Roger D. Sherrill v. Selina Kay Sherrill
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Rel: September 7, 2012 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 R e p o r t e r o f D e c i s i o n s , 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 SPECIAL TERM, 2012 2100681 Roger D. Sherrill v. S e l i n a Kay S h e r r i l l Appeal from Limestone C i r c u i t Court (DR-09-532) PITTMAN, Judge. R o g e r D. S h e r r i l l of the Limestone Sherrill ("the husband") a p p e a l s Circuit ("the w i f e " ) , liabilities, ordering Court from a judgment d i v o r c i n g him from dividing the parties' him t o pay the wife S e l i n a Kay assets periodic and alimony, 2100681 finding him in provisions ordering of him contempt the trial to pay of September marriage. alleging and a wife Both sought other shift the filed a had alleging that parties moved historic a years divorce, emotionally, the wife the had lite husband marital also committed relief; sought, home. The the among evidence and as a h a i r d r e s s e r f o r the that the husband had l a s t 15 worked wife years the third an h o u r l y e m p l o y e e a t N a v i s t a r D i e s e l o f A l a b a m a 5 separated, "Anderson the for 25 a t a h e a r i n g i n O c t o b e r 2009 i n d i c a t e d t h a t t h e last building of and counterclaimed, f o r pendente and order, after physically, and marriage as complaint husband support four Background The spousal of fee. separated been been s e l f - e m p l o y e d the parties wife things, possession presented of the lite attorney's Procedural abusive. divorce adultery. and an violations pendente husband the verbally seeking had The that wife 2009, willful court's the Factual In for years the in of the parties Anderson. Family Hair building; marriage. purchased The a wife's Care," the Two was other before 100-year-old beauty salon, l o c a t e d i n one rooms 2 years in the for they historic known room building of as the were 2100681 designated as "Country display antique premises also apartment i n which Porch furniture included sole joint separate checking f o r the toward the furnishings detached wife beauty overhead salon. for accounts The and for garage son were used sale. and a and paid salon overhead and expenses cash of the they had registers for expenses contributed antique was maintained a expenses; separate The lived. The p a r t i e s household to garage owned t h e a n t i q u e s t o r e ; t h e w i f e account business. month a owner o f t h e b e a u t y checking each and the p a r t i e s ' adult The p a r t i e s j o i n t l y the Antiques" o f $800 $200 per store. per week The w i f e ' s n e t i n c o m e f r o m t h e b e a u t y s a l o n was a p p r o x i m a t e l y $ 4 0 0 per week month, o f w h i c h , i n cash she s a i d , payments customers. She customers' checks and the remainder testified in her she h a d r e c e i v e d $40 t o $60 p e r that she checking i n checks had always account; for incidental husband's net expenses. income in The 2008 3 evidence was had not, them t o pay indicated approximately her deposited she however, d e p o s i t e d t h e cash payments but had used from that the $60,000. 2100681 F o l l o w i n g the h e a r i n g , lite order requiring indebtedness t h a t he husband t o pay to the disparity in that the from store's income of lite order, location the wife f o r which In experienced his he a net him 2010, no longer of or ordering moved obligation, parties concealing to $250 p e r a the pendente different month. to alleging lost contracts. a n n u a l wages were $47,985.60 meet the other; salon r e c e i v i n g overtime m o n t h l y income of to the terminate that his he had a s i g n i f i c a n t r e d u c t i o n i n i n c o m e as a c o n s e q u e n c e was gross beauty husband of h i s employer's having that her rent alimony "due A f t e r the e n t r y of the the lite the support p r o h i b i t i n g the transferring, paid 2010, family awarding parties"; c l o s e d ; and moved January pendente a l l o f t h e m a r i t a l home; p r o h i b i t i n g assets. she the or i n t i m i d a t i n g the removing, i n v e n t o r y and pay $500 p e r m o n t h i n s p o u s a l s t o r e be selling, to a pendente p r e v i o u s l y been p a y i n g ; o r d e r i n g from h a r