Wilhoite v. Wilhoite

897 So. 2d 303, 2004 WL 1079998
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 24, 2004
Docket2020682
StatusPublished
Cited by5 cases

This text of 897 So. 2d 303 (Wilhoite v. Wilhoite) 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
Wilhoite v. Wilhoite, 897 So. 2d 303, 2004 WL 1079998 (Ala. Ct. App. 2004).

Opinion

897 So.2d 303 (2004)

Betty H. WILHOITE
v.
H.D. Jimmy WILHOITE.
H.D. Jimmy Wilhoite
v.
Betty H. Wilhoite.

2020682.

Court of Civil Appeals of Alabama.

May 14, 2004.
Opinion Dismissing Appeals on Return to Remand September 24, 2004.

*304 David W. Langston of Harris, Caddell & Shanks, P.C., Decatur, for appellant/cross-appellee Betty H. Wilhoite.

*305 Sherryl Snodgrass Caffey, Normal, for appellee/cross-appellant H.D. Jimmy Wilhoite.

MURDOCK, Judge.

Betty H. Wilhoite, the wife, appeals from a divorce judgment entered by the Lawrence Circuit Court. H.D. Jimmy Wilhoite, the husband, cross-appeals. Because we remand this cause to the trial court for clarification of its judgment, we set out only those facts necessary to our order.

The parties married in 1961. They separated in March 2001. In April 2001, the wife filed a petition for protection from abuse in the Lawrence Circuit Court (case no. DR-01-76), alleging that the husband had caused her bodily injury and that he had threatened to cause her bodily injury. After holding an initial hearing on the wife's petition, the trial court entered an order setting her petition for trial.

In June 2001, the husband filed a complaint for a divorce (case no. DR-01-76.01) on the ground of incompatibility of temperament and on the ground that the wife had allegedly abandoned him. The husband requested that the trial court award him all of the marital property. The wife filed an answer and she filed a counterclaim for a divorce alleging that the husband had "constructively evicted" her from the marital residence, that he had abandoned her by "making cohabitation unbearable," and that he had physically and mentally abused her. She requested, in part, that the trial court award her temporary and permanent alimony and that it award her all of the marital property.

After a multiday ore tenus hearing, the trial court, in January 2003, entered a judgment stating that the wife "ha[d] proven the allegations of abuse" as described in her petition for protection from abuse and enjoining the husband "from threatening to commit or committing acts of abuse ... against [the wife]." The judgment also granted the parties a divorce on the ground of incompatibility of temperament. The trial court noted that the parties had no marital debts and that the parties were "bitterly in dispute" as to the value and division of their marital property. The trial court awarded the husband 79 acres of real property that contained the marital residence (which was in need of repair), a rental home, three rental manufactured homes, a barn, and some storage buildings; the trial court determined that the property and improvements had a value of $175,000.[1] The trial court also awarded the husband 65% of all cash, certificates of deposit, stocks, bonds, savings accounts, or checking accounts in the name of either party. Further, the trial court awarded the husband a 1998 Ford Ranger truck; one-half of the net sales proceeds from the sale of 14 other automobiles that the husband owned; one-half of the net sales proceeds from the sale of the parties' musical instruments and equipment; and miscellaneous items of personal property.

The trial court awarded the wife several parcels of real property that had a total value of $16,800; $60,000 as alimony in gross (secured by a lien on the 79 acres awarded to the husband); a 1989 Chevrolet Caprice automobile; a 1992 Ford Ranger truck; one-half of the net sales proceeds from the sale of the 14 other automobiles that the husband owned; one-half of the net sales proceeds from the sale of the parties' musical instruments and equipment; and miscellaneous items of personal property. The trial court also awarded the *306 wife 35% of all cash, certificates of deposit, stocks, bonds, savings accounts, or checking accounts in the name of either party. The trial court reserved the issue of periodic alimony.[2]

In regard to the trial court's division of the parties' monetary assets, the trial court stated:

"Also in dispute is the question of any cash which cash which would have been saved during the marriage and kept in an old safe. [The wife] contends that at the time of separation that the parties had some $200,000.00 in cash in the old safe that they kept in the marital residence. [The husband] contends that he used most of the cash he had saved to pay for the education of his wife and that when the wife and others came into the marital residence in 2001 as he was in jail and that they took a number of items out of the house and possibly the money. [The husband] contends that he expended over $150,000.00 of the parties' money educating [the wife] for the six or seven years that she was working to obtain an undergraduate degree and law degree. [The wife] does not know how much money was expended for education and denies that it was any amount close to $150,000.00.
"....
"The Court notes that, even following discovery, for whatever reason, it is left to the Court's judgment as to whether or not the parties had in their possession some $200,000.00 in cash located in their safe at the time of their separation. In this instance, it is important for the Court to make findings as to the totality of evidence presented as to the question of monies that the parties may have saved over the years, looking to objective proof and any reasonable inferences from the proof presented. [The wife's] Exhibit No. 31 evidences... that the parties apparently had accumulated cash of over $98,000 in 1982. [The wife] testified that the parties, including [the husband, the wife,] and their children, over the years worked raising and selling *307 livestock. Apparently, [the husband] would also buy and sell and swap certain motor vehicles or other items and that as a result of this, [the husband] would save approximately $1,000.00 per month and did so over a 25 year period. Considering ... the numerous items of personal property acquired by the parties, it would be feasible that the parties had access to significant savings so as to make these various acquisitions over the years. [The parties' son] ... testified that on February 4, 2001, he saw approximately $180,000.00 in the safe at home. [The wife] testified that her husband would brag about how much money he had saved and that he had kept two stacks of bills located in the safe. [The wife] denied that she had at any time taken any of the money that [the husband] kept in the parties' safe.
"....
"The parties are in dispute as to what amount of cash acquired during the marriage may exist in the parties' safe or elsewhere and the Court is uncertain as to what amount of money the parties may presently have.
"It is further ORDERED that all monies in CD's, stocks, bonds or situated in savings or checking accounts in the name of either party shall be divided between the parties as follows:
"[The husband] 65%
"[The wife] 35%
"The parties shall, within 10 days of the date of this order and subject to punishment of this Court for noncompliance, indicate to counsel the amount of monies in their name or under their control or within their possession, excluding separate funds acquired by a party since separation and not being a part of marital property, so that the division of monies or its equivalent ordered in this decree may be accomplished."

(Emphasis omitted.)[3]

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Cite This Page — Counsel Stack

Bluebook (online)
897 So. 2d 303, 2004 WL 1079998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilhoite-v-wilhoite-alacivapp-2004.