Sherrill v. Sherrill
| Decision Date | 07 September 2012 |
| Docket Number | 2100681. |
| Citation | 105 So.3d 1223 |
| Parties | Roger D. SHERRILL v. Selina Kay SHERRILL. |
| Court | Alabama Court of Civil Appeals |
OPINION TEXT STARTS HERE
Gary L. Jester of Jester & Holmes, Florence, for appellant.
Henri B. McDaniel and Marcus Helstowski of McDaniel & McDaniel, Huntsville, for appellee.
Roger D. Sherrill (“the husband”) appeals from a judgment of the Limestone Circuit Court divorcing him from Selina Kay Sherrill (“the wife”), dividing the parties' assets and liabilities, ordering him to pay the wife periodic alimony, finding him in contempt for willful violations of four provisions of the trial court's pendente lite order, and ordering him to pay the wife an attorney's fee.
In September 2009, the parties separated after 25 years of marriage. The wife filed a complaint for a divorce, alleging that the husband had been physically, emotionally, and verbally abusive. The husband counterclaimed, also seeking a divorce and alleging that the wife had committed adultery. Both parties moved for pendente lite relief; the wife sought spousal support and the husband sought, among other things, possession of the marital home. The evidence presented at a hearing in October 2009 indicated that the wife had been self-employed as a hairdresser for the last 15 years of the marriage and that the husband had worked the third shift as an hourly employee at Navistar Diesel of Alabama for the last 5 years of the marriage. Two years before they separated, the parties purchased a 100–year–old historic building in Anderson. The wife's beauty salon, known as “Anderson Family Hair Care,” was located in one room of the historic building; the other rooms in the building were designated as “Country Porch Antiques” and were used to display antique furniture and furnishings for sale. The premises also included a detached garage and a garage apartment in which the parties' adult son lived.
The parties jointly owned the antique store; the wife was the sole owner of the beauty salon. The parties maintained a joint checking account for household expenses; they had separate checking accounts and separate cash registers for each business. The wife paid overhead expenses of $800 per month for the beauty salon and contributed $200 per week toward the overhead expenses of the antique store. The wife's net income from the beauty salon was approximately $400 per month, of which, she said, she had received $40 to $60 per week in cash payments and the remainder in checks from her customers. She testified that she had always deposited customers' checks in her checking account; she had not, however, deposited the cash payments but had used them to pay for incidental expenses. The evidence indicated that the husband's net income in 2008 was approximately $60,000.
Following the hearing, the trial court entered a pendente lite order requiring the husband to pay all family indebtedness that he had previously been paying; ordering the husband to pay the wife $500 per month in spousal support “due to the disparity in income of the parties”; awarding the husband temporary possession of the marital home; prohibiting each party from harassing or intimidating the other; ordering that the antique store be closed; and prohibiting the parties from selling, removing, transferring, or concealing the store's inventory and assets. After the entry of the pendente lite order, the wife moved her beauty salon to a different locationfor which she paid rent of $250 per month.
In January 2010, the husband moved to terminate his pendente lite alimony obligation, alleging that he had experienced a significant reduction in income as a consequence of his employer's having lost contracts. The husband asserted that he was no longer receiving overtime or bonuses and that his gross annual wages were $47,985.60 (resulting, he said, in a net monthly income of $3,460.63, which income did not allow him to meet his monthly expenses of $4,327.56). In March 2010, the wife moved the trial court to find the husband in contempt for violating that portion of the pendente lite order that enjoined the parties from harassing, threatening, or intimidating each other. The wife attached to her motion a letter allegedly written to her by the husband, in which the husband called her a “white trash whore” and suggested that she commit suicide. In May 2010, the wife moved the trial court to place in escrow $24,000, the existing cash value of the parties' life-insurance policies that the husband had obtained from Tennessee Farmer's Insurance Company. The trial court deferred ruling on the three motions.
The case was tried over two days in November 2010. At that time, the husband was 50 years old and the wife was 45 years old. The wife testified that she had left the marital residence in August 2009, following an argument with the husband during which he had accused her of adultery, had lifted the mattress on which she was sleeping, and had “dumped” her on the floor. The wife stated that she had been afraid of the husband and had climbed out the bedroom window to escape from him.
After the parties' separation, the wife lived with her sister and brother-in-law, who resided on the street where the marital residence was located. Between the sister's house and the marital residence was a lot on which a mobile home had been placed. The husband testified that, during the six-month period preceding the parties' separation, the wife had spent virtually every weekend night away from home and, he concluded, was having an affair with the man who lived in the mobile home on the lot between the marital residence and the residence of the wife's sister. The wife denied that she had been having an affair. She stated that when she had spent the night away from home she had been with her female cousin, a graphic artist in Florence, working on a scrapbook for the parties' granddaughter. According to the wife, she and her cousin had been engaged in “scrapbooking” until late at night, and the wife had sometimes decided to spend the night with her cousin in Florence rather than drive back to Anderson in the early hours of the morning. The wife testified that the husband was jealous and possessive, that he did not like the fact that she enjoyed spending time with anyone other than him, and that he had often hidden her keys so that she could not leave the marital home.
The evidence established that the parties had purchased the historic building in which the antique store was located for $105,000, that they had made a $25,000 down payment on that purchase, and that the building was encumbered by mortgage indebtedness of $74,000. The wife testified that the down payment had come from the parties' joint checking account. The husband insisted that he alone had provided the funds for the down payment; he said the funds had come from the sale of stock that had been a gift from his mother in 1995. The parties agreed that the historic building was still valued at $105,000 at the time of trial. They also agreed that the marital home was worth $147,500 and was subject to a debt from a $30,000 home-equity line of credit. The husband acknowledged that, during the pendency of the action and without the wife's knowledge or consent, he had obtained both the home-equity line of credit on the marital residence 1 and the existing cash value of the parties' life-insurance policies. The husband testified that he had used those funds to pay off the existing mortgage indebtedness on the marital residence, to pay off the indebtedness on his truck, to pay other bills, and to purchase a “four-wheeler.”
The wife testified that she had worked longer hours and earned more income in 2010 after the parties had separated. The parties' joint federal income-tax return for 2008 reflected that the wife's beauty salon had gross receipts of $14,891. The wife's individual federal income-tax return for 2009, however, reflected that the beauty salon had gross receipts of $25,312. The wife testified that she was currently earning a gross income of approximately $2,380 per month, from which she paid $850 per month in business expenses. She submitted no evidence of her personal living expenses.
The husband testified that, after the parties' separation, he had realized that the wife had been underreporting her income since 2007. He explained that he had obtained the wife's beauty-salon appointment book for 2007; that he had compared the appointments with the wife's price list for various services offered by the salon (which information he had obtained in discovery, e.g., $10 for a man's haircut, $12 for a woman's haircut, $35 for “color,” and $75 for “foils”); and that he had assigned a value for each of the wife's appointments in 2007. The husband testified that the grand total of gross receipts that the wife would have received in 2007 based on her appointment book was $49,093. Based upon the wife's testimony that she had earned more in 2009 than she had earned in either 2007 or 2008, the husband concluded that the wife was currently earning more than he was earning and that she was, therefore, not entitled to alimony.
When the husband's counsel moved to admit the appointment book and the husband's notations into evidence, the wife's counsel objected on the ground that the husband's extrapolations were speculative:
The trial court then posed a question to the husband:
The following then occurred:
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