a s s i n g antique court entered husband husband temporary p o s s e s s i o n each p a r t y trial the had the w i f e the his wife husband or bonuses (resulting, he asserted and the expenses trial 4 of court $4,327.56). to find the that said, $3,460.63, w h i c h income d i d not monthly moved The In in allow March husband in 2100681 contempt f o r v i o l a t i n g t h a t p o r t i o n of the pendente l i t e that enjoined intimidating letter the each called commit court obtained old. husband was the 2010, the $24,000, the to her husband, In in of wife the from After the the three over was two 50 2009, which on the and i n which moved existing that had on which husband and she accused The had the a the that trial cash value of husband had the i n November old following he floor. days that motion suggested wife or The trial motions. years testified mattress escape and tried August during the on husband The "dumped" h e r sister by t r a s h whore" May threatening, attached "white ruling the residence to wife life-insurance policies case time, afraid harassing, f r o m T e n n e s s e e F a r m e r ' s I n s u r a n c e Company. The lifted from The i n escrow deferred years a suicide. parties' that other. her to place court parties a l l e g e d l y w r i t t e n to her husband she the order she wife climbed and the the argument her was wife left had an of 45 marital the adultery, had sleeping, the was At with stated that out 2010. she and had had been bedroom window him. parties' separation, brother-in-law, who the wife lived with r e s i d e d on t h e s t r e e t w h e r e 5 her the 2100681 marital residence the marital residence been p l a c e d . period was l o c a t e d . Between t h e s i s t e r ' s house and was a l o t o n w h i c h The h u s b a n d t e s t i f i e d preceding the parties' virtually every weekend concluded, was h a v i n g a mobile that, during the six-month separation, night an a f f a i r away with the wife from of the wife's been h a v i n g an a f f a i r . night from away graphic artist parties' sister. The w i f e home s h e h a d b e e n w i t h i n Florence, granddaughter. working According t h e w i f e had sometimes d e c i d e d cousin early i n Florence hours to the wife, until cousin, for The w i f e spending 6 the she and h e r late at night, time testified i n the that the t h a t he d i d n o t l i k e t h e a n d t h a t he h a d o f t e n h i d d e n h e r k e y s home. a t o spend t h e n i g h t w i t h h e r him, the marital i n the and t h e on a s c r a p b o o k and possessive, she enjoyed he t h a t she had h e r female that leave residence denied fact not and, rather than d r i v e back t o Anderson o f t h e morning. h u s b a n d was j e a l o u s home S h e s t a t e d t h a t when s h e h a d s p e n t t h e c o u s i n had been engaged i n" s c r a p b o o k i n g " and had spent t h e man who l i v e d m o b i l e home o n t h e l o t b e t w e e n t h e m a r i t a l residence home h a d with anyone so t h a t other than she c o u l d 2100681 The evidence the historic for $105, 000, that established that b u i l d i n g i n which that purchase, they and the antique h a d made that the payment account. funds the had come from f o r t h e down p a y m e n t ; sale 1995. of stock that The w i f e the The h u s b a n d i n s i s t e d s t o r e was located a $ 2 5 , 000 down p a y m e n t building mortgage i n d e b t e d n e s s o f $74,000. down the p a r t i e s had purchased was encumbered a t $105,000 parties' joint checking t h a t he a l o n e h a d p r o v i d e d the h e s a i d t h e f u n d s h a d come from had been a gift from h i s mother i n a t the time of t r i a l . They also still agreed that t h e m a r i t a l home was w o r t h $ 1 4 7 , 5 0 0 a n d was s u b j e c t debt f r o m a $30,000 h o m e - e q u i t y acknowledged that, without the wife's the home-equity the existing policies. during cash line of credit. t h e pendency of to a The h u s b a n d the action k n o w l e d g e o r c o n s e n t , he h a d o b t a i n e d line o f c r e d i t on t h e m a r i t a l value by t e s t i f i e d that the T h e p a r t i e s a g r e e d t h a t t h e h i s t o r i c b u i l d i n g was valued on of the parties' residence both 1 and life-insurance The h u s b a n d t e s t i f i e d t h a t he h a d u s e d t h o s e to pay o f f t h e e x i s t i n g mortgage indebtedness and funds on t h e m a r i t a l The w i f e a c k n o w l e d g e d t h a t s h e h a d s i g n e d "some p a p e r s " r e l a t i n g t o t h e m a r i t a l residence, b u t , she s a i d , t h e husband h a d t o l d h e r t h a t s h e was s i g n i n g a t e r m i t e b o n d . 