Walls v. Walls

• Decision Date: 21 February 2003
• Citation: 860 So.2d 352
• Parties: Tony Alan WALLS v. Anita Carol WALLS. Anita Carol Walls v. Tony Alan Walls.
• Court: Alabama Court of Civil Appeals

860 So.2d 352

Tony Alan WALLS v. Anita Carol WALLS.

Anita Carol Walls v. Tony Alan Walls.

2010860.

Court of Civil Appeals of Alabama.

February 21, 2003.

Rehearing Denied April 4, 2003.

Thomas M. Goggans, Montgomery, for appellant/cross-appellee Tony Alan Walls.

Jamie Logan and Dan Warnes, Guntersville, for appellee/cross-appellant Anita Carol Walls.

THOMPSON, Judge.

In February 2001, Tony Walls ("the husband") sued Anita Walls ("the wife") for divorce, alleging incompatibility of temperament and irretrievable breakdown of the marriage. In April 2001, the wife filed an answer and counterclaimed for a divorce; she requested that she be awarded custody of the parties' minor child; that the husband be required to pay both periodic alimony and alimony in gross; that the parties' property be equitably divided; and that the husband be required to pay her reasonable attorney fees. The wife requested an immediate hearing on the issues of support, custody, and visitation.

On May 1, 2001, the court entered a pendente lite order awarding the wife exclusive use of the parties' marital home until the final hearing and awarding custody of the parties' minor child to the wife, subject to the husband's visitation. The husband was ordered to pay $540.82 in monthly child support and to pay the $628 monthly payment on the indebtedness on the marital home and $50 per month for house insurance. He was also ordered to pay $48 per month for life insurance, $800 for household expenses, and the May and June 2001 payment on the wife's automobile. The court suggested that the wife select a vehicle "more suitable to the financial constraints under which the parties now operate," and it ordered the wife to seek employment. In the May 1, 2001, pendente lite order, the husband was awarded exclusive possession of a truck and of the automotive accessory and service business he operated.

The trial court conducted an ore tenus hearing. On February 22, 2002, the trial court entered a judgment divorcing the parties and dividing the parties' real and personal property. The trial court awarded primary physical custody of the parties' minor child to the wife and awarded visitation and the right to claim the income-tax-dependency exemption for the minor child to the husband. The husband was ordered to pay $349.09 per month in child support, to maintain a life-insurance policy for the benefit of the child, and to provide health-insurance coverage for the child. The trial court ordered that the parties' home, commercial real estate, and business assets be divided between the parties; the trial court ordered that if the parties were unable to divide the property between themselves in 30 days, the property was to be listed for sale and each party would be entitled to 50% of any proceeds remaining after all secured and unsecured creditors were paid. The wife was allowed to continue living in the marital home until it was sold. The divorce judgment also provided that beginning in March 2002, the husband's monthly support payment to the wife of $800 would be reduced by $100 each successive month until that obligation no longer existed. The trial court also ordered each party to be responsible for his or her attorney fee and the indebtedness on his or her automobile.

On February 27, 2002, the wife filed a motion for immediate relief, requesting the appointment of a receiver and a restraining order. The wife alleged that the husband had continually harassed her following the entry of the divorce judgment and that she was concerned he would dispose of business assets and conceal the profits he had derived from the sale of those assets. On March 5, 2002, the husband moved to alter, amend, or vacate the judgment or for a new trial. In that motion, the husband contended that the trial court had abused its discretion by ordering that all the assets be sold. The husband alleged that if he sold the business he would have no means by which to support himself or the parties' child. On April 18, 2002, the wife responded to the husband's motion to alter, amend, or vacate the judgment and, in that same filing, also sought to alter, amend, or vacate the divorce judgment.

On April 18, 2002, the trial court entered an amended divorce judgment. The court amended the property division provision by awarding the wife the marital home and ordering the husband to pay the mortgage indebtedness. The husband was awarded the parties' commercial real estate. The husband was also ordered to pay the wife $52,500 as an additional property settlement. The trial court did not modify that part of its divorce judgment requiring the husband to pay the wife a support obligation that started at $800 in March 2002 and reduced by $100 per month thereafter.

