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12/16/94 G. KEITH VARNER v. ANN P. VARNER CAREER

December 16, 1994

G. KEITH VARNER
v.
ANN P. VARNER; CAREER SEARCH INCORPORATED ANN VARNER



Appeals from Lauderdale Circuit Court. (CV-90-378) and (DR-90-425). Donald Patterson and Francis A. Long, Sr., TRIAL JUDGES (AV92000538). Larry Mack Smith, TRIAL JUDGE (AV93000053).

Rehearing Overruled January 27, 1995, . Certiorari Denied May 5, 1995. Released for Publication October 17, 1995. As Amended.

Thigpen, Judge. Robertson, P.j., and Yates, J., concur.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

These consolidated appeals involve a divorce, the dissolution of a corporation, and the Alabama Fraudulent Transfer Act.

After approximately 17 years of marriage, Ann P. Varner filed a complaint for divorce in July 1990, against G. Keith Varner, alleging incompatibility. She alleged that the husband had excluded her from information concerning the operation and management of Varner Personnel, Inc., a corporation of which she was a 50% shareholder. Inter alia, she sought alimony, custody of the parties' minor child, child support, a property division, and an order allowing her to review the corporation's records and accounts.

The record reveals that a few days before the wife filed for divorce, the husband filed for dissolution of Varner Personnel. He alleged that the wife's mental and emotional condition had deteriorated after she was diagnosed with multiple sclerosis, and that she had interfered in the affairs of the corporation. The court granted his motion to consolidate the dissolution action and the divorce action.

The trial court's initial order granted the divorce on the grounds of incompatibility, awarded the wife custody of the minor child, child support, and alimony, prohibited the husband from selling his interest in Varner Personnel, granted the wife the right to inspect the corporation's books, and left the marital residence as joint property subject to the wife's sole possession. After considering the husband's post-judgment motion and the wife's motion for contempt, the trial court awarded custody of the parties' minor child to the husband, and found the husband in contempt for transferring his interest in the corporation, for failing to make an accounting of the corporation to the wife, and for failing to pay child support and alimony. After further proceedings, the trial court amended its order, and it awarded the complete interest in the marital residence to the wife, found an arrearage of child support and alimony, set aside the transfers which the husband made with Varner Personnel assets, awarded the wife 1% of the gross receipts of Varner Personnel, Varner Temps, Keith and Associates, and Career Search, corporations which the husband controlled or had involvement with, and awarded the wife an attorney's fee. After the trial court denied post-judgment motions, Career Search filed a motion pursuant to Rule 60(b)(4), A.R.Civ.P., which the trial court denied. The husband and Career Search appeal.

The husband argues that the trial court abused its discretion: (1) in its alimony award and property division; (2) in ordering him to pay the wife 1% of the gross income, earnings, or receipts of Varner Personnel, Varner Temps, Keith and Associates, and Career Search; (3) in determining that he fraudulently transferred assets of Varner Personnel and Varner Temps in the creation of Keith and Associates and Career Search; and (4) in finding him in contempt for willfully transferring the assets, for failing to pay child support and alimony, and for failing to provide corporate reports to the wife.

We note at the outset that when a trial court receives ore tenus evidence in a divorce proceeding, the resulting judgment is presumed correct, if it is supported by the evidence. Waid v. Waid, 540 So. 2d 764 (Ala. Civ. App. 1989). Absent an abuse of discretion, we are not permitted to substitute our judgment for that of the trial court. Beckwith v. Beckwith, 475 So. 2d 575 (Ala. Civ. App. 1985).

The husband's first argument concerns the division of property and the alimony award. Issues regarding alimony and property division rest within the sound discretion of the trial court, and the trial court's judgment on those issues will not be disturbed on appeal except for a palpable abuse of that discretion. Montgomery v. Montgomery, 519 So. 2d 525 (Ala. Civ. App. 1987). Those issues are interrelated, and in determining whether the trial court abused its discretion regarding either of those issues, the reviewing court must consider the entire judgment. Montgomery, (supra) . Furthermore, the division of property is not required to be equal, only equitable in light of the evidence, and what is equitable rests within the sound discretion of the trial court. Montgomery, (supra) ; Ross v. Ross, 447 So. 2d 812 (Ala. Civ. App. 1984). The trial court considers many factors in determining its awards, including the earning capacity of the parties, their future prospects, their ages and health, the length of the marriage, the value and the type of property they own, and the conduct of the parties regarding the cause of the divorce. Tims v. Tims, 519 So. 2d 558 (Ala. Civ. App. 1987); Sheffield v. Sheffield, 485 So. 2d 1177 (Ala. Civ. App. 1986).

The husband argues that he is unable to pay the courtordered obligations; however, our review of the record discloses no error in the trial court's determinations regarding the property division and the alimony award. The record reveals much conflicting evidence regarding the husband's financial condition, including his own testimony regarding approximately $12,500 he spent furnishing his apartment, and his other expenditures on recreational items.

The wife suffers from multiple sclerosis and has been confined to a wheelchair for 4 or 5 years. She testified that she is unable to work, and that she receives $474 monthly in social security disability benefits. She testified that she requires daily assistance and that she has employed a housekeeper for the last several years. The wife also testified regarding her investment of her separate funds into the marital residence. She testified that she was one of the founders of Varner Personnel, Inc., and that she specialized in the area of permanent placement until her illness forced her to stop working full time. Review of this voluminous record discloses no error in the trial court's determinations regarding alimony or property division.

The husband next contends that the trial court erred in awarding the wife 1% of the gross receipts of all the corporations in which he is involved. He argues, in part, that this award is not alimony in gross, a property settlement, or periodic alimony, and that it is, therefore, not allowed in a divorce action. The trial court's order specifies that this award is in the nature of a distribution of corporate assets due to the wife. It is unnecessary for this court to address the husband's issue characterizing this award as impermissible in a divorce proceeding. The husband argues that the trial court erred in ...


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