1 7 2100681 residence, other t o pay o f f t h e indebtedness bills, The earned The and t o purchase wife more testified income parties' joint that the wife's $14,891. The w i f e ' s however, of currently earning month, expenses. individual $25,312. from longer she had separated. return had gross the beauty wife income paid She s u b m i t t e d salon hours and for 2008 receipts of f e d e r a l income-tax return f o r that The a gross which income-tax beauty reflected receipts she had worked federal t o pay "four-wheeler." i n 2010 a f t e r t h e p a r t i e s reflected 2009, that a on h i s t r u c k , salon testified that of approximately $850 per no e v i d e n c e had month gross she was $2,380 p e r in business of her personal living expenses. The husband separation, he underreporting had obtained testified had realized h e r income the wife's since he h a d c o m p a r e d price f o r various information he the 2007. He the wife appointment offered parties' had explained the appointments services had obtained after that beauty-salon 2007; that list that, with that he book f o r the wife's by t h e s a l o n i n discovery, been e . g . , $10 (which for a man's h a i r c u t , $12 f o r a woman's h a i r c u t , $ 3 5 f o r " c o l o r , " a n d 8 2100681 $75 f o r " f o i l s " ) ; a n d t h a t he h a d a s s i g n e d a v a l u e the wife's the grand received Based appointments total of gross i n 2007 b a s e d upon i n 2007. the wife's The h u s b a n d receipts that testimony that 2009 than she had e a r n e d i n e i t h e r testified the wife on h e r a p p o i n t m e n t f o r each of would b o o k was that have $49,093. s h e h a d e a r n e d more i n 2007 o r 2008, t h e husband c o n c l u d e d t h a t t h e w i f e was c u r r e n t l y e a r n i n g m o r e t h a n he was earning and t h a t she was, t h e r e f o r e , When t h e h u s b a n d ' s book and t h e husband's counsel objected extrapolations were on not e n t i t l e d to alimony. c o u n s e l moved t o a d m i t t h e a p p o i n t m e n t notations the into ground evidence, the wife's that the husband's speculative: "We d o n ' t h a v e a p r o b l e m w i t h t h e b o o k . The b o o k speaks f o r i t s e l f , b u t [ i t ] doesn't t e l l you t h e s e r v i c e s r e n d e r e d o r w h a t was a c t u a l l y d o n e o r who even showed u p . " The trial court then posed a question to the husband: "THE COURT: L e t me a s k t h i s question of the w i t n e s s . I n o t h e r w o r d s , I'm l o o k i n g a t M a y t h e 3 r d , T h u r s d a y , a n d I'm s e e i n g a t 9:00 [ C u s t o m e r A ] i s c o m i n g i n . A t 9 : 3 0 , [ C u s t o m e r B ] i s c o m i n g i n . How do we k n o w how m u c h m o n e y [ C u s t o m e r A a n d B ] s p e n t ? ... I n o t h e r w o r d s , how d o y o u know w h a t s e r v i c e [ C u s t o m e r A ] was r e n d e r e d ? " The following then occurred: 9 2100681 "THE WITNESS: If [Customer A] was a regular c u s t o m e r , ... y o u w o u l d go b a c k u n t i l y o u w o u l d f i n d what [the w i f e ] had done f o r [Customer A i n the past], because a l o t of i t , she had regular c u s t o m e r s come e v e r y F r i d a y o r e v e r y o t h e r F r i d a y o r e v e r y Wednesday, e v e r y o t h e r Wednesday. "THE COURT: So w h a t I h e a r y o u t o b e s a y i n g i s y o u h a v e g o n e b a c k on [ C u s t o m e r A] a n d y o u h a v e f o u n d a t some p o i n t i n t i m e ... some [ d e s c r i p t i o n ] o f w h a t [the wife] did for [Customer A] and you're e x t r a p o l a t i n g t h a t t o d e t e r m i n e t h a t [ C u s t o m e r A] got t h a t exact s e r v i c e every time? "THE The that, had WITNESS: husband Right." also issue i n a d d i t i o n t o payments by also regularly received cash payments. The documentation, that per took the after between wife having the had $40 actually to the 2007 and returns, the