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Cottom v. Cottom

Alabama Court of Civil Appeals

November 30, 2018

Leonard Irving Cottom, Jr.
v.
Kasey Leann Cottom

          Appeal from Baldwin Circuit Court (DR-11-901612)

          PER CURIAM

         Leonard Irving Cottom, Jr. ("the husband"), appeals from the judgment of the Baldwin Circuit Court ("the trial court") that, among other things, divorced him from Kasey Leann Cottom ("the wife").[1] The husband challenges the aspects of the judgment that granted the wife alimony, divided the parties' property, ordered the husband to pay an arrearage amount of unpaid pendente lite periodic alimony, and granted the wife attorney fees. The record does not support the division of property or the calculation of the husband's arrearage as expressed in the judgment. Accordingly, we reverse the judgment and remand the cause.

         Facts and Procedural History

         The husband and the wife were married on February 25, 1995, in North Carolina. No children were born from the marriage. The husband has the primary ownership interest in several businesses in North Carolina ("the businesses").

         On October 21, 2011, the wife filed a complaint in the trial court seeking a divorce from the husband. The husband filed a motion to dismiss, contesting the trial court's subject-matter jurisdiction and personal jurisdiction over him and asserting that the wife's domicile was not in Alabama. The trial court conducted a hearing on the husband's motion. At the hearing, the wife testified that, in 2009, she and the husband left North Carolina, traveled in a recreational vehicle, later emptied their house in North Carolina of personal possessions, and ended up living in Alabama near her parents' house. On January 6, 2012, the trial court entered an order denying the husband's motion to dismiss. The parties have not raised, and we do not discern, the trial court's jurisdiction as an issue on appeal.

         On November 20, 2013, the wife filed a motion seeking to hold the husband in contempt. In her motion, the wife asserted that, after mediation, the parties had reached an agreement in the summer of 2012.[2] She asserted that the husband had agreed to pay her $8, 000 a month and $25, 000 in September each year pending the outcome of the divorce proceedings. According to the wife, the actual source of the husband's payments to her had been mostly from income generated from the wife's interests in the businesses. The wife asserted that the payments stopped in the spring of 2013 and that, when the husband resumed the payments, the payments were less than the agreed-upon amounts. The wife also asserted that, under the agreement, the husband was to make payments for the mortgage on the house in North Carolina. The husband filed a motion seeking sanctions for the wife's alleged noncompliance with a discovery request.

         On January 9, 2014, the trial court conducted a hearing during which the parties announced that they had reached an agreement as to the issues raised in the pending motions. On October 28, 2015, the trial court entered an order, stating, in relevant part:

"The parties advised the Court that they had reached an agreement with regard to their competing motions.
"The payments to the [wife] from the [husband] for the dates of August 1, 2013, through the end of February, 2014, in the nature of temporary spousal support payments [were] made on the morning of January 9, 2014, whereby the [husband] wrote a check to the [wife's] counsel's trust account in the sum of $47, 690.00 for temporary support, which is meant to cover support from August 1, 2013 through the end of February, 2014, and giving him credit for $12, 000.00 he paid to the [wife] in October, 2013.
"Further, there were four payments of $1230 due on the parties' home in Seven Devils, North Carolina. The [husband] paid one (1) payment of $1, 230.00 via U.S. mail sent on or before the date of [the hearing] and the other three remain outstanding.
"The [husband] maintains a claim for a set-off, which is preserved and may be presented at final trial.
"The parties have advised the Court that they have reached an agreement as to a resolution of that matter by way of the [wife] providing certain additional discovery to the [husband].
"Henceforth, the [husband] shall pay the [wife] the sum of $8, 000.00 per month, as well as the sum of $25, 000.00 in September of each year."

         On December 14, 2015, the wife filed a motion seeking to hold the husband in contempt, asserting, in part, that the husband had failed to make the payments of $25, 000 in 2014 and in 2015 as required by their agreements and, she asserted, the October 28, 2015, order. On March 16, 2017, the wife filed another motion seeking to hold the husband in contempt, asserting that the husband had failed to make the $25, 000 payments in 2014, 2015, and 2016.

         The trial court conducted hearings on all pending issues on January 6, 2012, May 17, 2013, June 24, 2013, January 9, 2014, and March 17, 2017. The wife testified that she has multiple sclerosis, that she requires assistance and medical treatments because of her physical condition, that she has been unable to maintain employment since 2001, and that, besides alimony payments from the husband, her only source of income has been Social Security disability payments. The wife testified that the husband has not made the annual payments that she claimed were due, under their agreements, in September of 2014, 2015, and 2016.

         The wife testified that she owned the house in North Carolina in which the parties had previously resided and that she owned shares of stock in the businesses. The wife testified that she and the husband lived in Alabama from December 2009 to the summer of 2011 and that, after the parties' separation, the husband had moved back into the parties' former residence in North Carolina. The husband claimed a marital interest in the North Carolina house.

         Documentation submitted as exhibits indicate that the parties collectively owned 163.34 acres of land. The parties referred to some of that land as the "Snow Cloud lots." The wife and the husband both testified that title to 4 Snow Cloud lots are in the wife's name and that the husband had owned a total of 13 Snow Cloud lots. According to the husband's testimony, three Snow Cloud lots were acquired in the wife's name in September 1992 for around $48, 000 and, in 1997, those lots were swapped for four lots previously owned by the town in which the lots are located. The husband testified that he purchased eight Snow Cloud lots in 1994 for $500 per lot and that he purchased another five Snow Cloud lots for $500 per lot later in the same year. The husband testified that, in 2006, after giving a discount of $20, 000 for the buyer to build a road, he sold eight of the Snow Cloud lots titled in his name for $480, 000, or $60, 000 per lot.[3] A personal financial statement of the parties dated March 31, 2007, indicates that eight Snow Cloud lots were worth $480, 000. According to his testimony, the husband valued eight Snow Cloud lots at a total of $240, 000 in his personal financial statement dated August 31, 2011.[4] The husband later testified that the current fair-market value of the five Snow Cloud lots in his name was $10, 000 total and that the four lots in the wife's name were worth a total of $8, 000.

         On June 30, 2017, the trial court entered a judgment divorcing the parties and ordering, in relevant part:

"3. The [wife] is awarded permanent periodic alimony from the [husband] in the amount of $10, 000.00 per month, which said payment is due on or before the first day of each month.
"4. In that the [husband] failed to abide by this Court's Temporary Order with reference to an annual temporary spousal support payment of $25, 000.00 each year to the [wife] during the pendency of the divorce, and the [husband] failed and refused to make said Court ordered payment in the years 2014, 2015, and 2016, a judgment [is] due to be, and is hereby entered in favor of the [wife] in the sum of $75, 000.00, as well as accrued interest of $8, 522.00 through April 5, 2017, and $15.41 per day for each day beginning on April 6, 2017, and thereafter, for which execution may issue.
"....
"6. The [husband] is awarded all interest in all businesses of the parties; and shall pay the [wife] a lump sum payment of $755, 650.00 for her interest in said businesses. Said monies are due and payable from the [husband] to the [wife] on or before one hundred ...

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