Underwood v. Underwood

• Decision Date: 20 July 2012
• Docket Number: 2110204.
• Parties: Maurice UNDERWOOD v. Rochella Benita UNDERWOOD.
• Court: Alabama Court of Civil Appeals

100 So.3d 1115

Maurice UNDERWOOD

v.Rochella Benita UNDERWOOD.

2110204.

Court of Civil Appeals of Alabama.

July 20, 2012.

Thomas H. Nolan, Jr., Mobile; and Claude D. Boone, Mobile, for appellant.

Submitted on appellant's brief only.

THOMAS, Judge.

Maurice Underwood (“the husband”) and Rochella Benita Underwood (“the wife”) were married on January 3, 1981. On June 3, 2009, the husband filed a complaint seeking a divorce from the wife and a distribution of the assets and debts accumulated during the marriage. The wife answered the complaint and filed a counterclaim in which she asserted that she had been physically abused by the husband. After several continuances, a trial was held on April 14, 2011. On April 26, 2011, the circuit court entered its judgment divorcing the parties, dividing the parties' real property and vehicles, awarding the wife periodic alimony, and awarding the wife percentages of the husband's two retirement accounts. Specifically,

“[w]ith respect to the husbands 2 pensions, the wife shall be awarded 25% of the Union 119 pension and 401k and retirement in Mobile, Alabama, if any. The wife shall be awarded 50% of the Union 72 retirement, pension, and 401k, in Atlanta, Georgia, if any. The wife's attorney shall prepare the proper Qualified Domestic Relations Orders within 60 days to prepare same transfers and the husband shall cooperate in getting same paperwork signed and turned in, if necessary. The value to be divided shall be the value as of the date of this order and shall include any fluctuations in market prices and exclude any employee contributions made since this date.”

The husband filed a motion to alter, amend, or vacate the circuit court's judgment. The husband contended that the wife had offered no evidence of the values of his retirement accounts, that the husband should have been awarded the marital residence “outright,” that the wife was not entitled to an award of periodic alimony, and that there was no evidence establishing the husband's ability to pay alimony to the wife. He amended his postjudgment motion to contend that a 1979 F–100 truck should have been awarded to him. The wife responded, opposing the husband's postjudgment motion and amended postjudgment motion. On July 21, 2011, the circuit court entered an order granting the husband's postjudgment motion in part. The circuit court set aside the wife's award of 25% of the husband's Union 119 retirement account and set a hearing for October, 11, 2011, to receive evidence regarding the husband's Union 119 retirement account. See Tice v. Tice, 100 So.3d 1071, 1074 (Ala.Civ.App.2012) (A judgment is nonfinal when all matters in controversy have not been completely adjudicated.).

At the hearing on October 11, 2011, the husband objected to the circuit court's receiving additional evidence regarding his Union 119 retirement account. The circuit court then concluded that it lacked the ability to “reopen the case to hear additional evidence.” Instead, the circuit court, on October 20, 2011, modified its judgment, setting aside that portion of its judgment that had awarded the wife a percentage of the husband's Union 119 retirement account and, “in light of [its] reconsideration,” ordering the husband to pay the wife $25,000 in alimony in gross to be paid in monthly installments of $375 for five years. All other portions of the circuit court's April 26, 2011, judgment remained in effect.

The husband timely appealed to this court on November 15, 2011. He seeks this court's review of (1) whether the circuit court erred in awarding the wife 50% of the husband's Union 72 retirement account, (2) whether the circuit court erred by “substituting” an award of alimony in gross in its amended judgment, and (3) whether the circuit court's property award and its award of periodic alimony is excessive and improper due to the husband's alleged lack of ability to pay the amount ordered.

“In reviewing a trial court's judgment in a divorce case where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court's judgment based on those findings will be presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). Furthermore, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996). In addition, the trial court can consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility. Ex parte Drummond, 785 So.2d 358 (Ala.2000). Moreover, in Kluever v. Kluever, 656 So.2d 887 (Ala.Civ.App.1995), this court stated, ‘[a]lthough this court is not permitted to substitute its judgment for that of the trial court, this court is permitted to review and revise the trial court's judgment upon an abuse of discretion.’ Id. at 889.”