On May 17, 2002, the husband filed a motion to alter or amend the amended final judgment, contending that he could not afford to pay any of the moneys he was ordered to pay pursuant to the amended judgment. The husband filed a notice of appeal on May 29, 2002; at that time, the trial court had not yet ruled on his postjudgment motion. According to Rule 4(a)(5), Ala. R.App. P., a notice of appeal filed while a postjudgment motion is pending is deemed to be held in abeyance until either the trial court rules on the postjudgment motion or that motion is deemed denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Therefore, the husband's appeal was timely. The wife cross-appealed.

The record indicates that the parties were married in 1990 and that they lived together as husband and wife until the husband vacated the marital residence in February 2001. One child was born of the parties' marriage. The husband owns and operates a business known as "Walls Accessories," which sells radios, tires, wheels, hubcaps, and other vehicle accessories. He started this business in 1983 and incorporated the business in 1996. The husband testified that the business thrived until 1997 when the radio sales ended and the hubcap business changed. The husband testified that if business continued to decline, he would soon have to close his shop. The husband testified that he was issued a weekly check from the business in the amount of $400.

The husband admitted to having a problem with illegal drugs, specifically cocaine, beginning in 1989. He also admitted to spending money belonging to the business, at times approximately $1,000 a week, on drugs. He had attended several rehabilitation facilities and stated that he last used illegal drugs in January 2001. At the time of the hearing, the husband stated that he had not used illegal drugs for a year and a month. The husband estimated the marital home was worth approximately $75,000, and he valued the business at between $160,000 and $200,000.

The husband testified that the wife worked at a body shop when they married, but that she wanted to quit work and remain at home. The husband also stated, however, that during their marriage the wife had been trained in cosmetology and that she had worked in her own beauty shop for over a year. The husband stated that his wife closed the shop because she "got lazy."

A personal financial statement dated July 2001 showed the husband with a net worth of $400,000; however, the husband alleged this figure was inaccurate and that he was not aware of how that figure was obtained. The husband testified that the business lost $76,000 in 2001.

The husband testified that he was financially unable to make the court-ordered payments that totaled approximately $2,000 a month. A bookkeeper at Walls Accessories testified that the husband was not financially able to make the court-ordered payments and that making those payments would put him out of business. The bookkeeper testified that she had formulated a balance sheet for Walls Accessories in December 2001 that reflected the business's equity at negative $41,210.19, and reflected a business loss in that year in excess of $76,000.

However, several bank employees verified financial statements that the husband had submitted to the banks in conjunction with applications for loans. A statement dated July 2001, showed a net worth in excess of $400,000. Another personal financial statement, dated September 2000, reflected the husband's total assets at $811,000. The husband testified that the wife had submitted those valuations to the bank.

The wife testified that during the parties' marriage, all of the parties' living expenses were met through income from the business. She stated that she and her husband had used cash from the business for personal expenses. She further testified that the business had never reported its cash sales on its tax returns. The wife estimated that the cash sales could have totaled as much as $100,000 a year.

She alleged that the husband had spent $2,000 a week on drugs. The wife testified that the husband's drug abuse put "a strain on everything."

The wife alleged that the husband admitted to adulterous affairs with five different women during the parties' marriage. The wife further maintained that the husband had physically abused her on five different occasions. The husband denied both those allegations. The husband further stated that his wife caused the marriage to "bl[o]w up" and claimed that she was the reason he was a drug addict.

On appeal, the husband contends that the trial court's property division is inequitable and that it will financially "cripple" him. The wife argues in her cross-appeal that the trial court erred in failing to award her periodic alimony. The issues pertaining to an award of alimony and a property division are interrelated, and courts must consider them together. Albertson v. Albertson, 678 So.2d 118 (Ala. Civ.App.1996). Therefore, we address these two arguments together.

In reviewing the judgment of a trial court 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...