Yohey v. Yohey

• Decision Date: 09 April 2004
• Citation: 890 So.2d 160
• Parties: Jerry Lee YOHEY v. Carolyn Ann YOHEY.
• Court: Alabama Court of Civil Appeals

890 So.2d 160

Jerry Lee YOHEY v. Carolyn Ann YOHEY.

2020884.

Court of Civil Appeals of Alabama.

April 9, 2004.

Susan C. Conlon, Huntsville, for appellant.

William P. Burgess, Jr., Huntsville, for appellee.

CRAWLEY, Judge.

Jerry Lee Yohey ("the husband") appeals from a judgment divorcing him from Carolyn Ann Yohey ("the wife"). He argues that the trial court abused its discretion by awarding the wife what, he says, equals 86 percent of the marital property and periodic alimony amounting to what, he claims, is 83 percent of his net income.

The parties were divorced in 2002 after a 20-year marriage. Each had been married once before, and each had adult children from their prior marriage. No children were born of this marriage. At the time of trial, the husband was 65 years old and the wife was 60 years old. With the exception of the wife's high blood pressure, each of the parties is in good health. The husband has a bachelor's degree in mechanical engineering from Purdue University and a master's degree in business administration from the University of Michigan. He is licensed as a certified public accountant in Michigan and Georgia. In 1980, the husband, who was earning $140,000 annually as a partner in the accounting firm of Ernst & Whinney in Atlanta, Georgia, was appointed by the firm as the regional director of management consulting for the southeast region. The parties married in 1982 and lived in the Atlanta area for the first six years of their marriage. In 1988, the husband, whose annual salary was then $265,000, left Ernst & Whinney and purchased a Precision Tune franchise, an automobile service business, in Madison County, Alabama. The parties moved to Huntsville, and the husband eventually bought a second Precision Tune franchise in the area.

At the time of the trial in this case, the husband had sold both Precision Tune franchises. Following the sale of the first franchise, the husband was named as a defendant in a lawsuit concerning the lease of the building in which the franchise was operated. The husband testified that he has a $54,500 contingent liability arising out of that litigation.

The husband sold the second Precision Tune franchise for $100,000 to a Mr. and Mrs. Parker, who retained him as a financial consultant to "do the company books" for $500 per month. The husband testified that Mr. Parker died, whereupon Mrs. Parker terminated his consulting contract and failed to pay him $65,000 of the purchase price for the franchise. The husband characterized the balance due on the sale as a contingent asset.

The wife has a high-school diploma. After the parties moved to Huntsville, the wife's adult daughter and three-year-old grandson lived with them. During the marriage, the wife worked outside the home for only three or four months, during which time she provided part-time uncompensated clerical assistance at the Precision Tune franchises. The husband handled all of the parties' financial matters, including paying the bills, handling investments, and conducting retirement planning. At trial, the husband acknowledged that the wife has few marketable skills, little or no earning potential, and is "totally financially dependent" on him.

The wife testified that she believed that the parties had a good marriage until 2001, when she noticed that the husband was spending an inordinate amount of time on the computer in his study. She said that he spent basically the whole day in the study, coming out only for meals. The wife thought the husband was doing accounting work until, one day in April 2001, while she was searching the Internet for information concerning a proposed trip to Disney World, she discovered erotic electronic-mail messages and nude photographs that the husband had sent to and received from numerous women via the Internet.

At trial, the husband identified a set of handwritten notes that he had compiled; those notes identified the screen names, physical descriptions, and sexual preferences of "over a hundred" women with whom he had engaged in "cybersex" relationships. The husband admitted that he had had a sexual affair with a woman he had met in an Internet "chat room." The husband's sexual encounters with this woman had occurred in Dallas, Texas; Huntsville, Alabama; and at the parties' condominium in Orange Beach, Alabama. The husband acknowledged that the wife loved him "very deeply" and that he had violated a pact the parties had made at the time of their marriage to be faithful to each other.

