Sexton v. Sexton, 2040910.

Decision Date06 January 2006
Docket Number2040910.
Citation935 So.2d 454
PartiesKenneth J. SEXTON v. Laniece SEXTON.
CourtAlabama Court of Civil Appeals

Parker C. Johnston, Millbrook, for appellant.

J. Myron Smith, Prattville, for appellee.

THOMPSON, Judge.

Kenneth J. Sexton ("the husband") and Laniece Sexton ("the wife") were divorced by a December 17, 2003, judgment of the trial court.1 The divorce judgment ordered the husband to pay the wife $900 a month in periodic alimony, beginning January 1, 2004, and to pay attorney fees in the amount of $1,000 and court costs consisting of a filing fee in the amount of $157 within 30 days of the entry of the divorce judgment.

On November 10, 2004, the wife filed in the trial court a petition for a rule nisi requesting that the trial court hold the husband in contempt for his alleged failure to pay the periodic alimony, attorney fees and court costs as ordered in the December 17, 2003, divorce judgment. The wife requested that, upon a finding of contempt, the husband be incarcerated until such time as he purged himself of the contempt. The husband answered; although he admitted that he had failed to pay those court-ordered amounts, he asserted as a defense his inability to pay them. The husband filed a counterclaim seeking to terminate, or substantially reduce, his periodic-alimony obligation.

On June 6, 2005, the trial court held a hearing at which it received ore tenus and documentary evidence. Our review of the evidence reveals the following relevant facts. The parties were married for approximately two and a half years. No children were born of the parties' marriage. Both parties have a child from a previous marriage; the wife has a daughter and the husband has a son.2

As of the date of the hearing in this matter, the total amount that the husband owed the wife for periodic alimony, attorney fees, and court costs, including applicable interest, was $18,919.12. During his testimony, the husband admitted that he had not paid those court-ordered amounts but asserted as a defense that his failure to pay them was not "deliberate" because, he claimed, he lacked the financial ability to pay them.

The record reveals that the husband's financial condition deteriorated following the parties' divorce. During the parties' marriage and at the time of their divorce, the husband was employed by M.D. Ray Contractors and Coosa Contracting ("Ray Contractors") as an accountant.3 The husband testified that he was laid off from his job at Ray Contractors in April 2004 and that he remained unemployed until November 2004. He said that he was hired by Caddell Construction Company ("Caddell Construction") as an accountant/contract manager in November 2004; he continued to work at Caddell Construction at the time of the hearing in this matter.

The husband testified that at the time of the hearing in this matter he lived in a one-bedroom, one-bathroom, "mother-in-law" apartment that he had moved into in January 2005; he no longer owned the house that he had been awarded pursuant to the parties' divorce judgment. The husband testified that he refinanced the mortgage on his house in April 2004 "to get some cash out of it." The record includes a copy of an April 5, 2004, mortgage in favor of CitiFinancial Corporation, LLC ("CitiFinancial"), on that property; that mortgage secured the payment of a promissory note in the principal amount of $121,282.78. The husband said that following the parties' divorce he was unable to make the monthly mortgage payments on his house. He also stated that CitiFinancial initiated foreclosure proceedings and that the house was sold in May 2005 for $92,500. The husband testified that he still owed the deficiency balance of approximately $28,800.4

The husband also testified that following the parties' divorce but before he was laid off from Ray Contractors CitiFinancial repossessed his vehicle due to his inability to make the monthly payments on that vehicle. He said that after CitiFinancial sold that vehicle it sued him for a deficiency balance of $11,524.48. He introduced into evidence a copy of CitiFinancial's March 2005 complaint in that lawsuit, and he testified that that lawsuit was still pending. The husband testified that after his vehicle was repossessed he leased a 2000-model-year truck for $410 per month but that as of the date of the hearing he was three to four months behind on his lease payments. He introduced into evidence a copy of the June 1, 2005, statement for that leased vehicle reflecting that he owed $1,640.12.

The husband also testified that he had paid $477 per month in child support to his first wife for their 15-year-old son until shortly before the hearing in this matter. The husband said that his first wife died in May 2005, at which time his son moved in with him. The husband stated that his first wife had never sued him for nonpayment of child support and that he had been current with his child-support payments at the time of his first wife's death.

The husband introduced into evidence an exhibit entitled "Ken Sexton's Monthly Expenses"; that exhibit reflected monthly "take home pay" in the amount of $3,415.545 and monthly expenses in the amount of $3,720. That exhibit read in its entirety:

                "Truck                                    $     410
                "Rent
                (Will have to rent larger apartment with
                bedroom for [the son])                    $     475
                "Utilities                                $     430
                "Car Insurance
                (Will have additional car insurance for
                the son)                                  $     100
                "Health Insurance
                (Will have to put the son on his health
                insurance)                                $     230
                "Life Insurance                           $      50
                "Food & Groceries                         $     900
                "Gas                                      $     250
                "Entertainment
                (movies, bowling, etc. with the son)      $     200
                "Car Repairs (tires, oil, etc.)           $     100
                "Clothing and Cleaners                    $     200
                "Hair cuts                                $      50
                "Christmas Club/Gifts                     $      25
                "Dentist/Doctor Visits
                ([the son] has asthma)
                ([the son] may need braces)               $     200
                "Grooming Items                           $      50
                "Cell phone (for [the son])               $      50
                     "Total                               $   3,720
                "`Take Home Pay'                     $ 3,415.54"
                

(Bold typeface in original.)

