Shirley v. Shirley

• Decision Date: 17 April 1992
• Court: Alabama Court of Civil Appeals
• Parties: Jimmy Stephen SHIRLEY v. Suzanne Shelton SHIRLEY. 2900490.

Page 284

600 So.2d 284

Jimmy Stephen SHIRLEY v. Suzanne Shelton SHIRLEY.

2900490.

Court of Civil Appeals of Alabama.

April 17, 1992.

Rehearing Denied May 22, 1992.

Robert Straub of Russell, Straub & Kyle, and David B. Cauthen of Cauthen & Cauthen, Decatur, for appellant.

Jerry Knight of Hardwick, Knight & Haddock, Decatur, for appellee.

RUSSELL, Judge.

Following oral proceedings, the trial court divorced the parties and, pursuant to § 30-2-52, Ala.Code 1975, awarded the wife the lump sum of $507,500 as a property settlement and alimony in gross. The court also awarded the wife an attorney's fee in the amount of $27,250. The husband appeals. We affirm.

Section 30-2-52 permits a trial court, upon a finding of misconduct by one spouse, to make an allowance to the other spouse out of the estate of the offending spouse, as the circumstances may justify, provided "that any property acquired prior to the marriage of the parties or by inheritance or gift may not be considered in determining the amount." On appeal the husband contends that the effect of the lump sum award was to provide the wife with an interest in his prenuptial estate in violation of § 30-2-52. He maintains that he has no postnuptial estate from which to draw an award and that, consequently, he will be forced to liquidate prenuptial holdings and to use other protected assets in order to satisfy the judgment.

We note at the outset that when evidence is presented ore tenus to the trial court, as in this divorce, the judgment of the trial court is presumed correct. Absent an abuse of discretion that is so unsupported by the evidence as to be plainly and palpably wrong, we must affirm. Brannon v. Brannon, 477 So.2d 445 (Ala.Civ.App.1985). Further, matters of property division and alimony rest soundly within the trial court's discretion and will not be disturbed on appeal except where such discretion was plainly and palpably abused. Alston v. Alston, 555 So.2d 1128 (Ala.Civ.App.1989).

The record reflects that the parties met in 1973, when the wife became affiliated as an agent with the husband's real estate brokerage business. The husband was married at the time, and the wife was divorced from her first husband. A romantic relationship ensued, and in 1976 the husband obtained a divorce from his first wife. The parties married in November 1978. They were separated in November 1989 and divorced in April 1991, after approximately 12 years of marriage. At the time of the divorce the husband was 44 years of age and the wife was 56. Their marriage produced no children. The wife had two children from her previous marriage, and the husband had one child, a daughter, from his prior marriage. The husband's daughter resided with the parties during the last four and one-half years of their marriage. The wife insists that she was the child's primary caretaker during this period.

The husband procured a brokerage and real estate license in January 1969, and he has operated a real estate business as a sole proprietorship since shortly thereafter. In 1973 he incorporated the business. He presently is the sole shareholder. Both before and during the parties' marriage, the wife was affiliated with the husband's business as an independent contractor/agent. She was not an employee of the corporation, nor did she own any interest in it. By all accounts, the wife has been an aggressive and highly successful real estate professional. Evidence adduced at trial indicated that she was the leading agent during much of her association with the husband's business, for which she received considerable remuneration in the form of sales and listing commissions.

The record reveals that the parties' marriage was beset with extreme unpleasantness. In the pleadings and at trial, each party placed blame for the breakup of the marriage on the other. The husband claimed that the wife was verbally abusive, argumentative, and vindictive and that she interfered with the operation of his business both during the marriage and after the parties' separation. The wife claimed that the husband had a violent temper, had been physically abusive during the marriage, had been dishonest in his handling of the parties' finances, and had engaged in numerous extramarital affairs. At trial she specifically alleged that the husband had, without her consent, misapplied a number of her real estate commission checks for his personal use and had attempted to misappropriate certain life insurance proceeds of which she was the sole intended beneficiary. The husband denies that he has ever been dishonest in handling the wife's money or that he has engaged in adultery, although he admits to having engaged in sexual activity with a woman not his wife on three occasions.

