Whaley v. Whaley

• Citation: 261 So.3d 386
• Decision Date: 17 November 2017
• Docket Number: 2160267
• Parties: Kennon W. WHALEY v. Rhonda West WHALEY
• Court: Alabama Court of Civil Appeals

261 So.3d 386

Kennon W. WHALEY

v.Rhonda West WHALEY

2160267

Court of Civil Appeals of Alabama.

November 17, 2017

Randall W. Nichols of Massey, Stotser & Nichols, PC, Birmingham, for appellant.

J. Allen Schreiber and Lauren E. Miles of Burke Harvey, LLC, Birmingham, for appellee.

MOORE, Judge.

Kennon W. Whaley ("the husband") appeals from a judgment entered by the Lee Circuit Court ("the trial court") divorcing him and Rhonda West Whaley ("the wife"). We reverse the trial court's judgment.

Procedural History

This is the second time these parties have been before the court. See Whaley v. Whaley, 218 So.3d 360 (Ala. Civ. App. 2016). This court set forth the pertinent procedural history in Whaley as follows:

"On April 3, 2013, [the wife] filed a complaint seeking a divorce from the husband. On May 10, 2013, the husband answered the complaint and counterclaimed for a divorce. On June 7, 2013, the wife filed a reply to the counterclaim.

"After a trial, the trial court entered an order, on September 29, 2014, divorcing the parties; awarding the parties joint custody of the parties' children and specifically setting the husband's custodial periods as every other Friday night through the following Wednesday morning, on holidays in alternating years, and on certain other special occasions; and reserving the issues of child support, alimony, and property division. After a second trial on the remaining issues, the trial court entered a judgment on November 27, 2015, that, in pertinent part, imputed monthly income of $8,500 to the husband and $1,732 to the wife; ordered the husband to pay $1,127 per month in child support; ordered the husband to pay the wife periodic alimony in the amount of $3,673 per month; ordered the husband to pay $35,000 to the wife as a property settlement; awarded the marital home to the husband; awarded the wife her preexisting 50% share of J & S Investments, LLC; ordered the husband to pay the debts associated with the businesses owned by the parties; ordered the husband to pay 80% of the parties' joint debts; awarded the wife 20% of ‘KRIP, LLC, including its intellectual property, proprietary information, patents, patent applications, processes, licenses, and other property rights’; awarded the wife 20% of B & W Holdings, LLC; and awarded the wife 40% of the following businesses: ‘K2 Enterprises, LLC, including its intellectual property, proprietary information, patents, patent applications, processes, licenses, and other property rights,’ Dixieland Metals of Alabama, LLC, Whaley Holdings, LLC, Southeastern Stud, LLC, Southeastern Stud and Components, Inc., K4 Assets, LLC, Dixieland Metals of Mississippi, LLC, and Mid–South Steel, LLC. The trial court further ordered:

" ‘Until such time as [the] Husband's ... stock or membership interests are more formally transferred to [the] Wife as set out above, [the] Wife shall receive an amount of money equal to 67% of all direct or indirect distributions, payments, or other income, from such companies to [the husband]. Such payments to the Wife shall be made within 24 hours of such payments being made to [the husband].’

"Finally, the trial court ordered:

" ‘From almost the beginning of this case, the Husband has been ordered to provide the Wife as much for legal expenses as he spent on himself. Thus far he has managed not to pay his attorneys since that time, but acknowledges owing them at least $150,000 for their extensive services in this case. Therefore the Court awards the same amount to [the] Wife. The HUSBAND shall pay to the WIFE, as an allotment for attorney fees and legal expenses, the sum of $150,000 ..., for which amount judgment is entered in favor of [the] WIFE against the HUSBAND, for which execution may issue as allowed by law.’

"(Capitalization in original.) On December 29, 2015, the husband filed a postjudgment motion. On January 8, 2016, the husband filed his notice of appeal. The notice of appeal was held in abeyance until February 9, 2016, when the postjudgment motion was denied. See Rule 4(a)(5), Ala. R. App. P."

218 So.3d at 362–63.

On appeal, the husband challenged, among other things, the trial court's division of property, the award of alimony to the wife, and the award of attorney's fees to the wife. The husband specifically argued that that portion of "the trial court's judgment awarding the wife 20% of KRIP, LLC (‘KRIP’), was in error because, he said, that corporation is governed by an operating agreement that prevents the transfer of any membership interest without the consent of the other members." 218 So.3d at 365. This court agreed, and we reversed the trial court's judgment and remanded the cause for reconsideration of the entire division of property and the award of alimony in light of our opinion. 218 So.3d at 365–66. We pretermitted discussion of the remaining issues.