At the time of the hearing in this matter, the husband's son had been living with him for less than a month. The husband explained at the hearing that the $475 amount for "rent" was for the one-bedroom, one-bathroom, "mother-in-law" apartment. He testified that he needed a bigger place to accommodate his son. He also explained that the $230 amount for "health insurance" did not include family coverage for his son, which costs an additional $200 per month; the son previously had been covered under his first wife's health-insurance policy. The husband testified that the $200 amount for his son's asthma and braces were expenses that he did not have at the time of the parties' divorce. The husband also testified that when his son turns 16 in November 2005 he would like to purchase the son a used truck and that he would have the added expenses of automobile insurance coverage for the son as well as maintenance and gasoline for the son's truck.

The husband also introduced into evidence his personal-checking-account statements from December 17, 2003, through March 16, 2005. He divided those statements into two exhibits—the first set was for the 12-month period, beginning December 17, 2003, through December 16, 2004, and the second set was for the 3-month period, beginning December 16, 2004, through March 16, 2005. The husband testified that he paid his living expenses out of that checking account.

During the period December 17, 2003, through December 16, 2004, the husband's checking account reflected that his average monthly deposits and his average monthly withdrawals were approximately the same, i.e., approximately $2,100. The husband testified that during that period of time (from December 17, 2003, through December 16, 2004), he did not have any other moneys from which to pay the periodic alimony, attorney fees, and court costs.

During the period December 16, 2004, through March 16, 2005, the husband's checking account reflected that his average monthly deposits were $3,681.95 and his average monthly withdrawals were $3,600.19. The husband testified that those deposits consisted of his "take home pay" from Caddell Construction; the husband's checking-account statements reflect bimonthly deposits from Caddell Construction. When asked by his attorney, "And does this represent all of the income [except for April and May 2005] that you had in 2005?" the husband responded "yes." The husband testified that he did not deposit any extraordinary amounts into his checking account during April and May 2005. He further testified that his employment income was his only source of income and that he did not have any assets or retirement accounts that he could liquidate to pay the court-ordered amounts.

On cross-examination, the husband admitted that he had not paid the amount he owed the Internal Revenue Service ("IRS") at the time of the parties' divorce.6 When questioned about a number of other lawsuits in which he was involved and judgments entered against him, the husband admitted that he had not paid a 1995 judgment in favor of TransAmerica Financial Services in the amount of $64,623; he claimed that the other judgments entered against him had been paid and that the other lawsuits in which he had been involved had been dismissed.

Regarding the wife's financial condition, the record indicates that at the time of the hearing in this matter the wife lived in the marital residence that she had been awarded pursuant to the parties' divorce judgment; the wife had owned that house before the parties' marriage. The record...

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5 cases
  • Morgan v. Morgan
    • United States
    • Alabama Court of Civil Appeals
    • July 11, 2014
    ...comply with the pendente lite support orders."The inability to pay court-ordered alimony is a defense to contempt. Sexton v. Sexton, 935 So.2d 454, 460 (Ala.Civ.App.2006). ‘ " ‘When the accused presents evidence that he is unable to pay the ordered amount, the burden o[f] proof is on the co......
  • Goldman v. Goldman
    • United States
    • Alabama Court of Civil Appeals
    • November 6, 2015
    ...be imposed when the failure to comply is due to the inability to pay instead of the obligor's contumacy. See, e.g., Sexton v. Sexton, 935 So.2d 454, 460–61 (Ala.Civ.App.2006) ; Murphy v. Murphy, 447 So.2d 798, 800 (Ala.Civ.App.1984) ; and Ex parte Talbert, 419 So.2d 240, 241 (Ala.Civ.App.19......
  • Morgan v. Morgan
    • United States
    • Alabama Court of Civil Appeals
    • April 18, 2014
    ...comply with the pendente lite support orders."The inability to pay court-ordered alimony is a defense to contempt. Sexton v. Sexton, 935 So. 2d 454, 460 (Ala. Civ. App. 2006). '"'When the accused presents evidence that he is unable to pay the ordered amount, the burden o[f] proof is on the ......
  • Wilson v. Wilson, 2150259
    • United States
    • Alabama Court of Civil Appeals
    • October 21, 2016
    ...Beatty, 991 So.2d 761, 767 (Ala. Civ. App. 2008) ; Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala. Civ. App. 2006) ; Sexton v. Sexton, 935 So.2d 454, 461 (Ala. Civ. App. 2006) ; and R.J.W. v. C.L.W., 872 So.2d 876, 877 (Ala. Civ. App. 2003). We note that in all of those cases, the most recent ......
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