Brandt v. Brandt

888 So. 2d 510, 2004 Ala. Civ. App. LEXIS 123, 2004 WL 259237
CourtCourt of Civil Appeals of Alabama
DecidedFebruary 13, 2004
Docket2021082
StatusPublished

This text of 888 So. 2d 510 (Brandt v. Brandt) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brandt v. Brandt, 888 So. 2d 510, 2004 Ala. Civ. App. LEXIS 123, 2004 WL 259237 (Ala. Ct. App. 2004).

Opinion

THOMPSON, Judge.

Mary S. Brandt (“the wife”) and Richard L. Brandt (“the husband”) were married on May 20, 1989. No children were born [512]*512of the parties’ marriage. On March 24, 2003, the wife filed a complaint seeking a divorce. The husband answered on April 29, 2003, and counterclaimed for divorce. On July 23, 2003, the trial court held a hearing and received ore tenus evidence. On August 6, 2003, the trial court entered a judgment divorcing the parties, ordering the husband to pay alimony in gross and periodic alimony, and fashioning a property division. No postjudgment motions were filed. The wife timely appealed.

Where a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000).

At the time of the hearing in this matter, the wife was 63 years old and the husband was 51 years old. The parties had been married for 14 years. At the time the parties married, the wife was employed as a personnel specialist with Cluett Peabody, where she had been employed for 12 years. The wife testified that when Cluett Peabody closed its business she went to work for Kenco Logistics and worked at Kenco for approximately nine years. At some point during her employment with Kenco, the wife became disabled. The wife informed the trial court that she suffers from chronic obstructive pulmonary disease, emphysema, acute bronchitis, and asthma. The wife testified that she receives Social Security disability benefits in the amount of $980 per month. In addition to her Social Security disability benefits, the wife also receives $110.57 each month from her Cluett Peabody pension.

The wife testified that when the parties married she had a 401(k) plan with Cluett Peabody that was valued at approximately $12,000. The wife testified that she transferred the money from her 401(k) plan into an individual retirement account (“IRA”). The wife stated that she also had a 401(k) plan with Kenco, which was worth $30,293.05, that she rolled over into her IRA in 1998. Documentary evidence admitted at trial indicates that the wife’s IRA had a balance of $12,546.88 as of May 30, 2003.

The wife testified that during the parties’ marriage she deposited all of her employment earnings into the parties’ joint bank account. According to the wife, the husband gave her $50 per week as an allowance. The wife testified that during the parties’ marriage she withdrew money from her IRA and deposited the funds into the parties’ joint bank account to pay for household needs and to pay off the parties’ debts. According to the wife, $15,000 of the money withdrawn from her IRA was used to purchase a 1998 Chevrolet Silvera-do extended-cab truck for the husband. The wife offered into evidence copies of a check register from the parties’ joint bank account indicating that on December 27, 1999, the parties paid $19,700 to James Dillard for a truck. The wife testified that she drives a 1997 El Dorado Cadillac; the wife estimated the vehicle was worth approximately $11,000.

According to the wife, the husband withdrew all of the money from the parties’ [513]*513joint bank account in December 2002. A December 2002 bank statement admitted into evidence at trial indicated that $18,879 was withdrawn from the parties’ joint bank account that month. The husband testified that the wife had not deposited any money into that account in the three years before December 2002, with the exception of the $15,000 from her IRA that was used to purchase the husband’s truck.

The wife testified that during the parties’ marriage she withdrew substantial amounts of money from her IRA. Several tax returns admitted into evidence indicate that, in addition to the $15,000 distribution used to purchase the husband’s truck, the wife received a $6,936 distribution from her IRA in 1992, a $22,603 distribution from her IRA in 2000, and a $6,000 distribution from her IRA in 2001. The wife testified that she also withdrew $8,000 from her IRA shortly before the hearing in this matter. In addition to those distributions, the wife also received a $10,698.50 lump-sum Social Security disability settlement in 2001. The wife testified that the money from the Social Security disability settlement went to purchase Christmas gifts for the family and to pay for other household needs. According to the wife, she had received more than $47,000 from IRA distributions and the Social Security disability settlement during the two years before the trial.

The wife testified that the $8,000 she withdrew from her IRA before the hearing was used to pay her attorney fees and to make payments on her credit cards. The wife’s credit-card statements admitted into evidence at trial revealed that she had an outstanding balance of $1,319.86 on her Chase Mastercard credit card and that she had an outstanding balance of $1,841.36 on her Discover credit card. The wife testified that the charges on her credit cards were all charges to “QVC.”1

Before the parties’ marriage, the husband was employed with the United States Air Force. The husband testified that he is now retired from active military duty and that he receives $1,311.44 each month in retirement benefits from the military. At the time the parties married, the husband was employed with Computer Science Corporation. In June 1989, one month after the parties married, the husband had a balance of $9,935.97 in a “Matched Asset Plan” (a retirement account) through his employment with that company. On March 30, 2003, the “Matched Asset Plan” had a balance of $38,099.07. The husband testified that before the parties’ marriage he had purchased an IRA with A.G. Edwards and Sons, Inc. According to an April 25, 2003, statement of that account admitted into evidence at trial, the account was valued at $16,045.38. The husband testified that he had not withdrawn or deposited any money into that account during the parties’ marriage. According to the husband’s personal-benefits statement admitted into evidence at trial, if the husband retired at the age of 62, he would receive $921 in monthly retirement benefits.

The husband is currently employed as a civil servant for the United States Air Force. The husband earns $3,331 per month in the civil service. The husband first began his employment as a civil servant in 1992; since that time, he has participated in a “Thrift Savings Plan,” a retirement plan. According to the husband’s “Leave and Earning Statement” admitted into evidence at trial, $321.31 is deducted from the husband’s gross income each pay period and placed in the “Thrift Savings Plan.” The husband testified that the “Thrift Savings Plan” was an account set [514]*514up for his retirement and that it was worth approximately $102,000 at the time of trial.

The husband testified that he was aware of a $15,000 withdrawal from the wife’s IRA within the three years before the trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Littleton v. Littleton
741 So. 2d 1083 (Court of Civil Appeals of Alabama, 1999)
Department of Transp. v. Weisenfeld
617 So. 2d 1071 (District Court of Appeal of Florida, 1993)
Somers v. McCoy
777 So. 2d 141 (Court of Civil Appeals of Alabama, 2000)
Wilkinson v. Wilkinson
828 So. 2d 924 (Court of Civil Appeals of Alabama, 2001)
Junkin v. Junkin
647 So. 2d 797 (Court of Civil Appeals of Alabama, 1994)
Duckett v. Duckett
669 So. 2d 195 (Court of Civil Appeals of Alabama, 1995)
Grice v. Grice
673 So. 2d 772 (Court of Civil Appeals of Alabama, 1995)
Robinson v. Robinson
795 So. 2d 729 (Court of Civil Appeals of Alabama, 2001)
Lutz v. Lutz
485 So. 2d 1174 (Court of Civil Appeals of Alabama, 1986)
Scholl v. Parsons
655 So. 2d 1060 (Court of Civil Appeals of Alabama, 1995)
Montgomery v. Montgomery
519 So. 2d 525 (Court of Civil Appeals of Alabama, 1987)
Albertson v. Albertson
678 So. 2d 118 (Court of Civil Appeals of Alabama, 1995)
G.K.M. v. E.B.M.
728 So. 2d 1102 (Court of Civil Appeals of Alabama, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
888 So. 2d 510, 2004 Ala. Civ. App. LEXIS 123, 2004 WL 259237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brandt-v-brandt-alacivapp-2004.