, and $597 monthly in Social Security disability benefits.

The husband testified that he had had an extramarital affair in late 1979 or early 1980 and that, after he was “saved” in 1989, he had admitted having had that affair to the wife. The wife stated that, before the husband admitted that he had had the affair, she had received two letters in the mail telling her about the affair. According to the husband, he and the wife resumed their marriage after he admitted having the affair. The husband stated that he had not been unfaithful to the wife on any other occasion. The husband stated that the wife had never admitted to having had an affair but that she had said that she had made mistakes. The wife testified that she had never had an affair but that she had told her daughter that she had because she was tired of her daughter asking whether she had had an affair. The wife also testified that she had told her best friend, Deloris Roberts, that she had had an affair with another man, but the wife stated that she had told Roberts that to make the husband jealous because she believed he had been “fooling around” with Roberts.

The husband testified that the wife had suffered from various ailments for a long time; he stated that she had had back surgery and problems with depression, among other things. The husband further testified that the wife had attempted suicide by an overdose of medication on two occasions and that she had gone to the hospital on both occasions.

The wife testified that she had ruptured a disk in her lower back while she was working for Bruno's. She had surgery on her back in 1994 as a result of the injury. She also has a bulging disk on the opposite side of her back. She has nerve damage in her left leg, which causes her pain, sometimes so much that she cannot move. The wife also suffers from fibromyalgia and osteoarthritis, which also cause her pain. The wife also had neck surgery in August 2005 for a ruptured disk in her neck; the doctor inserted a metal plate and a piece of artificial bone in her neck during that surgery. As a result of that surgery, the wife still experiences pain down her back, around and between her shoulders, and up the back of her neck and into her head. She stated that it is sometimes hard for her to turn her head from side to side and that she has a hard time picking up change or small items. She also experiences muscle twitching and often loses strength in her arms and hands. The wife also stated that she suffers from severe depression, which began, she said, after she learned about the husband's affair. At trial, the wife testified that she had been prescribed Lexapro, an antidepressant; Lyrica and Celebrex, anti-inflammatory medications, for treatment of her fibromyalgia and osteoarthritis; Soma, a muscle relaxer, and Percocet, as needed, for her back pain; and Valium. The wife also testified that she was unable to afford the majority of those prescriptions at the time of trial. The wife was 59 years old at the time of the trial and was not, at that time, eligible for Medicare because she was receiving disability benefits.

The husband stated that he stayed outside all the time before he and the wife separated because he could not live under the circumstances existing inside the house. The husband testified that the wife had told him that he was not to speak to their next-door neighbor or her husband anymore because the husband had been speaking to the neighbor at the back fence on occasion and because the neighbor had baked the husband cakes on several occasions. The husband stated that the wife had forbidden him from waving at people on the way to church. The husband further testified that he has an older sister who is mentally retarded, that he and his siblings share the responsibility of taking care of her financially, and that the wife allowed him to contribute only $75 per month for his sister's care. The wife testified, however, that she never had a problem with his contributing to his sister's care but that she had a problem with his paying his other sister's share of the expenses.

According to the husband, he and the wife separated shortly before Thanksgiving in 2005, and he was forced out of the marital residence at that time. The husband testified that, on that morning, the wife had questioned him about the tithes that he paid to his church and had limited the amount he could pay to the church. The wife, however, stated that she had not had a problem with the husband tithing to the church but that she had merely asked the husband to write one check per month to the church so that he would not have to find the correct change every Sunday. The husband stated that, after he had returned home from church that day, the wife accused him of waving at the lady that lived next door when he had left the house to go to church and that the wife then began cursing and went into a rage. The husband stated that he was laying in bed at that time and that the wife began beating him on his legs and his face. He stated that he could not remember exactly what happened next, but that he did not recall hitting the wife, and that the wife then retrieved a gun. The husband stated that he reached over the wife's back and locked onto her arm with one hand and jerked the gun out of her hand with his other hand, that he then hid the gun, and that the wife began screaming and telephoned the police. The husband testified that he had not intentionally hit the wife during that incident but that she had ended up with a cut on her mouth. According to the husband, he was arrested as a result of that incident but he was later found not guilty of charges arising from that incident.

The wife testified that, on the day of the incident, she had not beaten the husband; rather, she said, he had beaten her before she got loose from him. She admitted that she had been upset because the husband had waved at someone on his way to church and that she had told the husband not to wave at the neighbor because she had seen them talking at the fence and because the neighbor had baked him cakes. She stated that they lived in a small neighborhood and that she had not wanted their neighbors talking about her and the husband's relationship.

The husband filed a complaint for a divorce and for a restraining order against the wife in the Walker Circuit Court on December 12, 2005. The husband asserted, among other things, that he had not returned to the marital residence since the wife had filed a domestic-violence complaint against him on November 13, 2005. The husband requested, among other things, a divorce, an equitable division of the parties' real and personal property, and a temporary restraining order prohibiting the wife from “taking actions attempting to secrete, hide, destroy, transfer, sell, or damage the property, both real and personal, of the parties.”

On December 13, 2005, the trial court issued a temporary restraining order, which required the wife to refrain from entering the premises where the husband resided, required the husband to refrain from harassing or committing acts of violence upon the wife, and awarded temporary use of a mobile home owned by the parties to the husband.

The wife filed a motion on January 13, 2006, requesting that she be awarded temporary use and possession of the marital residence, temporary spousal support, and attorneys fees. Also on January 13, 2006, the wife filed an answer and a counterclaim, in which she requested temporary and...