the w i f e had he had that he 2008, the husband given reported d i d not him husband had answered "the $60 per any received the know a n y t h i n g file negative, wife's in $150 counsel that the returns amended stating and p a r t i e s ' accountant, about the 10 over wife's numbers" f o r her b u s i n e s s t h o s e numbers t o the week on t h e i r j o i n t to she supporting realization sought i n the testimony customers, without p a r t i e s ' incomes had been u n d e r r e p o r t e d in and When a s k e d b y come wife's check from her husband t e s t i f i e d , week i n c a s h p a y m e n t s . whether, with business. tax that that but 2100681 The income husband's federal income-tax returns f o r him i n the following $63,003 i n 2008; a n d $68,917 amounts: reflect gross i n 2007; The h u s b a n d i n 2009. $60,817 submitted a pay stub from h i s employer t h a t r e f l e c t e d year-to-date pay as o f October income net o f $4,622 n e t income The husband food; amount, o f $1,200 that approximately building; periodic alimony; or gross monthly was e q u i v a l e n t t o a and represented p e r month $4,327.56, historic he s a i d , o f $3,460.63, stated approximately for (which monthly income in 31, 2010, o f $46,226, gross a reduction from t h e previous h i s monthly expenses year). totaled which included the following: $697 f o r t h e m o r t g a g e payment $600 f o r p a y m e n t s t o "Wal-mart"; $93 f o r t h e h o m e - e q u i t y l i n e $900 on t h e $500 f o r of credit f o r t h e m a r i t a l r e s i d e n c e ; a n d payments on t h r e e c r e d i t c a r d s , a n d for utilities, control. husband three When satellite television, questioned about the "food" e x p l a i n e d t h a t he d i d n o t cook meals "Wal-mart" "whatever a day, seven days expense, a week. t h e husband [he] n e e d [ e d ] " at that 11 insurance, stated store. and expense, pest the a n d t h a t he a t e o u t When a s k e d a b o u t t h e that he h a d b o u g h t 2100681 Each p a r t y the antique she had the pendente s t o r e and taken lite she had that remained items wife order at the time The she trial truck of wife of the as and i n October worth of therewith; i n which the the the to refinance days, to sell the the sold several s a i d , he h a d seen pay was the husband the antique on the the store awarded $30,000 was store valued the their i n h i s own The the of and marital indebtedness awarded operated ground assets $74,000 m o r t g a g e mortgage 12 the parties' wife property. i n v e n t o r y of the antique had parties p a r t i e s had pay he inventory complaint. the The e i t h e r to thereon, but, the and $20,000 She f u r n i t u r e from to 2009 the divided ordered before that divorce follows. store that concluded bills, with stated with divorced associated or contents approximately court and ordered The from trial. of her residence building i t . inventory photographs filed incompatibility liabilities of removing h u s b a n d a c k n o w l e d g e d t h a t he a had of been e n t e r e d those disposed loading The and had o f i n v e n t o r y t o pay before other disposing compared had inventory. the photographs of the that husband accused historic businesses indebtedness name w i t h i n h u s b a n d was awarded a t $53,154, and the 45 the wife 2100681 was awarded an i n t e r e s t pay the wife inventory. the the value $20,000 was a w a r d e d o f t h e husband's containing was awarded $23,126.32; investment t h e husband f o r h e r share The w i f e husband Stanley therein; T. Rowe P r i c e a any i n d e b t e d n e s s $900 b a l a n c e thereon. was retirement account; account awarded The w i f e credit t o pay t h e c a r d , w h i c h he and a f a x machine t o p a y t h e $2,000 b a l a n c e c r e d i t c a r d t h a t he a l o n e h a d been for the past few years the minimum payments. trial court also ordered h u s b a n d t o p a y t h e w i f e $500 p e r month i n p e r i o d i c a l i m o n y to for continue the wife's t h e time Reconciliation allowed medical by and h e a l t h - i n s u r a n c e the Consolidated A c t , 29 U.S.C. §§ Standard 1161-1169. o f Review 13 Omnibus on using a n d f o r w h i c h he h a d been m a k i n g The was a n d made r e s p o n s i b l e f o r had used t o purchase