The trial of this case began on July 10, 2002. The husband admitted that, despite the existence of a standing pendente lite order restraining him from expending any moneys other than for customary living expenses, he had withdrawn $89,000 from his individual retirement accounts ("IRAs") since March 2002. He stated that he had used those funds to pay off a $16,000 note to Regions Bank, to pay estimated taxes and past-due taxes, to pay approximately $3,000 per month in living expenses for himself, and to pay $1,300 per month in pendente lite support to the wife. The husband explained that he had not filed income-tax returns for the years 1999, 2000, and 2001.

At trial, the husband's financial expert testified that 52.44 percent of the funds in the husband's IRAs had been accumulated during the parties' marriage and were, therefore, marital property; the trial court accepted that figure in making its property division. Apparently, the trial court also found that a parcel of real estate — an undeveloped lot on Lake Charlevoix in East Jordan, Michigan, that the husband had purchased before the marriage — was the husband's separate property.

The trial court divorced the parties on the ground of the husband's adultery, specifically noting that it "consider[ed] the conduct of the parties with reference to the cause of the divorce to be a particularly significant factor in its determination as to alimony and the division of property." The court entered a judgment that awarded the wife $1,600 per month in periodic alimony, divided the marital assets and debts, and awarded the wife an attorney fee of $13,775. The trial court ordered that the marital residence, which was valued at $180,000 and was subject to a mortgage of $112,100, be sold; the court directed that the wife receive 75 percent of the net proceeds from the sale. It awarded the wife the parties' Orange Beach condominium, which the parties agreed had a fair market value of $343,000, including all furniture, furnishings, and contents, and made the wife responsible for the existing first mortgage indebtedness of $151,600. It also awarded the wife $222,500 from the husband's IRAs; her IRA in the amount of $16,500; the bank accounts in her name; one-half of any tax refunds due to the parties upon the filing of joint tax returns; and one-half of any sums received from the sale of the Precision Tune franchise to the Parkers. The court awarded the wife an equitable share of the contents of the marital home; a 1993 Plymouth Acclaim automobile; and her personal property, clothing, and jewelry.¹ The court ordered the wife to be responsible for any debts, including $6,000 of credit-card indebtedness, that she had incurred in her name alone.

The court awarded the husband 25 percent of the net proceeds from the sale of the marital residence; an equitable portion of the contents of the marital home; the bank accounts in the husband's name; three vehicles — a 1981 Cadillac, a 1973 truck, and a Honda Accord;² the remainder of the marital portion of the husband's IRAs not awarded to the wife, totalling $245,671; one-half of any tax refunds due the parties; one-half of any sums received from the sale of the Precision Tune franchise to the Parkers; and the Lake Charlevoix property in Michigan, valued at $300,000. The husband was also ordered to maintain his existing life insurance policies with the wife as the beneficiary.

The trial court made the husband responsible for the following debts and liabilities: the mortgage indebtedness on the marital home pending its sale; any judgment arising out of the lawsuit concerning the leased premises for the first Precision Tune franchise; any tax liability of the parties, including delinquent taxes and penalties arising out of the husband's failure to file income-tax returns for three years; indebtedness to the husband's parents in the amount of $13,500; and credit-card indebtedness in the amount of $12,000.

I.

The husband argues that the trial court abused its discretion by awarding the wife what, he says, equals 86 percent of the marital property. Initially, we note that there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets. See Slater v. Slater, 587 So.2d 376 (Ala.Civ.App.1991)

. See also Jenkins v. Jenkins, 781 So.2d 986 (Ala.Civ.App.2000)(holding that, in light of the wife's admission of adultery and husband's testimony that continuation of his business depended on sufficient assets to maintain the bonding capacity of his construction company, the evidence supported a property division awarding the husband 72 percent and the wife 28 percent of the marital assets after a 34-year marriage).

A trial court is free to consider the facts and circumstances unique to each individual case in fashioning an award. Brewer v. Brewer, 695 So.2d 1 (Ala.Civ.App.1996). The only limitation on the trial court's broad discretion in dividing the marital estate is that the property division must be equitable under the circumstances of the particular case; the task of determining what is equitable falls to the trial court. Cantrell v. Cantrell, 773 So.2d 487 (Ala.Civ.App.2000). A trial court's determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. See Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993)

. "This presumption of correctness is...