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Myers v. Myers

Alabama Court of Civil Appeals

March 30, 2018

Carl David Myers
v.
Kimberly Berry Myers

          Appeal from Mobile Circuit Court (DR-15-901331)

          DONALDSON, JUDGE.

         Carl David Myers ("the husband") has appealed from a judgment of the Mobile Circuit Court ("the trial court") that, among other things, divorced him from Kimberly Berry Myers ("the wife"). The husband challenges the judgment insofar as it awards alimony to the wife, divides the parties' property, orders the husband to pay the private-school tuition for the parties' minor child, and fails to award joint legal custody of the child to the parties. We reverse the judgment and remand the cause.

         Facts and Procedural History

         The parties were married in 1993 and had two children born during their marriage, L.M. ("the minor child") and W.M. ("the oldest child"). Only L.M. remained a minor at the time of the divorce proceedings.

         The husband filed a complaint for a divorce in September 2015 in which he sought, among other things, an equitable division of the parties' property and an "appropriate determination concerning custody of and visitation with the parties' minor child." The wife filed an answer and a counterclaim for a divorce in which she asserted, among other things, that she "is the fit and proper person to be entrusted with [the minor] child's care and custody subject to supervised visitation" with the husband.

         In December 2015, after holding an "office conference, " on the parties' pending motions regarding visitation, the trial court granted the husband supervised visitation with the minor child. The trial court also ordered the family to submit to a psychological evaluation.

         The trial court held a trial on September 30 and October 4, 2016. The testimony indicated that the husband had developed a successful veterinary practice during the parties' marriage. The husband testified that he gave the wife approximately $14, 500 each month to deposit in the parties' joint bank account and that all of their expenses were paid from that account. The husband testified that, after he filed for a divorce, he began depositing $3, 000 into the parties' joint account but that he had continued to pay all of their joint expenses. The husband testified that marital problems began in May 2015, when he told the wife to pay the oldest child's college tuition out of their savings account rather than his business account. The husband testified that "there was never enough" money for the wife during the marriage.

         The husband was unable to answer many questions regarding his income or other financial matters and testified that his accountant had handled those issues. The accountant's testimony indicated that the husband earns the Social Security limit each year, which she testified is currently $118, 000, but that he also receives stockholder dividends and rental income of $225, 000. In 2015, the husband earned an income of $414, 000. The evidence indicated that at the time of the trial, the husband had financial accounts totaling approximately $1 million.

         The husband testified that he and the wife attended marriage counseling three times but that the wife had refused to go back to counseling. According to the husband, the wife and the children left the marital residence and moved in with the wife's parents in July 2015. The husband testified that he filed for a divorce in September 2015 because the wife had "done everything in her power to alienate my kids." The husband testified that he had been visiting with the minor child at a family-visitation center during the divorce proceedings and that it had been "terrible." The husband testified: "She cries, she's rude, she is disrespectful. She tells me she will never go anywhere with me, she will run away, she hates me."

         The wife testified that the husband had provided financially for the family during the marriage and that she had stayed home with the parties' children for the majority of the marriage. The wife testified that she believed that the husband had had an affair approximately 10 years before the divorce action was commenced but that they had remained together. The wife also testified that the husband had "rage" problems, that he would become angry and had thrown items, but that he had not directly physically harmed her or the children.

         The wife testified that the husband would give her three checks totaling approximately $14, 500 each month and that she would deposit the checks into their joint bank account. The wife testified that the husband had handled all the financial matters during the marriage and that she did not know how much income he earned until the divorce proceedings. According to the wife, the husband had not been very involved in the children's lives. The wife testified that, beginning in 2005, the husband was gone every weekend to participate in clay-shooting tournaments and that he began drag racing in 2012. The wife also testified that the husband, in recent years, had begun spending the majority of his time at work and at a home the parties owned in Dauphin Island. The oldest child also testified that the husband had often been absent from her and the minor child's lives and that she had "no relationship" with the husband. The oldest child recounted a few instances in which, she asserted, the husband had displayed "rage" and bizarre behavior.

         The wife testified that she had relied on credit cards to pay her expenses since the divorce proceedings began. She testified that, although she intended to secure employment, she was not sure if or when that would happen. The wife asked the trial court to award her $3, 000 in monthly child support, $10, 000 in monthly periodic alimony, and half of all the parties' and the husband's financial accounts, among other things.

