Diane Helen Allen v. Mark James Allen

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REL: 5/7/10 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter o f Decisions, Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2009-2010 2090098 Diane Helen Allen v. Mark James A l l e n Appeal from C o l b e r t C i r c u i t Court (DR-07-251) THOMAS, Judge. Diane Helen A l l e n husband") were m a r r i e d the wife ("the w i f e " ) i n 1985. fora divorce. a n d M a r k James A l l e n ( " t h e I n May 2 0 0 7 , t h e h u s b a n d s u e d The p a r t i e s a t t e m p t e d agreement; however, t h e m e d i a t i o n t o m e d i a t e an was u l t i m a t e l y u n s u c c e s s f u l . 2090098 After a parties 1981 trial i n May 2008, the t r i a l court on t h e ground o f i n c o m p a t i b i l i t y , Corvette automobile, awarded Expedition sport-utility responsible f o r t h e $33,000 awarded the husband vehicle and t o $34,000 made debt t h a t v e h i c l e , made t h e h u s b a n d r e s p o n s i b l e a $3,500 1984 credit-union C h r i s C r a f t boat, personal of property the t r i a l . marital The residence exhaust residence the remain were for debt 2006 him Ford solely with f o r t h e payment o f the husband a restored the parties the remaining further the market the proceeds any r e m a i n i n g residence, at the time ordered a n d be that the sold. The o f t h e s a l e be u s e d first associated proceeds w h i c h were e x p e c t e d to the wife. t h e mortgage payments with the marital the sale t o be a r o u n d on t h e m a r i t a l r e s i d e n c e was a c c o m p l i s h e d , the wife from T h e h u s b a n d was t o b e Pursuant t o the judgment, a f t e r residence pay on a a and then t o pay o f fc r e d i t - c a r d debt accumulated by awarded sale. court the the wife associated respective possession trial t h e mortgage parties; marital awarded and awarded i n their judgment r e q u i r e d t h a t to loan, divorced $600 p e r m o n t h of the $30,000, responsible until its the sale of the marital t h e h u s b a n d w o u l d be r e q u i r e d t o i n alimony 2 until h i s retirement, 2090098 after which The 11, the wife 2009, wife appealed we motions Allen v. Allen (Ala. Civ. had App. the wife been appeals in not adultery, by not wife the not also appeals trial court salary is awarded a b o n u s was $3,500 by was Norfolk 46 He $5,000 account an through 2007, testified 3 the on O c t o b e r on 7, the the wife ground residence, attorney fee the Railway. on the and employer; trial, base yearly was a 2008 home" a b o u t husband his by of that his February The The fees husband "took of appeal. time His t h a t he check. his denied appeal, of o l d at testified 3d amount o f a l i m o n y . attorney years bonus On court. abused i t s d i s c r e t i o n award February $ 1 0 , 0 0 0 b o n u s ; he the So. the m a r i t a l an Southern In o n l y $5,000. trial court divorce a sufficient requests who a wife d e n i a l of $74,658. from retirement the the trial August outstanding 2009), court granting wife and husband, employed trial awarding the awarding the The is by The two by a second time. t h a t the w a y s : by because 11, benefits. j u d g m e n t ; on addressed Aug. pension amended j u d g m e n t e n t e r e d argues e s s e n t i a l l y three divorce (table). i n an certain appeal 2071113, 2009) contempt motions the the not (No. receive from dismissed contempt 2009, and would has a retirement 2090098 account had contained taken $54,784.24 out two loans as of June against 2007. the He said account that totaling $9,463.12. The wife was 58 years o l d at the time of t r i a l . She i s not r e g u l a r l y employed and r e c e i v e s S o c i a l S e c u r i t y d i s a b i l i t y benefits that she said i n the amount of $600 p e r month. she had p r e v i o u s l y s a t w i t h said that they she had that had given purchased some e l d e r l y her "gifts" some "gifts," the said with people The including that during wife she had has had cervical, functioning The wife had the pendency and surgery the least and able t o remove divorce thyroid. depression. medications, Lexapro, She including is of a tumor action. on at Januvia, a forms wife with the However, sitting of has i t has been cancer, only The wife also one removed. from her back least an a n t i d e p r e s s a n t ; S y n t h r o i d , 4 The action. She from c h r o n i c o b s t r u c t i v e pulmonary disease and items people; to continue three quarter one or i l l of the divorce kidney, kidney, of at testify and a b o a t motor. not been the