On remand, the trial court entered an amended judgment on September 29, 2016. On October 28, 2016, the husband filed a postjudgment motion. On November 29, 2016, the wife responded to the postjudgment motion and moved the trial court to hold the husband in contempt. On December 14, 2016, the trial court entered a judgment vacating the September 29, 2016, amended judgment and entering a new amended judgment. With regard to the division of property and the award of alimony, the December 14, 2016, amended judgment awarded the wife $610,000 in alimony in gross "payable immediately"; "her pre-existing 50% [interest in] J & S Investments, LLC"; and 40% of Whaley Holdings, LLC, Southeastern Stud, LLC, Southeastern Stud and Components, Inc., K4 Assets, LLC, Dixieland Metals of Mississippi, LLC, and Mid–South Steel, LLC. The amended judgment also awarded the wife "l00% of K2 Enterprises LLC, including its real property, equipment, contractual rights, intellectual property, proprietary information, patents, patent applications, processes, licenses, leases and all other property rights," and "51% of Dixieland Metals of Alabama, LLC, including its real property, equipment, contractual rights, intellectual property, proprietary information, patents, patent applications, processes, licenses, leases and all other property rights." The trial court did not award the wife any percentage of KRIP, LLC ("KRIP"), or B & W Holdings, LLC. All other provisions in the November 27, 2015, judgment, including the imputation of $8,500 in monthly income to the husband, the attorney-fee award of $150,000, and the periodic-alimony award of $3,673 per month, were left unchanged.¹

On January 23, 2017, the husband filed his notice of appeal.

Facts

At the trial, the husband testified that the only asset he owns an interest in that has positive equity is a limited-liability company with the name "Eco–Green." He testified that K2 Enterprises, LLC ("K2"), owns half of Eco–Green and that K2's portion of Eco–Green is valued at $222,500.² According to the husband's evidence, Dixieland Metals of Alabama, LLC ("Dixieland Metals–Alabama"), has assets in the amount of $1,601,490 and liabilities in the amount of $2,006,984, for a negative equity of $405,494. He testified that Dixieland Metals–Alabama's bank account had a balance of $74,000.

According to the husband, Southeastern Stud and Components, Inc., has no income, has no bank account, and is in bankruptcy. He also testified that J & S Investments, LLC, and B & W Holdings, LLC, have no bank accounts and no income and that their only assets are in the process of foreclosure. The husband's evidence indicated that KRIP; Whaley Holdings, LLC; Southeastern Stud, LLC; K4 Assets, LLC; and Mid–South Steel, LLC, have no income, no assets, and no bank accounts. He also testified that K2 has no income, no bank account, and no assets other than its 50% ownership of Eco–Green. Finally, he testified that Dixieland Metals of Mississippi, LLC, has no bank account, no income, and no assets, and that it owes $300,000 to the State of Mississippi.

The husband testified that the marital home had been foreclosed upon, and there is a lawsuit pending against the parties regarding the second mortgage balance of $450,000. The husband testified that he has a life-insurance policy with a cash value of $25,256.89, and he has a bank account with a balance of between $8,000 and $9,000.

The husband testified that Mill Steel, a creditor of Southeastern Stud and Components, Inc., had forced Southeastern Stud and Components, Inc., into involuntary bankruptcy and had tried to exercise membership rights to the following limited-liability companies that had signed as obligors on an agreement involving Southeastern Stud and Components, Inc.: KRIP, Dixieland Metals–Alabama, K2, J & S Investments, LLC, Mid–South Steel, LLC, and Southeastern Stud, LLC. He testified that Mill Steel had not yet been successful in exercising membership rights to K2.

According to the husband, KRIP owns the rights to certain patents, and, he said, if KRIP receives a $25,000,000 investment, KRIP could obtain royalties off the patent up to $2,000,000 per year. He testified, however, that he had been unable to find an investor.

The husband testified that his gross income consists of $9,821.89 per month that he receives from Eco–Green through the 50% interest that K2 owns in Eco–Green; he testified that his net income is $7,300 per month. According to the husband, the parties' personal and business debts total $4,682,011.03.

The wife, on the other hand, testified that, during the marriage, the husband had deposited approximately $19,000 into their bank account every month. She also testified that the husband had told her in December 2014 that he had never received less than $10,000 per month from K2's interest in Eco–Green and that he had usually received between $10,000 and $15,000 a month from that source. She testified that, during the marriage, the parties had purchased jewelry worth at least $60,000. She also testified that she has approximately $10,000 in personal property and that the husband has personal property valued...