Appeal from Lauderdale Circuit Court (DR-12-900132)
Michael Sheldon Poole ("the husband") appeals from a judgment of divorce entered by the Lauderdale Circuit Court ("the trial court") that, among other things, awarded Melanie Holley Poole ("the wife") a portion of the husband's retirement accounts, granted the wife periodic alimony, awarded the wife alimony in gross, restrained the husband from having contact with the wife, and found the husband in criminal contempt of court. We affirm the portions of the judgment finding the husband to be in contempt and restraining the husband from contacting the wife. Because we find that insufficient evidence was presented regarding certain retirement assets to support the property division, we reverse the trial court's judgment insofar as it distributed the marital estate, including the awards to the wife of periodic alimony and alimony in gross, and we remand the cause to the trial court for further proceedings consistent with this opinion.
Facts and Procedural History
The parties were married in August 1986. The parties had two children who had reached the age of majority before the divorce action was filed. According to the testimony, the marriage began to fail in 2012 when the husband engaged in a pattern of erratic and harassing behavior directed toward the wife. The wife testified that the husband had accused her of having affairs, that he had taken and hidden her automobile, that he had locked her out of the house at night, that he had placed his hands around her neck while threatening to break her neck, and that he had turned off the power to the marital residence at the main breaker, which was located behind a locked door to which only the husband had a key. She testified that, as a result of the husband's harassment, she left the marital residence to live with her parents. She testified that, after she left the marital residence, the husband placed locks on certain doors within the residence.
On November 15, 2012, the wife filed a petition for protection from abuse in the trial court, which was docketed as case no. DR-12-601, after an encounter with the husband in the parking lot at her place of employment. The wife testified that the husband had approached her, had presented her with papers for an uncontested divorce, and had threatened to make her wish she was dead if she did not sign the papers. The trial court granted an ex parte protection order on November 16, 2012, and set the matter for a hearing. Following the hearing, the trial court entered a protection order enjoining the husband from threatening to commit or from committing acts of abuse against the wife and restraining the husband from contacting the wife. The trial court directed that the judgment would remain in effect until December 10, 2013. The husband appealed that judgment to this court. By an unpublished order, we dismissed that appeal for lack of prosecution. Poole v. Poole, (No. 2120257, Feb. 6, 2013) ___ So.3d __ (Ala. Civ. App. 2013)(table). The documents from the appeal in the protection-from-abuse case have been incorporated into the record in the present appeal.
The wife filed a complaint for a divorce on November 20, 2012, citing incompatibility as the ground. In the complaint, however, the wife asserted, among other things, that the husband had been physically and emotionally abusive toward her during the marriage. She specifically referenced the filing of the protection-from-abuse petition in her complaint and incorporated by reference in her complaint the allegations made in that petition. In her prayer for relief, she requested an equitable division of the marital property, an award of periodic alimony, and the following:
"2. The Wife respectfully moves this Honorable Court to merge and/or combine this cause of action with the pending petition for protection from abuse that she has filed and is currently pending in this matter in Case No. DR-12-601, Circuit Court of Lauderdale County, Alabama;
"3. That this Honorable Court will enter a permanent injunction prohibiting the Husband from coming about the Wife at anytime or place following disposition of the protection order that may be entered in this matter ...."
The trial court entered a pendente lite order on December 16, 2012, that included, among other things, a provision regarding preservation of assets, stating that "[b]oth parties are ORDERED not to transfer or dispose of any assets other than for usual, normal and ordinary living expenses." That order also required the parties to continue paying fixed monthly expenses existing at the time of their separation and requiring the party who was responsible for paying the monthly mortgage payment during the marriage to continue paying that expense during the pendency of the litigation.
The trial court conducted a trial on September 24, 2013. The husband represented himself. The wife testified that, in January 2013, the husband had deeded back the marital residence to the holder of the mortgage without her consent. On January 22, 2013, the husband had sent a letter to the wife's attorney, stating:
"The owner of the house contacted me today and wants to foreclose and take possession back. January, 2013 payment is past due. I told him I would fax you this information as one last attempt so you may relay the information to [the wife] and she may make the decision if she wants to pay January payment and help with future payments.
"The owner will call me back today 1/22/13 at 5:30 pm expecting an answer if payment will be paid.
"I told him if I do not hear from you I would only have to assume there is no interest in preventing foreclosure and he advised me he will be delivering papers tonight to have house signed back over to him ...