pendency did o f money. significant i n c l u d i n g a set of t i r e s wife She during suffers ("COPD"), d i a b e t e s , four prescription diabetes medication; a thyroid medication; 2090098 and A d v a i r , an i n h a l e d m e d i c a t i o n symptoms b u t l i k e l y p r e s c r i b e d of t h e w i f e ' s testimony not medications at t r i a l f o r h e r COPD. and d i a b e t i c indicated offer the option often prescribed that of continued The m o n t h l y c o s t supplies t h e husband's insurance f o r asthma i s $744. The employer d i d f o rthe wife under COBRA. The husband woman, Laura testified completed mediation. and the wife everything The w i f e , however, earlier computer calls. to tried an a g r e e m e n t an a f f a i r t o gather that another the parties on t h e d i v o r c e filed with outside Stinson. staying up late f o r late-night that the divorce Stinson. issues she h a d s u s p e c t e d an on t h e h u s b a n d ' s also t e s t i f i e d he after was " f i n a l " when h e b e g a n d a t i n g and h i s sneaking The w i f e dating The h u s b a n d s a i d t h a t he t h o u g h t t h a t h e testified based her before having 2007, had reached and t h a t much he h a d b e g u n i n November Stinson, that The w i f e said that that evidence t o prove the long-standing on t h e telephone t h e husband had complaint affair admitted he was she had nature of t h e h u s b a n d ' s r e l a t i o n s h i p w i t h S t i n s o n , b u t s h e was u n a b l e t o access parties' the husband's cellular-telephone computer. 5 records or the 2090098 The p a r t i e s h a d l i s t e d October the 2007. marital price According residence the r e a l t o r the m a r i t a l residence to the wife, for sale they she had a g r e e d t o f o r $174,900, had reduced the p r i c e t o $169,900. the amount marital while the outstanding residence; the wife the husband t e s t i f i e d The marital debt husband testified residence associated was with $960 testified that $200 had o f $12,500. p e r month a to repay remaining testified The balance p e r month. He 2006 a l l the b i l l s for the cable b i l l with payment on the that the Expedition Ford was on t h a t v e h i c l e with union, from the c r e d i t $3,500. Further, was a combined a loan the paid which husband a l l the debts of the p a r t i e s associated with the m a r i t a l residence and t h e r e s i d e n t i a l t e l e p h o n e 6 the or $128,000. explained cards on $124,000, t h a t he of that so he husband a l s o t e s t i f i e d t h a t he h a d b e e n p a y i n g and price, i t was the mortgage The p a r t i e s h a d t w o C h a s e c r e d i t balance list associated $ 3 3 , 0 0 0 ; he s a i d t h a t h i s m o n t h l y p a y m e n t $602. the of the m a r i t a l t h a t i t was $ 1 2 7 , 0 0 0 the p a r t i e s ' was The p a r t i e s d i s a g r e e d mortgage that list The h u s b a n d t e s t i f i e d h a d r e c e i v e d no o f f e r s a t t h e o r i g i n a l of which had s u g g e s t e d and t h e v a l u e r e s i d e n c e b a s e d upon an a p p r a i s a l . for sale i n bill, except both of 2090098 w h i c h s e r v i c e s he h a d h a d d i s c o n n e c t e d . parties' cellular-telephone bill, The h u s b a n d p a i d which apparently was f a m i l y - t y p e p l a n , and b o t h p a r t i e s ' c e l l u l a r - t e l e p h o n e use reflected The on one was bill. testified that the parties a 1981 t h a t was w o r t h $13,700. The husband t e s t i f i e d that the C o r v e t t e have testified owned was p a i d f o r , b u t t h e n he t e s t i f i e d $3,000 that in debt associated the Corvette had been with a gift h u s b a n d a n d t h a t i t was w o r t h $ 2 0 , 0 0 0 . that i t might i t . The to her worth $3,900; the wife testified The p a r t i e s a l s o that wife from the a r e s t o r e d 1985 C h r i s C r a f t boat, which the husband was a husband Corvette still the owned testified t h e b o a t was worth t h a t he w a n t e d t h e trial $20,000. At court trial, to the husband t e s t i f i e d order the house planned, and t o order mortgage and o t h e r were to associated month be i n alimony. the p a r t i e s m a r i t a l debt before The awarded debt, as and had already t h a t t h e p r o c e e d s be u s e d t o s a t i s f y t h e divided equally. wanted sold, wife, the t o have The the remaining however, marital proceeds testified residence, that with t h e husband pay h e r $2,600 husband 7 testified that he she i t s per understood 2090098 that he would likely alimony after the should all be until