The trial court made no specific finding of adultery, granting the divorce on grounds of incompatibility of temperament and irretrievable breakdown. However, in the judgment of divorce the court recognized the husband's sexual infidelities and made specific findings of his marital misconduct and financial dishonesty toward the wife and other parties. We have thoroughly reviewed the record and conclude that there is ample evidence to support the trial court's finding of marital misconduct by the husband. A detailed recital of the testimony as to this issue would serve no useful purpose. We must emphasize that in cases such as this, the trial court's opportunity to observe the parties and witnesses is crucial. It is an opportunity we are not afforded. The credibility of oral testimony is consigned to the trier of fact. We will not substitute our judgment for that of the trial court. Cox v. Cox, 395 So.2d 1027 (Ala.Civ.App.1981).

Where one spouse is guilty of misconduct toward the other spouse, the trial court's award may be as liberal as the estate of the offending spouse will permit under the circumstances of the case. Isom v. Isom, 273 Ala. 599, 143 So.2d 455 (1962). The determination of a spouse's separate estate is a matter for the trier of fact after reviewing all the evidence in each case. Alston, 555 So.2d 1128.

The trial court found as fact that "most of the marital estate is now reflected in real and personal property, accounts, and investments solely in the [husband's] name," but that the wife had contributed toward the growth of the husband's business and had made "significant" contributions toward the parties' postnuptial accretions in wealth and estate. The court further stated that it had been able to distinguish the husband's prenuptial estate from assets accumulated after the parties' marriage and held that the wife had no interest in the husband's prenuptial estate. A sizeable estate that the wife inherited from her parents was also excluded from consideration as part of the marital estate, the trial court rejecting the notion that the wife was entitled to "support" alimony under § 30-2-51, Ala.Code 1975.

At trial the husband placed the total value of his assets at approximately $900,000, nearly $240,000 of which, he said, is in retirement benefits and $35,000 of which is in the name of his minor daughter. He contends, however, that all assets he presently owns were held prior to the parties' marriage or were acquired with proceeds from the sale of assets he owned prior to the marriage. The record shows that he has substantial holdings in real estate that he purchased before the marriage and that during the marriage he continued to invest in apartment complexes and other properties. The husband asserts that, because of changes in the tax laws, his postnuptial real estate investments are worth considerably less than in previous years and that what postnuptial holdings he does have are in heavily mortgaged property. At trial he claimed to have a negative equity of $438,000 in the real property he acquired during the marriage. The evidence shows that the husband also has considerable stock investments; however, he maintains that these investments have significantly diminished in value in recent years. The parties stipulated at trial that the value of the husband's stock portfolio fell from over $1,300,000 to $1,000,000 within the last year.

The record indicates that during most of the parties' marriage, the husband's business was growing and operating at a substantial profit. However, the husband contends that the continued viability of the business is now threatened. He testified that his corporation operated at a loss in 1989 and 1990 and claimed that unless he can recruit more agents and increase sales, he will be forced to dissolve it. He also testified that his personal earnings have dropped in recent years. In 1990 his salary from the operation of his business was $24,000, down from $60,000 the previous year. He claimed that his total personal income for 1990 was $44,851.

While the wife does not dispute the husband's contentions regarding the current condition of his business, she takes exception to his assertions regarding his financial holdings and the size of the marital estate. The record indicates that just prior to the initiation of the divorce action in November 1989, the husband, seeking to have his corporation franchised by the Prudential Life Insurance Company, prepared and provided Prudential with a financial statement, in which he valued the assets titled in his name at $2,723,247. At trial the husband testified that he did not dispose of any of his assets between the time he prepared the statement and the time he later estimated his assets to be worth some $1,800,000 less. However, he explained that this vast discrepancy was due to his own inadvertent accounting errors made when preparing the statement. He also testified that he had neglected to include on the statement an indebtedness of over $1,000,000 on apartment...