REL: 12/19/2008
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2008 -2009
_________________________
2070489
_________________________
Deborah Lynn Weeks
v.
Michael Roy Weeks
Appeal from Marion Circuit Court
(DR-07-176)
MOORE, Judge.
Deborah Lynn Weeks ("the wife") appeals from a judgment
entered by the Marion Circuit Court ("the trial court")
divorcing her and Michael Roy Weeks ("the husband") and
dividing the parties' property.
We affirm.
2070489
Procedural History
On August 8, 2007, the wife filed a complaint requesting
a
divorce
from
the
husband.
complaint on August 22, 2007.
The
husband
answered
the
After a trial, the trial court
entered a judgment on October 16, 2007, awarding the wife
$20,000 as alimony in gross, a 1999 Chrysler automobile, and
certain other items of personal property.
The trial court
awarded the husband his retirement accounts, the parties' real
property,
the
parties'
bank
accounts,
a
truck,
and
all
personal property not specifically awarded to the wife.
The
trial court ordered the husband to pay the debt associated
with the real property and the parties' credit-card debt.
On
November 15, 2007, the wife filed a motion to alter, amend, or
vacate the divorce judgment or, in the alternative, for a new
trial.
After a hearing, the trial court amended the judgment
to require the husband to pay the wife $350 per month in
alimony for a period of 10 years.
The wife filed her notice
of appeal to this court on February 22, 2008.
2
2070489
Issue
On appeal, the wife argues that the trial court exceeded
its discretion in its division of property because, she says,
the division of property is inequitable.
Standard of Review
Because the trial court heard oral testimony on this
issue, the ore tenus rule is applicable.
"'[W]hen
a
trial
court
hears
ore
tenus
testimony, its findings on disputed facts are
presumed correct and its judgment based on those
findings will not be reversed unless the judgment is
palpably erroneous or manifestly unjust.' Philpot v.
State, 843 So. 2d 122, 125 (Ala. 2002).
'"The
presumption of correctness, however, is rebuttable
and may be overcome where there is insufficient
evidence presented to the trial court to sustain its
judgment."' Waltman v. Rowell, 913 So. 2d 1083, 1086
(Ala. 2005) (quoting Dennis v. Dobbs, 474 So. 2d 77,
79 (Ala. 1985))."
Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005).
"[T]he ore tenus rule affords a correct and
necessary deference to the trial court's factual
findings, recognizing that an appellate court sees
only a written record and does not observe the
appearance,
behavior,
and
demeanor
of
live
witnesses.
The
ore
tenus
rule
simultaneously
requires the appellate court to review the trial
court's judgment to determine if it is supported by
the appropriate level of evidence. The rule thus
preserves the safeguards of the standard of proof
that was utilized by the trial court without
improperly usurping the trial court's role as
fact-finder."
3
2070489
J.C. v. State Dep't of Human Res., 986 So. 2d 1172, 1185-86
(Ala. Civ. App. 2007).
Additionally, "[a] property division
made by a trial court will not be set aside on appeal absent
a palpable abuse of its discretion."
TenEyck v. TenEyck, 885
So. 2d 146, 154 (Ala. Civ. App. 2003).
"The purpose of the division of marital property is to
give 'each spouse the value of [his or her] interest in the
marriage.
this.'"
Each spouse has a right, even a property right in
Lo Porto v. Lo Porto, 717 So. 2d 418, 421 (Ala. Civ.
App. 1998) (quoting Pattillo v. Pattillo, 414 So. 2d 915, 917
(Ala. 1982)).
"On appeal, the issues of alimony and property
division must be considered together. The trial
court's judgment on those issues will not be
reversed absent a finding that the judgment is so
unsupported by the evidence as to amount to an abuse
of discretion. [Parrish v. Parrish, 617 So. 2d 1036
(Ala. Civ. App. 1993).] The property division need
not be equal, but it must be equitable. Id. The
factors the trial court should consider in dividing
the marital property include 'the ages and health of
the parties, the length of their marriage, their
station in life and their future prospects, their
standard of living and each party's potential for
maintaining that standard after the divorce, the
value and type of property they own, and the source
of their common property.' Covington v. Covington,
675 So. 2d 436, 438 (Ala. Civ. App. 1996)."
4
2070489
Courtright v. Courtright, 757 So. 2d 453, 456 (Ala. Civ. App.
2000).
Facts
The parties were married on August 4, 1995.
The wife
testified that, approximately one week before the parties
married, she had filed a Chapter 7 bankruptcy proceeding in
the United States Bankruptcy Court.
marriage,
the
wife
was
employed
and
At the time of the
owned
a
house,
an
automobile, her furniture, and personal items; the husband was
employed and owned a house, $500 in a checking account, and an
automobile valued at approximately $2,200. Upon the marriage,
the wife quit her job, sold her house, netting $3,000, and
sold her refrigerator for $500, and she and her younger child
moved into the husband's house.
After moving in with the husband, the wife worked only
for a brief time, earning a total of $978.85.