Langley v. Langley, 895 So.2d 971, 973 (Ala.Civ.App.2003).

At the time of the trial, the husband and the wife had been married for 30 years. Their three children are adults. The husband testified that the parties had separated more than once and that they had not lived together since February 6, 2008. The husband and the wife admitted to having engaged in extramarital relationships. The husband testified that the wife lived with George Craig; however, the wife testified that she lived alone. She said that Craig had spent two nights at the marital residence in 2006 but that she had never had a sexual relationship with Craig. The husband offered into evidence exhibits intended to prove that Craig had lived in the marital residence and had had a sexual relationship with the wife. The exhibits include a Valentine's day card that the husband characterized as a “love note” from Craig to the wife, the wife's 2005 calendar with her handwritten notations of meetings with “G,” mail that had been delivered to Craig at the marital residence in 2007, and a document indicating that the Mobile District Court had attempted service upon Craig at the marital residence in 2008 in an unrelated lawsuit.

The wife admitted that in 1991 she had “paid somebody $50 to sign” the husband's name on a mortgage-loan document on the marital residence and had used $16,000 in proceeds from the loan to “pay bills.” She also admitted to forging the husband's signature on a loan for a boat in 1992. The boat was eventually repossessed by the sellers.

The husband said that, at the time of the hearing, he resided in the marital residence and the wife was renting an apartment. The circuit court heard testimony indicating that the marital residence was valued at between $50,000 and $60,800. The husband testified that the parties also owned two lots adjoining the marital residence. He valued one of the lots at $5,000; no one testified as to the value of the second lot. The husband valued a third lot (“the Mauvilla lot”) at $10,000.¹ The wife valued property on Donald Street at “25.”

It is undisputed that the wife was not employed at the time of the trial. The wife testified that she had been employed at Saad's Healthcare, Inc. (“Saad's”), for 15 years. She first testified that she did not have a retirement plan with Saad's, but she later stated that she had had a 401K plan with Saad's and that, in 2008, she had “cashed it” for $16,000, which, she said, she had used to pay bills.² She said she had been unemployed for four years before the trial due to her health problems.

The husband testified that the wife had suffered a stroke, had had a heart-bypass surgery, and had had a stent procedure. The wife added that she had been diagnosedwith diabetes and high blood pressure and that she was slightly disabled by the stroke. The wife testified that she had qualified for Medicare benefits in March 2010 but that she owed $43,863 in unpaid medical bills that she had incurred before she qualified for Medicare. She said that she was unable to work and was receiving Social Security income in the amount of $943 per month. She testified that she collects rental income in the amount of $425 per month from a tenant renting the property on Donald Street; she said she pays $386 in homeowner's insurance on that property. ³ She provided testimony as to her monthly expenses, and she requested an award of $600 per month in alimony; the husband agreed that the wife was entitled to alimony. In addition, the wife requested an award of certain items of personal property from the marital residence.

The husband testified that he was 54 years old and that he suffered from high blood pressure, for which he took prescription medication. He denied that he had physically abused the wife. He said that he had been employed as a construction worker for 25 years by Local 119 in Mobile and as a pipefitter for 10 years by Local 72 in Atlanta, Georgia. At the time of the trial, the husband had been employed as a millwright for four years at the Alabama State Docks in Mobile. He said he earned between $40,000 and $45,000 per year and had a net income of $2,600 per month. He said that he had two retirement accounts but that he was not currently eligible to draw any retirement benefits.

The parties offered vague testimony concerning the husband's retirement accounts. According to a document offered into evidence by the wife, the husband's status in the Local 119 retirement account is “Terminated Vested” and his account became active on March 1, 1975—approximately six years before the marriage. The husband testified that he was not...