Lee v. Lee

91 So. 3d 63, 2012 Ala. Civ. App. LEXIS 47, 2012 WL 593406
CourtCourt of Civil Appeals of Alabama
DecidedFebruary 24, 2012
Docket2100940
StatusPublished

This text of 91 So. 3d 63 (Lee v. Lee) 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
Lee v. Lee, 91 So. 3d 63, 2012 Ala. Civ. App. LEXIS 47, 2012 WL 593406 (Ala. Ct. App. 2012).

Opinion

BRYAN, Judge.

Allen Lee, Jr. (“the husband”), appeals from a judgment entered by the Monroe Circuit Court (“the trial court”) that divorced him from Geraldine Lee (“the wife”) insofar as it divided the parties’ property and awarded the wife permanent periodic alimony.

On January 7, 2009, the wife filed a complaint for a divorce seeking a divorce from the husband on the ground of incompatibility of temperament. She sought an equitable division of the parties’ marital property and debts, an award of alimony, and an award of attorney fees, among other things.1 The husband subsequently filed an answer to the wife’s complaint and a counterclaim for a divorce.

The trial court conducted an ore tenus hearing on May 10, 2010, and the husband and the wife were the only witnesses to testify. The parties stipulated that they had been married for 31 years; that a divorce should be granted on the ground of incompatibility of temperament; that they had agreed to the division of their personal property, except for one mobile home; and that the only issues before the trial court were the division of real property, the division of the mobile home, and the wife’s request for alimony.

At the time of the final hearing, the husband and the wife were both living in the parties’ marital residence. The parties stipulated that the marital residence was worth $68,060 and that there was a mortgage secured by the marital residence in the amount of $33,217.43. The monthly mortgage payment totaled $463.70. The record indicates that a storage building behind the marital residence had caught on fire and that the parties’ insurance company had agreed to pay the parties approximately $14,000 on their claim relating to the damage to that building. The parties also owned real property in Beatrice, and they stipulated that the value of that property was $15,690. The parties owned a mobile home that was located in Frisco City that was valued at $3,000; however, there was a lien on the mobile home in the amount of $6,000, and the [65]*65monthly payment on the mobile home was $422.

The wife stated that she had a high-school diploma, that she worked outside the home throughout the marriage, and that, in May 2009, she became a board-certified nursing assistant after attending Reid State Technical College for six months. According to the wife, in 2007 she earned $12,500, in 2008 she earned $13,000, and in 2009 she earned $16,800 (approximately $1,400 a month). The wife stated that she did not know how much the husband had earned each year that they had been married because they had filed separate income-tax returns. However, she stated that the husband had paid the majority of the household bills, including her monthly automobile payment, but that she had paid the water, gas, and electric utility bills. The wife estimated that her monthly expenses totaled $2,347, not including the monthly mortgage payment on the marital residence. At the time of the hearing, the husband was paying the monthly mortgage debt on the marital residence. The wife stated that she wanted to be awarded the marital residence and that she wanted the husband to continue paying the mortgage debt on the marital residence. The wife requested an award of permanent periodic alimony in the event that the trial court awarded her the marital residence and did not require the husband to pay the mortgage debt on the marital residence.

The record indicates that the husband owned and operated a construction company and that he had done so for approximately 13 years. According to the husband, in 2006, the husband’s business had adjusted gross income totaling $8,333.08; in 2007, the husband’s adjusted gross income was $4,226 and the adjusted gross income of his business and the parties’ store, discussed infra, was $3,402. The husband stated that he did not file an income-tax return in 2008 because he did not earn enough income to pay any taxes in 2008. The husband testified that his income in 2009 totaled $12,452.2 The husband stated that he had gotten behind on the mortgage-debt payments in 2008 and that he had struggled to pay all the parties’ financial obligations.

Regarding the husband’s construction company, the wife stated that the husband had always had a lot of work and that there had never been a time during the parties’ marriage that the husband had been without funds to pay the parties’ bills. According to the wife, she had seen the husband carrying large sums of cash, and she stated that the husband had given her cash whenever she told him that she needed something. The wife presented evidence indicating that the husband had deposited $134,800 into his checking account from March 2009 through December 2009, but there is no indication in the record of what amount of money the husband took out of his account to pay expenses related to the receipt of that income.3

The wife stated that she was willing to allow the husband to be awarded his business and his tools. The record indicated that the husband had two trucks associated with the operation of his business, but neither party presented any evidence regarding the value of the trucks or the tools related to the husband’s business. The husband stated that he had credit-card debt, and he indicated that that debt was [66]*66related to the his business expenses. However, when the wife’s attorney specifically asked the husband if his credit-card debt was related to his business expenses, the following exchange occurred:

“THE COURT: There is no claim that [the husband’s construction company] is marital property. Is that what I was reading?
“[The wife’s attorney]: No claim to [the husband]’s business.
“THE COURT: Let’s keep going.”

The wife’s attorney did not ask the husband any more questions about his business-related debt. Later during the husband’s testimony, the husband’s attorney asked the husband about his business-related debts, and the wife’s attorney objected. The trial court sustained the objection but qualified the ruling by stating: “Unless we can say that [the husband’s construction company] is marital property.” The husband’s attorney stated that the husband was the sole proprietor of the construction company, and the trial court responded:

“It is going to be one way or the other. It is either a family business or it is not. If [the construction company] is a marital asset, then I will divide those assets and the trucks and the tools and everything else, then I will consider the debts that are for that business. Right now there is no claim for that. It has to be one way or the other.”

No further evidence was presented by either party concerning the debts related to the husband’s business, and there was no evidence presented by either party concerning the value of the husband’s business.

The parties purchased a store, Mexia Supermarket, in 2006 for $50,000.4 The wife stated that she and the husband subsequently took out a $30,000 mortgage on the marital residence and that the husband had told her the money would be used to pay for expenses he had incurred through his business to get the store started. The wife stated that she ran the store and that she incurred credit-card debt related to the operation of the store. At the time of the hearing, the wife’s credit-card debt related to the operation of the store totaled $7,300.

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Cite This Page — Counsel Stack

Bluebook (online)
91 So. 3d 63, 2012 Ala. Civ. App. LEXIS 47, 2012 WL 593406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-lee-alacivapp-2012.