Sellers v. Sellers

• Decision Date: 12 March 2004
• Citation: 893 So.2d 456
• Parties: H. Charles SELLERS v. Peggy Robbins SELLERS.
• Court: Alabama Court of Civil Appeals

893 So.2d 456

H. Charles SELLERS v. Peggy Robbins SELLERS.

2021230.

Court of Civil Appeals of Alabama.

March 12, 2004.

Rehearing Denied April 9, 2004.

Certiorari Denied June 11, 2004.

William H. Mills of Redden, Mills & Clark, Birmingham, for appellant.

Submitted on appellant's brief only.

Alabama Supreme Court 1031118.

THOMPSON, Judge.

H. Charles Sellers ("the husband") and Peggy Robbins Sellers ("the wife") were married on December 23, 1957. Two children were born of the parties' marriage; at the time of the hearing in this matter, both children had reached the age of majority. The parties were divorced by a July 12, 1972, judgment of the trial court (hereinafter "the divorce judgment"). The divorce judgment awarded, among other things, custody of the parties' children to the wife, ordered the husband to pay the wife $100 per month in periodic alimony, and ordered the husband to maintain a $25,000 life-insurance policy for the benefit of the wife.

On June 20, 1974, the wife filed a petition to modify the trial court's July 12, 1972, divorce judgment, seeking, in part, an increase in the amount of periodic alimony from $100 to $200 per month. The trial court entered a judgment on July 18, 1974, awarding the wife $200 per month in periodic alimony.

On December 9, 2002, the husband filed a petition seeking to modify the trial court's original July 12, 1972, divorce judgment and its July 18, 1974, modification judgment. In his petition, the husband requested that the trial court terminate his periodic-alimony obligation and his obligation to maintain an insurance policy for the benefit of the wife. On February 18, 2003, the wife filed a counterpetition in which she requested an increase in periodic alimony.

On August 21, 2003, the trial court conducted a hearing and received ore tenus evidence and documentary evidence. On August 22, 2003, the trial court entered a judgment denying both parties' petitions and taxing the court costs to the husband. No postjudgment motions were filed, and the husband appealed.

Where a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This "presumption of correctness is based in part on the trial court's unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor." Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000).

The testimony and evidence received at trial indicated the following facts. The parties were married for 14 years. At the time of trial in this matter, the wife was 72 years old. The wife never remarried following the parties' divorce. The wife has lived in Blowing Rock, North Carolina, since the parties' divorce. The wife testified that she was not employed at the time of the parties' divorce but that, shortly thereafter, she began working for Blowing Rock Attractions, a family business. According to the wife, Blowing Rock Attractions operates a tourist attraction located in western North Carolina. The wife testified that she initially earned approximately $100 per week from the business and that in 1989 she began managing the business. The wife owns a one-eighth share in the business.¹ The wife testified that she earns a net income of $1,334.80 per month. In addition to her monthly income, the business pays her health-insurance premiums in the amount of $262 per month. The wife testified that, at the time of trial, she had received $1,600 in dividends from her shares of stock in the family business.

The wife owns, or has an interest in, several pieces of real property. The wife testified that she owns her home and that the tax-assessed value of that home is $329,000. In addition to her home, the wife owns a one-third interest in a rental property valued at $420,000 and a one-eighth interest in a parcel of land valued at $50,000. According to the wife, she receives $450 per month in gross income from the rental property. The wife testified that she has a money-market account valued at $26,000 and that she also owns 10 shares of stock in Tweetsie Railroad. The wife testified that she does not have a retirement account or a 401(k) account. According to the wife, she is unable to retire and must continue working full-time.

