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Henderson v. Henderson

Alabama Court of Civil Appeals

January 6, 2017

Wendi A. Henderson
v.
Kerry Henderson

         Appeal from Cullman Circuit Court (DR-13-900216)

          MOORE, JUDGE.

         Wendi A. Henderson ("the wife") appeals from a judgment of the Cullman Circuit Court ("the trial court") divorcing her from Kerry Henderson ("the husband"). We affirm the trial court's judgment in part and reverse it in part.

         Procedural History

         On June 7, 2013, the husband filed a complaint for a divorce from the wife, seeking, among other things, an equitable division of the parties' real and personal property, an award of joint legal and physical custody of the parties' two minor children, and attorney's fees. The wife filed an answer and a counterclaim seeking a divorce; the wife sought sole physical custody of the parties' minor children, an award of periodic alimony, and attorney's fees. The wife also filed a verified motion for temporary, pendente lite relief, seeking, among other things, exclusive possession of the marital home, sole physical custody of the parties' minor children, child support, and periodic alimony. The wife also requested that any visitation between the husband and the minor children be supervised. On August 16, 2013, the trial court entered a pendente lite order that, among other things, awarded physical custody of the minor children to the wife, ordered the husband to pay child support to the wife in the amount of $1, 048 per month, and ordered the husband to continue paying certain monthly bills as pendente lite periodic alimony. On November 8, 2013, the husband filed a motion seeking a pendente lite order reducing the amount of child support he had been ordered to pay in the trial court's August 16, 2013, order because one of the parties' children had reached the age of majority. On December 23, 2013, the trial court entered an order confirming that the parties' child had reached the age of majority, leaving only one minor child of the marriage, and reducing the amount of the husband's pendente lite child-support obligation to $700 per month. The trial court entered an order on August 21, 2015, indicating that the case had been called for trial on August 20, 2015, that direct testimony of the husband had been completed, and that, at the parties' request, the trial had been recessed by agreement.

         On December 14, 2015, the trial court entered an order indicating that the case had been recalled for trial on that date and that ore tenus testimony had been presented and concluded. The trial court granted the husband's claim for a divorce based on the ground of incompatibility of temperament and reserved all remaining issues for a judgment to be entered after each party submitted his or her list of specific requests for relief within two weeks of the date of the order. The parties submitted their requested lists as ordered, and, on January 14, 2016, the trial court entered a final judgment of divorce. In its judgment, the trial court awarded the parties joint legal custody of the parties' minor child, with the wife having sole physical custody[1] and the husband having visitation "as the parties agree, with [the husband] having the right to alternate weekend visits in the event no agreement can be made." Additionally, the trial court ordered the husband to pay child support to the wife in the amount of $755 per month; required the husband to provide medical-insurance coverage through his employment for the parties' minor child; required the parties to divide evenly any additional medical expenses incurred on behalf of the minor child that are not covered by insurance; entitled the husband to claim the minor child as a dependent for income-tax purposes; ordered the husband to pay the wife periodic alimony in the amount of $650 per month until the wife remarries or a period of 60 months has elapsed, whichever first occurs; awarded sole title in the marital home to the wife and required the husband to pay the outstanding mortgage balance thereon; required the parties to equally divide any remaining balance in their joint savings account and any income-tax refund for tax year 2014; allowed each party to retain in his or her possession any personalty held at the time of the entry of the judgment, except that the husband "shall be entitled to retrieve any personal jewelry, clothing, ancestral pictures or items which he chooses from the marital residence within 30 days" of the entry of the judgment; and required each party to pay his or her own attorney's fees. The wife filed a motion to alter, amend, or vacate the trial court's judgment on February 9, 2016. The trial court entered an order denying the wife's postjudgment motion on February 11, 2016. The wife timely filed her notice of appeal to this court.

         Facts

         The parties were married on July 15, 1990, and lived together as husband and wife until they separated on April 10, 2013. The parties had four children during the marriage, but, at the time of the trial, only one of the children ("the child") had not yet reached the age of majority. The husband testified that he lives in Pulaski, Tennessee, where he teaches math and coaches football, earning approximately $4, 299.29 per month. According to the husband, he has a bachelor's degree and a master's degree and he began teaching in Alabama after he graduated from college in 1987. The husband stated that he began contributing to a retirement account in Alabama before he and the wife married and that, at the time of the trial, he had retired from teaching in Alabama in 2012 and was earning $2, 838.79 a month in retirement benefits. The husband testified that the wife had graduated from high school and had completed a few college courses but that she had not graduated from college. Although the wife testified that she and the husband had planned to move to Tennessee following the husband's retirement, she stated that, when the husband moved to Tennessee in the summer of 2012, she had refused to move with him.

