Cunningham v. Cunningham

964 So. 2d 678, 2007 WL 1166357
CourtCourt of Civil Appeals of Alabama
DecidedApril 20, 2007
Docket2060248
StatusPublished
Cited by2 cases

This text of 964 So. 2d 678 (Cunningham v. Cunningham) 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
Cunningham v. Cunningham, 964 So. 2d 678, 2007 WL 1166357 (Ala. Ct. App. 2007).

Opinion

964 So.2d 678 (2007)

Deborah Diane CUNNINGHAM
v.
Randy Paul CUNNINGHAM.

No. 2060248.

Court of Civil Appeals of Alabama.

April 20, 2007.

*679 Mose Lee Sudduth, Jr., Vernon, for appellant.

Dale Lawrence of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellee.

THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. Deborah Diane Cunningham ("the wife") and Randy Paul Cunningham ("the husband") were divorced by a judgment of the trial court, and the wife appealed the judgment as to the division of property and the award of alimony. A full recitation of the facts of the first appeal is set forth in Cunningham v. Cunningham, 956 So.2d 1157 (Ala.Civ.App.2006)(hereinafter "Cunningham I). Following are the portions of that opinion that are relevant to this appeal:

"The husband testified that he operates the lawn-care and tree-service business that both he and the wife had previously operated and that, in the past, he had listed his business in the telephone directory and in other advertisements as being owned by both the husband and the wife. At the time of the trial, both parties were still listed in the telephone directory and on other advertisements as being co-owners of the business. The husband's testimony and the parties' tax returns from 2003 and 2004 established that the business had gross receipts of approximately $116,000 in 2003 and $102,000 in 2004. After expenses, depreciation, and other costs, however, the parties reported only approximately $13,000 in net income in 2003 and approximately $6,000 in net income in 2004.
"The wife testified that she has been diagnosed with Klippel-Feil Syndrome and scoliosis, that, as a result, she has been declared permanently and totally disabled, and that she receives as her only source of income a Social Security disability check in the amount of $480 per month. She submitted an exhibit to the trial court indicating that her monthly expenses were approximately $2,060, which included $500 per month for rent, $162.50 per month for utilities, $200 per month for food, $469.51 per month for payments on the indebtedness on the 2005 Chevrolet Silverado truck, $250 per month for medication, $77.50 per month for automobile insurance, $130 per month in automobile expenses, $69.40 per month for life insurance, $100 per month for toiletries and other items marked `essentials,' and $100 per month for telephone service.
". . . .
"Both parties also gave testimony and submitted documents outlining the value of the property that they own. The *680 parties testified that, with the exception of a few personal items whose total value was estimated by the parties to be less than $500, most of their property had been acquired after the marriage. The husband valued the parties' house and the real property surrounding the house at $45,000, and the wife valued the house and property at $55,000. The wife valued the business property at $151,200, and the husband valued it at $127,600. The parties did not testify as to the present value of the 2005 Chevrolet Silverado truck, but the wife testified that $23,000 remained due on the truck at the time of the trial. The wife estimated a value of $15,250 for the parties' household property, and the husband valued the same property at $6,520.
". . . .
". . . [T]he wife's primary contention on appeal is that the trial court's property division is inequitable as a whole. The retirement account is only one of the assets to consider in reviewing the overall property division. This court has stated:
"`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. The property division need not be equal, but it must be equitable. 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).'
"Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000)(some citations omitted).
"As we have previously mentioned, the parties were married for 22 years. The husband was 45 years old at the time of the trial, and the record indicates that he is in good health. The wife, however, though of comparable age, is permanently disabled due to several severe medical conditions. As to the parties' future prospects, the husband has the ability to work and to earn an income through his business or some other source, but the wife cannot work due to her disability. The wife's only source of income is her disability check in the amount of $480 per month.
"The wife testified that her estimated monthly expenses were in excess of $2,000. The trial court appears to have viewed the wife's expenses as being excessive because the expenses included a $469 truck payment and what the court viewed as an unreasonable $100-permonth telephone bill. However, even if the wife pares down her expenses significantly, those expenses will still greatly outweigh her income, indicating that she will not be able to even remotely maintain the standard of living she enjoyed during the marriage. The husband, however, retains the right to all the income from the business, which the trial court awarded entirely to him.
"In Kaufman v. Kaufman, 934 So.2d 1073, 1081 (Ala.Civ.App.2005), we reversed a divorce judgment after concluding that the judgment `disproportionately favor[ed] the husband.' In that case, the parties had been married for 33 years, were nearing retirement age, and had a limited ability to earn a living in the future. 934 So.2d at 1076-77. The *681 wife was receiving approximately $400 per month in Social Security income and had no way to earn additional income. In making its property division, the trial court in Kaufman awarded the husband approximately 77% of the marital estate and awarded the wife approximately 23% of the marital estate, along with $500 per month in alimony. In reversing that judgment, this court noted that the property division was especially inequitable in light of the length of the parties' marriage. 934 So.2d at 1081. See also Adams v. Adams, 778 So.2d [825,] 827 [(Ala.Civ.App.2000)] (reversing a trial court's judgment containing a division of property that awarded only 16% of the parties' assets to the wife because the division was `so disproportionate as to be inequitable').
"Factoring in the value of the property awarded to the husband and the value of the business equipment and the husband's retirement account and subtracting the $53,000 of business debt, the trial court awarded the husband property with a total value of $104,600 as estimated by the husband and $128,200 as estimated by the wife. As for the wife, the total value of the property she received is $6,520 as estimated by the husband and $15,250 as estimated by the wife.

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Related

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27 So. 3d 526 (Court of Civil Appeals of Alabama, 2009)

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Bluebook (online)
964 So. 2d 678, 2007 WL 1166357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-cunningham-alacivapp-2007.