The wife introduced her income-tax returns from the past six years into evidence at trial. The wife's 1997 income-tax return indicated that she had earned $8,169.28 in wages and that she had $100,037 in taxable income. In 1998, the wife earned $14,500 in wages and had $107,714 in taxable income. According to her 1999 tax return, the wife earned $15,500 in wages and had taxable income in the amount of $96,362. In 2000, the wife earned $42,227 in wages and had $100,018 in taxable income. The wife's 2001 tax return indicated that she had earned $64,011 in wages and that she had $104,498 in taxable income. In 2002, the wife earned $52,399 in wages and had a taxable income of $87,573. The wife testified that she used a substantial amount of her income to repay debts incurred over the years to help support herself and the children. According to the wife, the tourist-attraction business has dwindled since the events of September 11, 2001.² The wife testified that business had been "off" in 2003 because the road leading into Blowing Rock had been washed out.

The husband was 71 years old at the time of the hearing in this matter. The husband married again in 1976. The husband testified that he and his current wife, Joan Sellers (hereinafter "Joan"), had been married for 27 years. The husband and Joan live in South Carolina. The husband testified that he moved to South Carolina in 1995, after he retired from McConnell Industries in Trussville, Alabama.

The husband testified that when the parties divorced, he was employed at Beloit Corporation in Pinson, where he earned approximately $30,000 per year. The husband testified that, while living in Alabama, he also began investing in rental property. According to the husband, he began investing in rental property in 1981, when he purchased a condominium in Gulf Shores and the house in which he now lives in South Carolina. The husband later acquired two additional condominiums in Gulf Shores, and another house in South Carolina.

The husband testified that, in addition to investing in rental property, he formed Snap & Back, Inc., a photo-finishing business. The husband testified that he operated the business as a photo-finishing business for 13 to 14 years before liquidating the assets in or about 1997. The husband testified that he did not dissolve Snap & Back, Inc., and that he used it as a vehicle through which to run his consulting business. The husband noted that he was a consultant for the forest-products industry. The husband testified that he had performed consulting work only once in 2003 and that he had earned $600 for that work.

The husband testified that, at the time of trial, he had disposed of all of his rental properties, with the exception of a resort home in Saluda, North Carolina. The husband testified that he acquired the North Carolina property in June 2002 in a "property swap." According to the husband, he realized a $323,000 return on his investment as a result of the "property swap." The husband testified that he did not invest that money in a guaranteed-return investment but, instead, used it to pay other debts. According to the husband, the North Carolina home is worth $331,000 and is unencumbered by indebtedness. The husband testified that he had received $5,800 in gross rental income from the North Carolina property at the time of trial. The husband testified that his and Joan's marital home is valued at $450,000. According to the husband, all of the real estate he owns is held in the name of the "Charles Sellers Living Trust." The husband testified that he created the trust four years before the trial in order to take advantage of tax laws.

The husband testified that in March 1999 he financed the purchase of a boat for $185,000. The husband stated that he spent $22,000 for improvements to the boat. The husband testified that in December 2002 he paid $1,272.40 towards the indebtedness on the boat. In 2003, the husband sold the boat for $170,000. According to the husband, he did not realize any profit from the sale of the boat.

The husband further testified that in 2002 he bought that year's model Jeep sport-utility vehicle for $27,566 in cash. The husband testified that he purchased the Jeep before he filed his December 9, 2002, petition to modify. According to the husband, he previously made $1,000 car payments on behalf of Joan; however, the husband noted that Joan recently purchased a new car, for which she paid cash. Several of the husband and Joan's joint tax returns were admitted into evidence at trial. The joint income-tax returns indicate that the husband and Joan reported a taxable income of $119,398 in 1999; $52,818 in 2000; $178,437 in 2001; and $76,680 in 2002. The husband testified that income received from stock dividends and any interest income were attributed to Joan. According to the husband, Joan inherited a substantial estate after the death of her parents and she regularly receives a significant income from investments. The husband testified that he had not transferred any assets to Joan or made any substantial gifts to her.

The husband testified that he is retired and in good health. According to the husband, his monthly income includes $634 from his pension, $1,180 from Social Security, and rental income...