a computer, a p r i n t e r , the p a r t i e s ' Discover h e r Morgan T h e h u s b a n d was o r d e r e d He was a l s o o r d e r e d half t h e h u s b a n d was a w a r d e d o n t h e p a r t i e s ' Sam's C l u b for himself. i n the representing c o n t a i n i n g $10,603. three vehicles i n h i spossession to investment separate awarded t h e v e h i c l e i n h e r p o s s e s s i o n ; the the equity $18,364, and the wife account of was o r d e r e d only the and coverage Budget 2100681 "When t h e t r i a l c o u r t f a s h i o n s a p r o p e r t y d i v i s i o n f o l l o w i n g the p r e s e n t a t i o n of ore tenus evidence, i t s j u d g m e n t as t o t h a t e v i d e n c e i s p r e s u m e d c o r r e c t on a p p e a l a n d w i l l n o t b e r e v e r s e d a b s e n t a s h o w i n g t h a t the t r i a l court exceeded i t s d i s c r e t i o n or t h a t i t s d e c i s i o n i s p l a i n l y and p a l p a b l y wrong. R o b e r t s v. R o b e r t s , 802 So. 2d 230, 235 (Ala. Civ. App. 2 0 0 1 ) ; P a r r i s h v . P a r r i s h , 617 So. 2d 1036, 1038 (Ala. C i v . A p p . 1 9 9 3 ) ; a n d H a l l v . M a z z o n e , 486 So. 2d 408, 410 (Ala. 1986). A p r o p e r t y d i v i s i o n i s required to be equitable, not equal, and a d e t e r m i n a t i o n of what i s e q u i t a b l e r e s t s w i t h i n the broad d i s c r e t i o n of the t r i a l c o u r t . P a r r i s h , 617 So. 2 d a t 1 0 3 8 . In f a s h i o n i n g a p r o p e r t y division and an award of alimony, the trial court must c o n s i d e r f a c t o r s s u c h as t h e e a r n i n g c a p a c i t i e s o f the p a r t i e s ; their future prospects; their ages, health, and station in life; the l e n g t h of the p a r t i e s ' m a r r i a g e ; and t h e s o u r c e , v a l u e , and type o f m a r i t a l p r o p e r t y . R o b i n s o n v . R o b i n s o n , 795 So. 2 d 7 2 9 , 734 ( A l a . C i v . App. 2 0 0 1 ) . '[W]e note t h a t t h e r e i s no r i g i d s t a n d a r d o r m a t h e m a t i c a l formula on w h i c h a t r i a l c o u r t m u s t b a s e i t s d e t e r m i n a t i o n of alimony and the d i v i s i o n of m a r i t a l a s s e t s . ' Y o h e y v . Y o h e y , 890 So. 2 d 1 6 0 , 164 ( A l a . C i v . App. 2004). " S t o n e v. Stone, 26 So. 3d I. The husband argues t h a t the t r i a l s u p p o r t i n g and time evidence ability 1236 of b e c a u s e , he In the established the 2009). court erred i n awarding says, t h e w i f e was e a r n i n g a g r e a t e r i n c o m e t h a n h e was trial. t o pay ( A l a . C i v . App. P e r i o d i c Alimony the w i f e p e r i o d i c alimony the 1232, that alternative, he did wife periodic 14 not he alimony. earning contends have the self- that at the financial 2100681 The the trial c o u r t was husband's free to accord assessment e x t r a p o l a t i o n s from her also authorized living to expenses improvident and of the l i t t l e o r no w e i g h t wife's income s a l o n appointment book. find that were, ill-advised The some of not i f the based unbelievable, under the on his court husband's to was monthly at least circumstances. " ' " I t was w i t h i n t h e p r o v i n c e o f t h e t r i a l c o u r t t o c o n s i d e r the c r e d i b i l i t y of the w i t n e s s e s , t o draw r e a s o n a b l e i n f e r e n c e s f r o m t h e i r t e s t i m o n y and from t h e d o c u m e n t a r y e v i d e n c e i n t r o d u c e d a t t r i a l , and t o assign such weight to various aspects of the evidence as i t reasonably may have deemed appropriate In order to reverse the t r i a l court ... , we w o u l d h a v e t o make o u r own credibility determinations and we would have t o reweigh the e v i d e n c e , n e i t h e r o f w h i c h we a r e a l l o w e d t o d o . " ' " Faellaci , v. Faellaci, [Ms. ( A l a . C i v . App. Owners' Ass'n 2011), quoting 941 So. 2d was presented v. Moon, 2012) 86 982, 990 with So. almost twice 3d 4, v. 359, indicating amount f r o m w h i c h , in business expenses. the wife Notably, 15 said, she the wife Cmtys. Land The App. trial even income of court the $4,622 $2,380 p a i d $850 p e r d i d not Corp., after income of 3d Prop. Civ. Gulf that, h i s monthly gross So. (Ala. 2005)). the w i f e ' s monthly gross an 2012] 367 Associated ( A l a . C i v . App. evidence May (quoting Vestlake in turn Miller husband's r e d u c t i o n i n pay, was 2100752, -¬ month present any 2100681 evidence of her had been personal living with divorce action. living her sister Nevertheless, began divorce, to live she e x p e n s e s on II. The i n the would the during the from which i t c o u l d reasonably wife expenses, perhaps because trial not be able was division. 