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Davis v. Davis

Alabama Court of Civil Appeals

May 5, 2017

Nancy Ann Davis
John H. Davis

         Appeal from Wilcox Circuit Court (DR-13-900016)

          THOMPSON, Presiding Judge.

         Nancy Ann Davis ("the wife") appeals from the judgment of the Wilcox Circuit Court ("the trial court") divorcing her from John H. Davis ("the husband"). In the judgment, the trial court divided the parties' marital property and stated that it "expressly resolve[d] the periodic alimony issue by the division of property" it made.

         The testimony in the record is often confusing and difficult to follow. The testimony was interrupted on numerous occasions as the attorneys for the parties quarreled and had to be admonished by the trial court. The trial transcript shows that the behavior of the attorneys, especially the husband's attorney, unnecessarily prolonged the trial to the point that the wife had very little time in which to present her case.

         That being said, the record indicates the following facts relevant to the issues on appeal. The husband and the wife were married in 1958. At the time of the marriage, the husband, a college graduate who was teaching school, was 39 years old. The wife was 14 years old and was pregnant with the husband's child. The wife did not finish school; however, she earned a General Education Diploma, often called a GED. During the course of the marriage, the record indicates, the wife had at least six children. At the time of the trial, the husband and the wife were 97 and 71 years of age, respectively. The husband was in poor health and was undergoing treatment for cancer at the time of the trial. He could not see well and might even have been blind. The husband was living with one of the parties' daughters, who had taken him in to live with her after he was released from the hospital. The daughter's house was closer to where the husband was to receive cancer treatment than was the marital residence. The wife acknowledged that she did not attend the treatment sessions with the husband, but, she said, she was not made aware of them in time to attend.

         The husband testified that he filed the divorce complaint while he was living away from the wife.[1] He added that she had wanted a divorce for 40 years or since 1980. He also said that the wife and he had slept in separate bedrooms for approximately 30 years and that she had locked him out of her room.

         The husband represented to the court that the wife had tried to shoot him but had failed to release the safety on the gun. A pastor who testified that he was present during the incident corroborated the husband's testimony. The wife denied having tried to kill the husband. She testified that he had been controlling throughout the marriage.

         The husband testified that he would not "allow" the wife to work during the first 15 to 20 years of the marriage. The wife confirmed that the husband would not allow her to work. However, she said, in 1976 she began working as a school-bus driver for a private school. In 1978, the wife was hired by the Wilcox County school system to drive a school bus, and she held that job until her retirement in May 2006. Evidence showed that, at the time of the trial, the wife received $781.30 each month from her state retirement account and $620.90 in Social Security income, for a total monthly income of $1, 402.20. From that amount, however, $104.90 was deducted for Medicare premiums, leaving the wife with a monthly income of $1, 297.30.

         The husband worked as a public-school teacher in St. Clair County for at least 40 years. He testified that he became a pastor after he retired from teaching, and he also farmed. The husband's retirement income included his teacher's pension of $921.03 each month and Social Security income of $1, 149.50 each month, for a total monthly income of $2, 070.53. From that amount, the husband also had a deduction of $104.90 for Medicare premiums, as well as expenses in the amount of $48 for an additional health-insurance premium and $9.34 for Alabama Education Association dues, leaving the husband with a monthly income of $1, 908.29.

         During the marriage, the parties purchased two parcels of property in Marengo County. According to the husband's attorney, one of those parcels is the site of an "old fallen-down" funeral home. The trial court expressed a concern that, because of the chemicals used at the site when the funeral home was operational, "it may be more of a liability than what it is worth." The other property in Marengo County is a four-acre parcel that has two "trailers" on it. The wife testified that she did not wish to be awarded either of the parcels of real property in Marengo County. Evidence indicated that the combined value of those two parcels of real property according to 2012 tax assessments was $3, 200.

         During the marriage, the parties also acquired the marital residence in Camden, located in Wilcox County. The wife testified that the house was in disrepair to the point that she could not obtain insurance on the structure. One of the parties' children also testified that the home was in poor repair and required a lot of work. There is no indebtedness on the house, but neither party provided evidence as to the value of the house.

         The property that is the primary subject of the appeal in this case is a 40-acre tract of property ("the farm") that is now timberland. The husband testified that he and his mother purchased the farm in 1940 and put it in his brother Eugene's name. The husband said that, years later, Eugene failed to pay the taxes on the farm and lost that land. It is unclear from the record exactly when Eugene lost the farm. However, the husband said that "years later"--in the 1970s--he purchased the farm "through a contract." The deed to the farm was in the husband's name only. The 2012 tax assessment for the farm appraised it at $40, 400.

         The husband testified that, initially, he grew okra and corn, among other things, and said that he raised animals on the farm until about 1954. However, he also said testified that he raised animals on the farm during the marriage. We note that the wife and the husband did not marry until 1958. The husband also said that the wife never helped him farm the land, adding that he "didn't allow her to work." Again, the testimony is confusing, because the husband also said that he did not farm the land while he was married to the wife. One of the parties' children, John Netta Ngirailab, testified that she helped raise crops on the farm and that the crops were sold and the money was given to the husband. Ngirailab said that that money "was my father's [i.e., the husband's] income."

         The husband said that, during the marriage, he "had turned [the farm] over to tree planting." At the time of the trial, the husband said, he used the farm as timberland and leased it for hunting. He said that he had cut about $50, 000 worth of timber from the farm and gave the money to his siblings. The last time he cut timber, he said, was about six or seven years before the trial, when he harvested about $6, 000 worth of timber. From that harvest, he said, he gave $2, 000 each to his two surviving siblings. None of the husband's siblings were living at the time of the trial. ...

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