         On October 13, 2016, the trial court entered an order divorcing the parties. That order provides, in pertinent part:

"2. By agreement of the parties, the primary residential custody of the minor child is awarded to the wife.
"3. The [husband's] visitation shall be as follows by agreement of the parties: He shall complete two more visitations at the Family Center. Then he shall have the following two Saturdays in a row from 9:00 a.m. to 5:00 p.m. He shall be accompanied by at least one of his relatives during the visitation. Thereafter, the visitation shall be standard visitation as set out below ....
"6. With respect to child support, the Court does award the wife child support in the amount of $2, 000 per month. ...
"....
"8. With respect to the private school ... the husband shall pay the private school tuition ... for the [minor] child for the remainder of this school year. He shall continue to pay the private school tuition pending further orders. However, if the visitation continues to be a problem still at the end of the school year, upon proper motions being filed with the Court, the Court will consider whether or not he shall be responsible for paying for the private school tuition solely.
"9. With respect [to] periodic alimony, the Court does award the wife $10, 000 per month for five years and thereafter, she is awarded $7, 000 per month. The Court does note that the husband earns over $700, 000 per year and has additional benefits from his employment at this stage of his life and that the totality of circumstances make this award fair and reasonable.
"....
"11. With respect to the Hunter house, the wife shall have first right of refusal to buy the husband's interest out of same house for one-half of the equity in the house and assuming the refinancing of the mortgage into her sole name. If she does not exercise her first right of refusal within 90 days, the property shall be sold on the open market to the highest bidder. The wife shall be allowed to remain in the homeplace until it sells and shall be responsible for the mortgage and property taxes and insurance and upkeep of the house pending the sale. If the husband pays the mortgage, he may deduct it from the alimony.
"12. With respect to the Dauphin Island house, the husband shall have first right of refusal to buy the wife's interest out of same house for one-half of the equity in the house and assuming the refinancing of the mortgage into his sole name. If he does not exercise his first right of refusal within 90 days, the property shall be sold on the open market to the highest bidder. The husband shall be allowed to remain in the Dauphin Island house until it sells and shall be responsible for property taxes and insurance and upkeep of the house pending the sale.
"13. In the event the houses are not purchased by the parties, the Court does reserve the right to appoint a Commissioner to sell the property to the highest bidder for cash and any profit or deficiency shall be shared equally by the parties.
"14. The Court does award the clinic building and lot to the husband.
"15. The Court does award the wife a judgment in the amount of $250, 000 against the husband representing alimony in gross. The husband shall pay off same $250, 000 to the wife as follows: $100, 000 within three months and the balance within six months.
"16. The husband shall make arrangements for the professional corporation to convey the 2013 F150 to the wife and shall pay any indebtedness due thereon, if any. The husband shall make arrangements for his veterinarian professional corporation to convey the 2011 4-Runner to the parties' daughter, [W.M].
"17. The husband shall be awarded all other interest in the veterinarian professional corporation, including the equipment and all assets, and shall be responsible for all indebtedness, if any.
"18. The husband is awarded the one-third interest in the boat, the golf-cart, the Seado, and the guns and the gun safe.
"19. The wife shall be responsible for her indebtedness with the Visa and American Express and the husband shall be responsible for any indebtedness in his name, if any.
"....
"21. With respect to the cash accounts, the husband shall immediately write a check to the wife from his personal checking account in the amount of $45, 000. The husband shall write a check to the wife from his personal money market account in the amount of $100, 000. The husband shall make arrangements for the wife to be awarded $200, 000 from the PC money market account. The husband shall be awarded all other money in the PC.
"22. With respect to the retirement accounts, the wife shall be awarded the remaining money in her retirement account and shall be awarded $39, 000 from the husband's retirement account. The wife shall be responsible for preparing the proper qualified domestic relations order to reflect the transfer of $39, 000 from the husband's retirement account.
"23. With respect to the money in [the wife's attorney's] trust account, same money shall be held pending the hearing regarding the attorney's fee.
"24. The Court does set the attorney's fee hearing over to November 2, 2016 at 9:00 a.m. to determine how much attorney's fee the husband will be responsible for paying, if any."

         We note that the failure of a judgment to adjudicate a claim for attorney's fees does not ordinarily render that judgment nonfinal. Blythe v. Blythe, 976 So.2d 1018, 1020 (Ala. Civ. App. 2007). In this case, however, the trial court ordered that money contained in the wife's attorney's trust account, which consisted of proceeds from the wife's 401(k) account and was subject to division between the parties, be held pending a decision on the wife's request for an award of attorney's fees. Thus, the October 13, 2016, order was not a final judgment because it did not "completely adjudicate all issues between the parties." Faellaci v. Faellaci, 67 So.3d 923, 925 (Ala. Civ. App. 2011).[1]

         The husband filed a motion seeking to alter, amend, or vacate[2] the October 13, 2016, order, in which he asserted, in part:

"2. The Court's order as it relates to custody of the minor child is incomplete and due to be amended. The order reflects an agreement was reached by the parties, but the order fails to state that the parties shall share joint legal custody of the minor child. The language of the order indicates an intent to award joint legal custody, but the order fails to specifically state such an award, ...

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