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Damrich v. Damrich

Alabama Court of Civil Appeals

November 21, 2014

Lauren L. Damrich
David Brown Damrich

Page 873

Appeal from Jefferson Circuit Court. (DR-12-900765).

For Appellant: Terry M. Cromer, G. John Durward, Jr., DurCromer, Birmingham.

For Appellee: Charles H. Dunn, G. R. Fernambucq of Boyd, Fernambucq, Dunn & Fann, P.C., Birmingham.

Pittman, Thomas, Moore, and Donaldson, JJ., concur. Thompson, P.J., concurs in part and dissents in part, with writing.


Page 874


David Brown Damrich (" the husband" ) and Lauren L. Damrich (" the wife" ) were married on October 18, 2002. There are no children of the marriage, although the parties have children from previous marriages. On June 28, 2012, the husband filed a complaint in the Jefferson Circuit Court seeking a divorce from the wife and a division of the assets and debts of the marriage. The wife filed a counterclaim seeking a divorce from the husband, a division of the assets of the marriage, an order requiring the husband to assume the debts of the marriage, an award of alimony, and an award of attorney fees.

After a hearing, the circuit court entered a pendente lite order on February 25, 2012, which, among other things, required the parties to sell the marital residence and required the husband to pay the wife $2,000 per month in pendente lite support.

A trial was held on August 16, 2013, and the circuit court entered a final judgment divorcing the parties on October 29, 2013. At that time the marital residence had been sold, but, as noted by the circuit court, there was a " substantial deficit" between the proceeds of the sale and the cost to pay off the remaining mortgage on the marital residence and the other expenses associated with vacating the martial residence. The circuit court included in its findings that " the [wife's] actions contributed considerably to the substantial deficit." Among other things not pertinent to the issues on appeal, the circuit court awarded the wife rehabilitative alimony in the monthly amount of $2,000 for 24 consecutive

Page 875

months and reserved the issue of periodic alimony. It awarded each party one vehicle and allowed the parties possession of the items of personal property that they had agreed upon on lists that the parties had provided. The ownership of each disputed or unspecified item of personal property was specifically addressed in the divorce judgment. The parties were required to pay their own attorney fees.

On November 12, 2013, the wife filed a motion to alter, amend, or vacate the judgment in which she argued that the circuit court had misinterpreted the evidence presented and that its property division and its alimony award were inequitable. On November 18, 2013, the husband filed a motion to alter, amend, or vacate the judgment in which he requested, among other things, an elimination or alteration of the alimony obligation. A hearing on the parties' postjudgment motions was held on January 15, 2014, and, on January 24, 2014, the circuit court entered a judgment slightly altering the property division regarding certain household furnishings and increasing the amount of rehabilitative alimony awarded to $2,500 per month retroactive to November 1, 2013. The wife filed a timely notice of appeal on March 3, 2014. We construe her arguments as arguments seeking this court's review of whether the circuit court erred by failing to order the husband to pay alimony in gross, by failing to award periodic alimony in an amount sufficient to allow her to enjoy the same standard of living that she had enjoyed during the marriage, and by failing to order the husband to pay her attorney fees.

" We begin by noting the appropriate standard of review in divorce proceedings. 'Trial judges enjoy broad discretion in divorce cases, and their decisions are to be overturned on appeal only when they are " unsupported by the evidence or [are] otherwise palpably wrong." ' Ex parte Bland, 796 So.2d 340, 344 (Ala. 2000) (quoting Ex parte Jackson, 567 So.2d 867, 868 (Ala. 1990)). Also, when, as in this case, a trial court's judgment is based on ore tenus evidence, the judgment is presumed correct. Kennedy v. Kennedy, 743 So.2d 487 (Ala.Civ.App. 1999). The presumption of correctness under the ore tenus rule 'is based on the trial court's unique position to observe the witnesses and to assess their demeanor and credibility.' Glazner v. Glazner, 807 So.2d 555, 559 (Ala.Civ.App. 2001); Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986).
" Matters such as alimony and property division are within the sound discretion of the trial court. Ex parte Drummond, 785 So.2d 358 (Ala. 2000); Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App. 1993); and Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App. 1987). The issues of property division and alimony are interrelated, and they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App. 1996).
" In dividing property and awarding alimony, the trial court should consider 'the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; [the parties'] station in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the cause of the divorce.' Russell v. Russell, 777 So.2d 731, 733 (Ala.Civ.App. 2000). Also, the trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App. 1996); Brewer v. Brewer, 695 So.2d 1 (Ala.Civ.App. 1996). 'A property division that favors

Page 876

one party over another does not necessarily indicate an abuse of discretion.' Fell v. Fell, 869 So.2d 486, 496 (Ala.Civ.App. 2003) (citing Dobbs v. Dobbs, 534 So.2d 621 (Ala.Civ.App. 1988))."

Williams v. Williams, 905 So.2d 820, 826-27 (Ala.Civ.App. 2004).

At the time of the trial, the husband was 50 years old and the wife was 49 years old. The husband testified that he was a medical doctor practicing obstetrics and gynecology in Birmingham before and after the parties' marriage, and the wife described herself as a housewife. The parties' joint federal income-tax documents for 2009 through 2012 were admitted into evidence. The husband reported an annual income of $511,878 in 2009, $461,047 in 2010, $465,417 in 2011, and $481,563 in 2012; no income was reported for the wife. The husband projected that his income in 2013 would be less per week than his income in 2012 because he was working one-half day less than he had in 2012 and because he had sold his interest in St. Vincent's Outpatient Surgery Services to pay attorney fees and other bills. He said that his current gross income was $33,400 per month and that his current net income was $19,520 per month after he subtracted retirement and income-tax deductions. He offered a list of estimated monthly expenses into evidence indicating an average monthly budget of $26,370.[1]

The wife said that she had a bachelor's degree in public relations and a minor in psychology and that, during the pendency of the divorce proceedings, she had " taken classes to do some substitute teaching." She testified that she had no income. She offered into evidence a list of her estimated monthly expenses, which totaled $8,961 per month for rent, utilities, food, transportation, clothing, entertainment, medicine, and pet care. The total did not include monthly payments of approximately $5,000 on nine debts the wife asserted that she owed.

The husband said that the wife had been an actress, a physical trainer, and a screenwriter. He testified that during the marriage he had not shared in the wife's income, had not known whether she had any income, and had not reported any income of the wife on their joint tax-return documents. According to the husband he had provided $100,000 for the wife to " live on the beach in Santa Monica" for three to six months per year during the last five years of the marriage so that the wife and her daughter could pursue careers in acting and screenwriting. The wife denied that she had lived in a beach house, but she admitted that the husband had provided the funds that she and her children had used to live in California and New York for extended periods, to pursue their careers, during the last four or five years of the marriage.

The parties testified that they had each had owned real property before the marriage. The husband said that they had both used the proceeds from the sales of those properties to purchase the marital residence, which was valued at $450,000 before it was renovated. He said that he had contributed approximately $90,000 from the sale of a property he had owned before the marriage and that the parties had acquired a $360,000 mortgage on the marital residence. Due to a series of events during the renovation of the martial residence into a ...

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