         The husband testified that he had wanted the parties' children to attend public school but that the wife had insisted that the children be homeschooled and had refused to get a job because she was homeschooling the children. He stated that he felt that he had been denied certain educational jobs as a result of his children not being enrolled in public school and that that had caused a number of problems in the parties' marriage. According to the husband, he and the wife had not had marital relations since 2004. He stated that he had received a telephone call regarding the wife's involvement with another man in 2004, that he had discussed that conversation with the wife, and that he had assumed that her response indicated that she was claiming that nothing was going on between her and the other man. The husband stated that he had received another telephone call in 2011 that had led him to ask the wife whether she had been having an extramarital affair with a different man, which she had denied. He testified that, despite the wife's denial, he had formed a judgment that the wife had been having some type of relationship with that man, although the wife testified that that had not been the case. The husband testified that the wife had gone on a number of trips without him, including to the west coast, Florida, Japan, Hawaii, New York, the Smoky Mountains, and on a cruise.

         According to the husband, the wife was working part time at the time of the trial. He stated that he had not known that the wife was earning any money until he had completed the parties' 2012 income-tax returns, that the wife had hidden from him the fact that she was working and earning money, and that he had not known that she had additional bank accounts where she was keeping her earnings. The husband testified that, while he was in Tennessee, he had continued to pay for the wife to live in the marital home. He stated that his Alabama retirement checks had been directly deposited into the parties' joint checking account and that the wife had removed over $2, 300 from that account. He stated that that had led him to begin paying the bills himself and that the wife had objected. According to the husband, the parties' had received approximately $661 for their 2012 income-tax refund and he had never seen any of that money. The husband testified that he had purchased a new truck in April 2015 after his other vehicle had fallen into such disrepair that replacing it was more economical than fixing it. He stated that he had continued to pay certain bills for the wife and some of the parties' children, including cellular-telephone bills, medical-insurance and automobile-insurance premiums, and vehicle-tag renewal/registration fees. He stated that he had also paid taxes on the purchase of a new vehicle for the child and had paid the child's medical bills, which averaged approximately $400 per month.

         The wife testified that she and the husband had agreed before they were married that she would be a stay-at-home mother and that she would homeschool the parties' children. She testified that, at the time of the trial, she was working for a medical-imaging center and was earning approximately $600 per month working 20 hours per week. The wife stated, however, that she has health problems that prevent her from working full time. She testified that she had been diagnosed with melanoma cancer on her leg when she was pregnant with her first son in 1991 and that the melanoma had been surgically removed, which had caused vein problems in her leg that affect her ability to stand on her feet because her leg swells and begins to hurt. The wife testified also that her spine is not in alignment in her lower back, that her back problems had begun when she was pregnant with the parties' third child, who was born in 1994, and that she continued to be under care for that condition. She admitted, however, that she had never gone to see a neurosurgeon or an orthopaedic surgeon for that condition and that, on one of her visits with a doctor, the doctor had written down that the wife had reported a pain level of 2 out of 10.

         According to the wife, she had discovered the husband looking at pornography in 2000. She testified that there had been icons of naked women on the computer, which had been purchased for the use of the entire family. The wife stated that she had also viewed e-mails from women to the husband on that computer. According to the wife, after she had confronted the husband, he had brought home a laptop computer that he had said was a work computer, but, she said, she had accessed the laptop and had discovered pornography, receipts for a male-enhancement supplement, and women's e-mail addresses, telephone numbers, and street addresses, which, she testified, indicated to her that the husband was going to meet them. The husband denied ever having met a woman he had corresponded with online. The wife testified that she had been too scared to confront the husband because he has a temper and because he had been very angry when she had initially confronted him about the pornography. She stated also that, approximately five to eight times a year, the husband had gone missing for days and would not call her. The wife testified that she and the husband had not had sexual relations since July 2004. She stated that, in July 2004, the parties had gone to Huntsville for their anniversary month and had stayed in a hotel, that she had told the husband that that was not a good time for the trip and that she could not have sexual relations with him during that time for female reasons, but that he had forced sexual contact with her twice during the trip despite her crying, telling him that he was hurting her, and asking him to stop.

         The wife testified that the husband had informed her that he had not been hired for certain jobs because the parties' children had not been enrolled in public school, but, she said, she had not believed him. She stated that she had initially spoken with the husband in 2004 about obtaining a divorce. She stated, however, that she had not asked for a divorce after discovering the pornography or the e-mails, but, she said, the long-term effects of the pornography had led to the divorce. According to the wife, the parties' children had been aware of the husband's looking at pornography.

         With regard to the marital home, the husband testified that his parents had deeded him a parcel of property before he and the wife married and that, after he and the wife were married, he had conveyed that parcel of property to himself and the wife with the joint right of survivorship. The husband testified that they had built a house on that property and, he said, at the time of the trial, he had consolidated the mortgage on that property with other debt and owed approximately $4, 500 to the bank for that loan, on which he made $500 payments each month. The husband presented evidence indicating that the marital home had been appraised for $91, 200. He stated that the wife had continued to live in the marital home after he had moved to Tennessee and that he owned no other real estate. According to the husband, the marital home had been in good condition when he moved to Tennessee in 2012, and, he said, he did not know of any items that had needed maintenance or repairs at that time. The husband testified that he would like to sell the house and divide ...


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