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Devore Cheshire v. Cheshire

Alabama Court of Civil Appeals

November 1, 2019

Emmett Shane Devore Cheshire
v.
Jenifer Eve Cheshire

          Appeal from Shelby Circuit Court (DR-17-900348).

          Thompson, Presiding Judge.

         Emmett Shane Devore Cheshire ("the husband") appeals from a judgment of the Shelby Circuit Court ("the trial court") divorcing him from Jenifer Eve Cheshire ("the wife"). In the judgment, among other things, the trial court divided the parties' marital assets and awarded the wife periodic alimony for a period of eight years.

         The record indicates the following. The parties married in February 1994 in New York. At the time of the trial, the husband and the wife had been married 24 years and both were 53 years old. They did not have any children.

         According to the wife, in March 2017 she traveled to Mexico at the insistence of the husband to visit a friend who was terminally ill. The day she returned home, the wife said, the husband told her that he wanted a divorce. The wife said that the husband's statement came as a surprise to her. In May 2017, the husband left the marital residence at the wife's request and moved to Crestview, Florida. The wife filed a complaint for a divorce on June 8, 2017, on the grounds of incompatibility and an irretrievable breakdown of the marriage.

         On June 9, 2017, the husband filed an answer and a counterclaim for a divorce. During the August 20, 2018, trial of this matter, the husband testified that the marriage had stopped being a partnership about five years before he told the wife he wanted a divorce. He explained that he felt like the wife was "selfish" and that, together, the parties always did what the wife wanted to do. The wife acknowledged that she had told the husband during more than one argument that she would divorce him. She also related an incident from much earlier in the marriage when the husband and she were "both pretty drunk" at a concert and she bit him, after which he punched her in the face. She did not explain what had initially led her to bite him.

         During the time the parties were separated but after the complaint was filed__the specific time is not clear from the record__the wife discovered sexually explicit e-mails between the husband and a woman he had met via computer while playing an online computer game. Evidence indicated that the woman was married and living in Florida and that she and the husband had been exchanging e-mails since October 2014. The husband testified that he did not physically meet the woman until April 2017, after he told the wife he wanted a divorce. The husband said that, in April 2017, he and the woman met at a hotel in Florida and had sex. Nonetheless, the e-mails indicate that the husband and his paramour had had a long-term active fantasy relationship before they met physically. The husband acknowledged that, in their e-mail correspondence, he and the woman discussed the husband's desire to divorce the wife and to have a child with the woman. The wife testified that she had been unaware of the husband's extramarital relationship until she discovered the e-mails, which, as noted earlier, was apparently after she filed the divorce complaint.

         On June 15, 2017, the wife filed a motion in the trial court seeking pendente lite support. At a November 22, 2017, hearing on the wife's motion, the wife testified that, from May 2017, when the parties separated, until November 2017, when the pendente lite hearing was held, the husband's bank records indicated that he had spent $17, 070.80 gambling. The husband conceded that he had spent that amount gambling during the time in question. During that same period, the wife said, the husband had given her only $600 for groceries, clothes, gas, care of their pets, and similar household expenses. The wife said that she had to borrow $35, 000 from a family member and a friend to make ends meet.

         The husband testified that the wife had mischaracterized the way he had handled money after his departure from the marital residence. He said that, after he left the marital residence, he continued to pay the mortgage and the utility bills associated with the marital residence. The husband testified that he had sent text messages to the wife asking her whether she needed money for food, gas, clothes, and for the pets, but, he said, she did not respond to him. The husband testified that he assumed that, because the wife was working for a pet-sitting service when he left the marital residence, she was still working "making the money to pay her individual bills." The wife denied that she had received those text messages from the husband.

         On December 1, 2017, the trial court entered a pendente lite order pursuant to which the husband was to pay the wife $3, 500 a month plus 25% of any commissions he received. The wife had exclusive use of the marital residence pending the divorce. The husband was directed to pay the mortgage and all utility bills. He was also ordered to pay the wife's medical bills.

         The husband filed a motion to modify the pendente lite order, and further litigation ensued. On April 2, 2018, the the parties announced to the trial court that they had reached an agreement regarding pendent lite support. Pursuant to that agreement, which the trial court incorporated into its order of April 17, 2018, the husband was to continue to pay the wife $3, 500 a month plus 35% of any commissions he made. The husband was also directed to make the April 2018 mortgage payment on the marital residence, but, from that point forward, the wife was responsible for paying the mortgage. She was also ordered to pay all current and future "household bills."