testified the that of h i s The house responsible debts value have he pay wife some s o l d ; he also agreed mortgage was the on f o r the residence was was willing retirement wife to argues to account that as the The husband trial wife half testified having wife an that affair testified her, the she before that husband had he the suspected also the court erred by not Although the that the husband was for divorce filed and although the husband testified of and 2007. d i v o r c i n g t h e p a r t i e s on t h e g r o u n d o f a d u l t e r y . wife he residence the o f May of that the sold. give amount had that admitted he had the not affair begun to his r e l a t i o n s h i p w i t h S t i n s o n u n t i l a f t e r the p a r t i e s had mediated t h e i r d i v o r c e i n November 2007. adultery was presented alleged confession evidence upon adultery. 1996) ("The confession divorce at t r i a l . on which The of to testimony the wife's adultery, of adultery grounds other evidence of testimony of the husband's sufficient alone, is not the base a divorce on 676 So. 2d 365, 366 (Ala. Civ. the other Y a t e s v. Y a t e s , of No one s p o u s e as i s , alone, of insufficient adultery, 8 to and that to ground of App. spouse's warrant testimony a is 2090098 admissible establish wife's only the i n c o r r o b o r a t i o n of other offense."). testimony of the evidence tending Without evidence corroborating confession or evidence more t h a n a mere s u s p i c i o n o f a d u l t e r y , t h e not have Yates, granted 676 court's So. the divorce 2d a t 366. decision to on the T h u s , we grant the trial court of could adultery. e r r o r i n the divorce on the establishing ground f i n d no to the trial ground of incompatibility. The and wife's alimony a l i m o n y and means are parties' (Ala. is arguments award. the The property. court has of property, and necessary Grimsley v. and division i t may use to equitably Grimsley, 545 over whatever divide So. 2d the 75, 77 The o n l y l i m i t a t i o n on t h a t discretion of property under of the particular what i s e q u i t a b l e f a l l s So. 2d 812, 813 be wrong. equitable case, and to the trial ( A l a . C i v . App. i t i s so u n s u p p o r t e d by palpably property wide d i s c r e t i o n and c o u r t ' s j u d g m e n t i s presumed c o r r e c t and unless the 1989). circumstances v . R o s s , 447 concern division the determining trial division reasonable C i v . App. that next the task court. 1984). will not The be 545 9 So. 2d at 76. of Ross trial reversed t h e e v i d e n c e so as t o be Grimsley, the "The unjust trial 2090098 court has no determination Jones, the 560 So. the capacities, of the standards of alimony division, including rigid 2d the 1093 trial parties' their marriage, age 485 the v. This c o u r t must c o n s i d e r together may So. 2d when 1995), divorce 1174, the M u r p h y v. The f a c t s and Murphy, wife adultery, noted before because the she argues facts this So. 2d and 620, 623 that, in light property. App. decision 2d 118, 1986). division of the 120 and trial (Ala. Civ. circumstances of of husband's the reviewed. ( A l a . C i v . App. the each 1993). alleged s h o u l d have been awarded the m a r i t a l r e s i d e n c e . parties had i n s u f f i c i e n t to support 2d a t 366. of m a r i t a l of the case being above, the husband d i d not the earning c o u r t must a l s o c o n s i d e r circumstances 624 So. factors, duration issues of property 678 v. In making future (Ala. Civ. the Jones several and the conduct, the type 1176 reviewing case are d i f f e r e n t , particular As and, and base 1990). consider health, their value to of property." ( A l a . C i v . App. c o u r t , A l b e r t s o n v. A l b e r t s o n , App. which respective present and and division court Lutz alimony Lutz, 1092, and on Notably, separated, admit committing and the a f i n d i n g of a d u l t e r y . the w i f e had 10 requested adultery evidence Yates, i n her 676 answer was So. that 2090098 the marital residence be a d d i t i o n , the p a r t i e s had on the market. The the the proceeds i t s s a l e and was and the retirement the parties' the award of the from i t s s a l e to the w i f e , a f t e r mortgage divided. In already p l a c e d the m a r i t a l residence marital residence s i g n i f i c a n t a s s e t , and proceeds s o l d and of remaining satisfaction of c r e d i t - c a r d debt, the the only is equitable. The wife discretion She also in contends complains awarding that order to sold, the w i f e w i l l at meet she her that she residence