The wife
testified that she became disabled in 1996, that she had
received a lump-sum Social Security disability payment of
$15,624.20 in 1998, and that she had since received a monthly
Social Security disability benefit, which was $740 at the time
of the trial.
The wife testified that she takes prescription
5
2070489
medication for pain and several other prescription medications
for various conditions.
worked
as
a
miner
During the marriage, the husband
about
60
hours
per
week
and
earned
approximately $60,000 to $70,000 annually. The husband worked
until January 2006, when he suffered an on-the-job injury to
his neck and lower back.
At the time of the trial, the
husband was receiving $629 weekly in workers' compensation
benefits for temporary total disability.
See Ala. Code 1975,
§ 25-5-57(a)(1).
The husband testified that the wife's monthly Social
Security disability benefits had always been deposited into
the wife's separate bank account. The wife testified that she
had used that money to purchase clothing for herself, the
husband, and her younger child.
She testified that she had
also used that money to get her hair done, to pay her medical
co-pays, to pay for her younger child's automobile insurance,
and to help her younger child pay his rent when he was
enrolled
in
college.
She
also
testified
that
she
had
purchased items for the house and had purchased groceries
"every now and then." The wife further testified that she had
used her lump-sum Social Security disability payment to pay
6
2070489
off the debt owed on an automobile that the husband had owned.
The husband testified that the wife had used the money in her
account for her personal items, for gifts, and to help her
children. He also testified that he had paid all the parties'
bills and had also paid for some of the wife's personal
expenses.
The husband testified that he had also contributed
financially to the wife's younger child's well-being.
The
husband testified that when the wife's younger child turned
16, he had purchased a car for the child and had paid the
child's automobile insurance.
The husband testified that the
wife had, without the husband's knowledge, allowed her older
child to use the husband's credit card to purchase appliances.
The evidence indicated that the wife's older child had written
the husband a check to pay the balance due on the credit card.
The wife testified that, after living in the husband's
house for some time, the parties decided to build a new house;
the husband sold his house and purchased a house along with
19.75 acres of land ("the real property"). The wife testified
that the husband had paid a portion of the purchase price of
the real property with $15,268.92 that he had netted from the
sale of his house and with money that he had borrowed from his
7
2070489
father and that he had financed the remainder of the purchase
price.
The wife testified that the husband had made all the
mortgage payments on the real property and had also made extra
payments toward the mortgage throughout the marriage.
time
of
mortgage.
the
trial,
the
parties
owed
$42,362.79
At the
on
the
The most recent tax appraisal valued the real
property at $164,425. The husband valued the real property at
approximately $165,000.
property at $229,000.
The wife, however, valued the real
The husband testified that he had told
a real-estate agent that he would sell the real property if he
could get $230,000 but that no such offer had been made.
In October 2002, the parties borrowed money on a homeequity line of credit to pay for a Chrysler automobile.
In
May 2007, the wife borrowed $3,000 from the parties' homeequity line of credit. The husband testified that he had made
all the payments on the line of credit.
The balance on the
home-equity line of credit was $11,652.32 at the time of the
trial.
The wife testified that the parties own a 1999 Chrysler
automobile and a 1994 truck.
She testified that the husband
had told her the Chrysler was worth $6,000; she testified that
8
2070489
the truck is worth about $4,000.
She testified that the
parties own a tractor and a lawnmower, which the husband had
told her were worth $5,500 and $1,300, respectively. She also
testified that the husband had told her they had $11,561 in a
savings account and $2,000 in a checking account. The husband
also owned a boat that he had prior to the parties' marriage.
The wife testified that she has $200 in her own savings
account.
The wife's jewelry had an appraised value of $12,987.05.
The wife testified that she had had some of the jewelry before
the parties' marriage and that the jewelry that she had
acquired during the
marriage
had
been gifts.
She also
testified that the husband had told her that the pieces of
jewelry he had given her were not gifts but, instead, were
investments.
personal
The
property
wife
testified
awarded
to
that
believed
husband
the
she
was
the
worth
approximately $6,000.
The wife introduced the testimony of a certified public
accountant.
The accountant testified that he had calculated
the present value of the husband's United Mine Workers of
America
pension
to
be
$125,563.
9
On
cross-examination,
2070489
however, the accountant admitted that he had calculated the
value based on the husband's entire employment period, not
just the portion of the husband's employment during the
parties' marriage.
The calculation also included the time
that the husband had been disabled and unable to work.
The
husband's younger son, who is a civil engineer, testified that
the present value of the husband's pension, taking into
consideration
only
the
husband's
parties' marriage, was $43,847.
employment
during
the
The wife testified that the
husband had told her that his separate 401k retirement account
was valued at $29,000.
After the birth of her grandchild in 2007, the wife made
two trips to Florida to assist with caring for the baby.
During the wife's second trip to Florida, the husband went to
Florida to pick up the wife and an argument ensued.