75% contends He and that his cannot say party pay share that of was s h a r e was the investment husband's account; retirement the says, assets one wife requested that the living the wife 16 were s h a r e was awarded subject was 25%. is inequitable. asset awarded party The he to approximately and E a c h p a r t y was Each h u s b a n d be property t h e w i f e was division for purchases the court's real-property account. c r e d i t - c a r d debts the Liabilities that approximately v e h i c l e s i n h i s or her possession. pay after customary and a l l o c a t e d i t s associated indebtedness. one the evidence t h a t , once again trial t h a t the p r o p e r t y awarded of earning. contends t h a t the wife's We Each to D i v i s i o n of M a r i t a l Assets disproportionate court heard have determined d i v i s i o n i s i n e q u i t a b l e b e c a u s e , he a pendency m a r i t a l residence income she husband the she of the awarded the h u s b a n d was alone awarded half was was had awarded a l l the ordered made. to The inventory 2100681 of the antique store, but that s h e , as a j o i n t store, be awarded h a l f t h e v a l u e court awarded value of t h e husband had disposed the pendente trial court was lite c o n d u c t was evidence i n dividing are divorced with i t s property 315 paying worth the indicating reason to "'Even f o r the consider where the of incompatibility, the division.'" regard t o t h e breakdown court to consider i n Ex p a r t e (quoting Myrick ( A l a . C i v . App. evidence i n d i c a t i n g evidence the property. on t h e g r o u n d s So. 2 d 358, 363 ( A l a . 2000) not her a n d i t was a u t h o r i z e d of the marriage a r e f a c t o r s f o rthe t r i a l 311, the prohibiting the primary conduct of the p a r t i e s and f a u l t with 2d $53,154, of inventory order trial crediting implicitly presented of the marriage, fashioning of The of assets. t h e husband's parties half that breakdown that than thus dissipation that (less inventory), after The of the inventory. the testimony $20,000 h e r $20,000 owner o f t h e 1998)). Drummond, v. M y r i c k , The wife 714 S o . presented t h a t t h e husband had been o b s e s s i v e f o r anything that d i d not d i r e c t l y 785 about b e n e f i t him. F o r e x a m p l e , when t h e w i f e t e s t i f i e d t h a t s h e w a n t e d t h e c o u r t to award h e r t h e m a r i t a l r e s i d e n c e , 17 s h e was a s k e d w h e t h e r s h e 2100681 was capable of taking r e s i d e n c e was care situated. of the yard survivor, even f o r 25 testified during care the and, f u r t h e r , She husband [she] was t h a t she had been The wife, an time taking ovarian-cancer that she was undergoing chemotherapy, t h a t he h a d " g r i p e d a b o u t t h e c h e m o t h e r a p y "who dead he and wife the t h a t the husband would not cut the grass, was bills The w i f e s t a t e d t h a t s h e h a d a s k e d going t o b l a m e h i s p r o b l e m s on gone a n d he gone he w o u l d n ' t h a v e The replied years. and c a n c e r - s u r g e r y b i l l s . " the o f t h e 3 . 2 - a c r e l o t on w h i c h said when [ s h e ] was when dead and any more p r o b l e m s . " testified that the husband had allowed her to u s e h i s c r e d i t c a r d f o r t h e f a m i l y s h o p p i n g b u t t h a t , when s h e r e t u r n e d f r o m s h o p p i n g , he r o u t i n e l y e x a m i n e d t h e r e c e i p t s marked t h e i t e m s f o r w h i c h he demanded r e i m b u r s e m e n t f r o m t h e wife, even socks f o r the de minimis items parties' husband had been of him. of the divorce such son. violent as The diet wife i n the past soda f o r her testified and t h a t that s h e was and the afraid The e v i d e n c e was u n d i s p u t e d t h a t , d u r i n g t h e p e n d e n c y action, domestic-violence 2 and The son l a t e r the husband offense against had been arrested the p a r t i e s ' dropped the charges against 18 son. the for a 2 husband. 