with the the likely marital the only requires $600 a Once not be approximately residence was per court month l a r g e r award need to secure would trial the abused i t s in of alimony in marital residence is a r e s i d e n c e ; she able to $30,000 sold. alimony. testified purchase she would Thus, the a new receive wife will i n c u r r e n t a l e x p e n s e o f some a m o u n t f o r an a p a r t m e n t house. The exceed her The must her expenses. trial once that pay wife's $600 p e r significant month i n d i s a b i l i t y husband's net the monthly medical income per remaining expenses will income. month i s a r o u n d $3,000. indebtedness or on the 2006 He Ford E x p e d i t i o n s p o r t - u t i l i t y v e h i c l e ; t h e p a y m e n t s on t h a t v e h i c l e 11 2090098 are $602 p e r month. credit-union payments, loan. and approximately expenses. He must Thus, the v e h i c l e a l s o pay $200 p e r month after paying payments, alimony, on the loan would the husband the have $1,600 p e r month i n income t o pay f o r h i s l i v i n g In l i g h t of the wife's limited income, her health p r o b l e m s and t h e e x p e n s e s a s s o c i a t e d w i t h them, and t h e l e n g t h of the trial per parties' court marriage, we agree abused i t s d i s c r e t i o n with by o n h e r own 431 disability a $100 the wife the trial alimony had that awarding her only 2004) court's (reversing a property a w a r d when 2001) award had 892 the evidence p o t e n t i a l than not l e f t M a y h a n n v . M a y h a n n , 820 (reversing a property $600 needs So. the husband with that and means t o So. 2d 836, division 2d division established the wife the t o pay t o meet h e r b a s i c See K e l l y v. K e l l y , f a r less earning s e c u r e a home); App. income. ( A l a . C i v . App. and Civ. wife m o n t h i n a l i m o n y when t h e h u s b a n d h a s t h e a b i l i t y more a n d she d o e s n o t have t h e a b i l i t y 426, the 839 ( A l a . and alimony award o f $350 b e c a u s e t h e awards were i n e q u i t a b l e and l e f t t h e wife and nothing b u t an a u t o m o b i l e , a bedroom suite, and cookware china). The wife's final argument 12 i s that the trial court and 2090098 this court should a w a r d h e r an a t t o r n e y a w a r d o f an a t t o r n e y the trial court's fee i n a divorce fee. Typically, case i s a matter the within discretion. "Whether t o a w a r d an a t t o r n e y f e e i n a d o m e s t i c r e l a t i o n s case i s w i t h i n the sound d i s c r e t i o n o f the t r i a l c o u r t and, a b s e n t an abuse o f t h a t d i s c r e t i o n , i t s r u l i n g on t h a t q u e s t i o n w i l l n o t b e reversed. T h o m p s o n v . T h o m p s o n , 650 S o . 2 d 928 ( A l a . C i v . A p p . 1 9 9 4 ) . ' F a c t o r s t o be c o n s i d e r e d b y t h e t r i a l c o u r t when awarding such fees include the financial circumstances of the p a r t i e s , the p a r t i e s ' conduct, the results of the litigation, and, where appropriate, the trial court's knowledge and e x p e r i e n c e as t o t h e v a l u e o f t h e s e r v i c e s p e r f o r m e d by the a t t o r n e y . ' F i g u r e s v . F i g u r e s , 624 S o . 2 d 1 8 8 , 191 ( A l a . C i v . A p p . 1 9 9 3 ) . " Glover v. Glover, (emphasis added). The per So. evidence at t r i a l month $3,000 678 in disability p e r month reversing the 2d 174, ( A l a . C i v . App. e s t a b l i s h e d that the wife income i n n e t income trial 176 court's compared alimony award f a c t t h a t t h e w i f e has meager r e s o u r c e s her attorney award, we reverse the trial failed t o award the w i f e husband's of our court's are i t i s In l i g h t of w i t h which t o pay reversal judgment of the insofar any amount f o r an a t t o r n e y 13 We because of t h i s case. the in light the had $600 from h i s employment. i n e q u i t a b l e under the circumstances and to 1996) alimony as i t fee. See 2090098 Murphree 1991) to v. Murphree, (reversing award a trial the wife finances"). On awarding the wife 5 7 9 S o . 2 d 6 3 4 , 637 (Ala. Civ. App. c o u r t ' s judgment i n s o f a r as i t f a i l e d an a t t o r n e y remand, fee i n light the t r i a l a reasonable court o f h e r "meager should consider attorney fee. The w i f e i s awarded an a t t o r n e y AFFIRMED I N PART; REVERSED P.J., and Pittman f e e o f $1,500 I N PART; AND on appeal. REMANDED WITH INSTRUCTIONS. Thompson, Bryan, J . , concurs and Moore, J J . , concur. i n the result, without 14 writing.

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