The
husband testified that the wife had subsequently telephoned
him on August 1, 2007, and told him that she wanted a divorce.
The wife testified that the husband had threatened to harm
her; the husband denied making any threats.
The husband
testified that, although he had helped the wife throughout her
years of disability, the wife had tried to get her mother to
10
2070489
stay with the husband at the hospital during the surgery for
his work-related injuries, instead of having to accompany him
herself.
The husband testified that, during the last year of
the parties' marriage, all the wife had done was lie around
the house in her pajamas and go out on the porch to smoke.
The wife testified that she planned on moving to Florida after
the divorce.
Analysis
The trial court awarded the wife the personal items she
had
requested,
$20,000
as
alimony
in
gross,
a
car
worth
$6,000, and $350 per month in periodic alimony for 10 years.
The trial court awarded the husband the real property, which
has a net value of $110,409.89 (using the tax-appraised value
of the property); both of his retirement accounts, valued at
$72,847
(including
only
the
present
value
of
the
pension
account accumulated during the parties' marriage), see Ala.
Code 1975, § 30-2-51(b); the parties' bank accounts, valued at
$13,761; a truck, valued at $4,000;
personal property valued at $15,500.
and various items of
Our calculations reveal
that the marital property awarded to the husband has a net
value of $196,517.89, or approximately 88.3% of the marital
11
2070489
estate, and that the marital property awarded to the wife has
a value of $26,000, or approximately 11.7% of the marital
estate. 1
We acknowledge that this court has reversed judgments
effectuating such a disproportionate division of property.
See, e.g., Mullis v. Mullis, [Ms. 2051068, June 22, 2007] ___
So.
2d
___,
___
(Ala.
Civ.
App.
2007);
Cunningham
v.
Cunningham, 964 So. 2d 678 (Ala. Civ. App. 2007); Kaufman v.
Kaufman, 934 So. 2d 1073 (Ala. Civ. App. 2005); and Adams v.
Adams, 778 So. 2d 825 (Ala. Civ. App. 2000).
However, "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."
Civ. App. 2004).
Yohey v. Yohey, 890 So. 2d 160, 164 (Ala.
"Even if a property division favors one
party over the other, that is not, in and of itself, an abuse
of discretion."
Jordan v. Jordan, 547 So. 2d 574, 576 (Ala.
1
In her brief to this court, the wife does not include the
value of her jewelry in her determination of the value of the
assets she was awarded. She asserts that her jewelry is not
marital property, either because it was owned by her before
the marriage or because it was given to her as gifts by the
husband during the marriage.
For purposes of our
calculations, we assume, without deciding, that the jewelry
was the wife's separate property, and we do not include the
jewelry as a marital asset in our analysis.
12
2070489
Civ. App. 1989).
Instead, the trial court must consider many
factors, including those set forth in Courtright, supra, in
determining whether the division of property is equitable
under the particular circumstances of the case.
Jordan, 547
So. 2d at 576; and TenEyck, 885 So. 2d at 154.
We find it notable that, in the present case, substantial
evidence indicates that the wife made only an insignificant
economic contribution to the marriage.
income
primarily
as
her
separate
The wife used her
money
throughout
the
marriage, using that money mostly to pay for her personal
expenses and for the personal expenses of her children from a
previous relationship.
The evidence indicates that all the
parties' major assets had been accumulated as a result of the
husband's working long hours as a miner.
It was undisputed
that the husband had made all the payments relating to the
real property, including making the payments on the homeequity line of credit, which had been used to purchase the
Chrysler automobile.
The husband also testified that he had
paid the household bills and had paid some of the wife's
personal expenses and some of the expenses of her younger
child from a previous relationship.
13
On the other hand, even
2070489
before
the
wife
became
disabled,
she
had
worked
only
sporadically.
Further, there is no evidence to indicate that the wife
made any significant noneconomic contribution to the parties'
marriage.
attempted
In fact, the evidence indicated that the wife
to
shift
the
responsibility
husband during his injury to her mother.
for
caring
for
the
Further, the husband
testified that, during the last year of the parties' marriage,
all the wife did was lie around the house in her pajamas and
go onto the porch to smoke.
Despite the lack of any significant contribution to the
acquisition of the marital property, the wife leaves the
marriage with
property
of
a
value
far greater
property she owned upon entering the marriage.
than the
Although
neither party will be able to maintain their former standard
of living because they
are
now
both disabled,
the wife
presented no evidence indicating that she will be unable to
meet her financial needs with the property and alimony she was
awarded.
Based on the foregoing, we conclude that the trial
court did not exceed its discretion in determining the "'value
of [the wife's] interest in the marriage.'"
14
Lo Porto, 717 So.
2070489
2d
at
421
omitted).
(quoting
Pattillo,
414
So.
2d
917)
(emphasis
Thus, we affirm the trial court's judgment.
AFFIRMED.
Pittman, Bryan, and Thomas, JJ., concur.
Thompson, P.J., concurs in the result, without writing.
15