2100681 III. The trial provisions Contempt and court of the found the pendente lite Attorney's Fee husband in contempt order. The divorce of four judgment states: " T h i s c o u r t f i n d s t h a t the husband willfully v i o l a t e d s e v e r a l p r o v i s i o n s of the pendente lite o r d e r i s s u e b y t h i s c o u r t on O c t o b e r 2 7 , 2 0 0 9 . The husband v i o l a t e d p r o v i s i o n ( 1 ) of s a i d order by e n c l o s i n g a t y p e d and h a n d w r i t t e n letter with his February spousal support payment in which he r e p e a t e d l y r e f e r r e d t o t h e w i f e as a ' w h o r e ' a n d e n c o u r a g e d her to commit s u i c i d e . Said letter was c l e a r l y intended f o r the purpose [of] harassing, threatening, and i n t i m i d a t i n g her. The husband v i o l a t e d p r o v i s i o n ( 3 ) of s a i d o r d e r by selling, a s s i g n i n g , t r a n s f e r r i n g and r e m o v i n g i t e m s f r o m t h e antique store. This c o u r t f u r t h e r f i n d s t h a t the h u s b a n d v i o l a t [ e d ] p r o v i s i o n ( 5 ) o f s a i d O r d e r by r e f u s i n g to pay the u t i l i t y b i l l f o r the property l o c a t e d a t 7700 H i g h w a y 207 i n Anderson, Alabama, w h i c h was p a r t o f t h e f a m i l y i n d e b t e d n e s s t h a t he p r e v i o u s l y p a i d . F i n a l l y , t h i s Court f i n d s t h a t the h u s b a n d i s i n v i o l a t i o n o f p r o v i s i o n ( 4 ) by his f a i l u r e t o p a y t h e w i f e t h e sum o f $ 5 0 0 . 0 0 p e r m o n t h in temporary spousal support for the month of December 2010. Therefore, i t i s Ordered that w i t h i n f o r t y - f i v e ( 4 5 ) days a f t e r the e n t r y of the final d e c r e e of d i v o r c e , the husband s h a l l pay to the w i f e t h e sum of $10,000.00 f o r payment of the s e r v i c e s r e n d e r e d by h e r a t t o r n e y i n t h i s case." The husband c h a l l e n g e s the violation that the he of failed month of the f i n d i n g of contempt w i t h r e s p e c t provision (4) to pay December the wife 2010. of the pendente temporary He 19 argues spousal that the lite order: support trial to for court 2100681 h e a r d no e v i d e n c e i n d i c a t i n g December 2010 support t h a t the husband had not p a i d h i s obligation. The husband i s correct. "The determination of whether a p a r t y i s i n contempt of c o u r t r e s t s e n t i r e l y w i t h i n the sound discretion of the t r i a l c o u r t , and, ' " a b s e n t an abuse of t h a t d i s c r e t i o n or u n l e s s the judgment of t h e t r i a l c o u r t i s u n s u p p o r t e d by t h e e v i d e n c e so as t o be p l a i n l y a n d p a l p a b l y w r o n g , t h i s c o u r t will affirm."' G o r d o n v . G o r d o n , 804 S o . 2 d 2 4 1 , 243 (Ala. C i v . App. 2001) ( q u o t i n g S t a c k v. S t a c k , 646 S o . 2 d 5 1 , 56 ( A l a . C i v . A p p . 1994))." Miller This v. M i l l e r , case was 47 tried November 23, 2010. husband was Between that January 6, the evidence two on and 2011, Therefore, 3d 2 6 2 , contempt of of r e c o r d dates, on N o v e m b e r 16 t h a t t h e entry trial of court lite the heard payment court's (4) is plainly November alimony divorce no of judgment spousal i s not that 16 and payments. further determination provision and 2009). testified husband's trial ( A l a . C i v . App. a l l pendente the the 264 separate The w i f e date the in on "current" regarding was So. on evidence support. the supported husband by the e x c e p t one. The and p a l p a b l y wrong. Conclusion The finding judgment that i s affirmed i n a l l respects the husband the pendente l i t e order was i n contempt i s reversed, 20 of p r o v i s i o n (4) o f and t h e c a u s e i s remanded 2100681 with instructions determine the to vacate that finding w h e t h e r t o amend t h e a w a r d of contempt and t o o f an a t t o r n e y ' s feeto wife. AFFIRMED I N PART; REVERSED I N PART; AND REMANDED WITH INSTRUCTIONS. Thompson, P . J . , and Bryan, concur. 21 Thomas, and Moore, J J . ,
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