         The action proceeded to trial on August 20, 2018. Evidence presented at the trial indicated that, when the parties were first married, the wife had graduated from cosmetology school and worked as a cosmetologist. Early in the marriage, the husband and the wife both obtained associates degrees and went on to the State University of New York, and, in 2004, each obtained a bachelor's degree. The wife earned her degree in environmental biology; the husband earned his in paper-science engineering. While in college, the parties each accumulated significant student debt. The husband testified that, in 2006, after graduating, he attempted to obtain a job that would allow them to stay in New York, but, he said, the parties needed money and he accepted an offer from a company called Nalco to work at a paper mill in Valliant, Oklahoma, near the Oklahoma-Texas border. While the husband worked in Valliant, the husband and the wife lived in Paris, Texas.

         The wife testified that, after working only six months at the Valliant mill, the husband was transferred because, she said, he threatened to "cut the throat" of a competing sales representative. The husband did not deny making the threat, but he said that he did it because the competitor "messed with [his] delivery driver." Rather than being punished for his conduct, the husband said, he was praised for coming to the aid of the driver. Regardless, the husband was transferred to a plant in Orange, Texas, near Lake Charles, Louisiana, where the parties lived for about four and a half years. The wife testified that the husband began "having trouble with the mill management" in Orange. As a result, she said, in 2012, the husband was transferred to Ruston, Louisiana, and the parties moved again. Ultimately, the wife said, the husband was fired from Nalco. In 2013, the husband took a job with GE in Birmingham, and the parties moved to Shelby County in January 2014. The wife said that the husband was fired from his job with GE and that he began working with Evoqua Water Technologies in Birmingham in December 2015.

         The evidence indicated that, at the time of the trial, the husband's base salary was $97, 539. He could also earn a commission of $78, 083 or more if he reached or exceeded his goal of making $9 million in sales. The husband explained that if he reached 80% of the goal, he would earn 50% of the total commission and that he would earn 60% of the commission if he reached 90% of his goal. The husband said that he would not receive any commission if he did not meet at least 80% of the sales goal. However, if exceeded his sales goal, the husband said, he could earn an even higher commission. The commissions were paid quarterly. In 2016, his first year with Evoqua, the husband earned $128, 696.77. He acknowledged that he could earn approximately $170, 000 for the year the trial was taking place.

         In addition to his salary, the husband said, he had a company car. The husband testified that just under $200 was taken from his paycheck each month so that he could drive the vehicle for personal use. Evoqua also provided the husband with a cellular telephone and paid his expenses when he traveled for work.

         The wife testified that the parties moved seven times in eight years. She acknowledged that not each move was associated with a job change. For example, the parties had to move from one house when the lease on that house expired. They had to move from another house that was apparently damaged in a hurricane. Nonetheless, the wife said, she managed the packing and unpacking for each move, setting up the household at each new location. She testified that she was the person who found new doctors and veterinarians, did the shopping, and took care of the other necessities that had to be dealt with when moving to a new area. The wife said that she also entertained the husband's business associates. The wife attributed the husband's frequent changes in jobs to his inability to "get along" with the people with whom he worked.

         The evidence indicated that the wife did not attempt to obtain a full-time job after the parties finished college. She took some graduate-level courses but never actively pursued a graduate degree. The wife testified that the parties' frequent moves prevented her from establishing a career of her own or from working toward a graduate degree. Instead, she said, she had worked four part-time jobs in the eleven years before the parties separated. She said that, during the marriage, the most she had ever earned was $10 an hour working 35 hours a week. The parties agreed that the husband asked the wife to work at different points during the marriage. While living in Birmingham, the wife had worked as a stable hand at the stables where the parties kept their two horses. However, the wife said, because of back and neck pain and plantar fasciitis, she was unable to stay in that job. At the time the parties separated in May 2017, the wife worked no more than ten hours a week as a pet sitter. However, the wife said, she was so upset about the circumstances regarding the parties' separation that she "couldn't stop crying," she was making mistakes and unable to concentrate, and, therefore, she said, she had to quit that job. At the trial, the wife said that she had not had a job in 14 months.

         The husband testified that, during the marriage, he had asked the wife to work, not just for the money, but because, he said, when the wife was not feeling good, he encouraged her to work or volunteer some place so that she would be around other people. In July 2012, the husband and the wife bought a pair of horses. The wife said that she had been riding since she was five years old. The husband testified that he had not realized how expensive the horses would be and wanted to "get rid of" his horse, but the wife would not let him. Not only did the horses require upkeep, but, during the marriage, the wife entered them in what she called "schooling shows." The wife testified that the upkeep for the horses used to cost between $2, 500 and $3, 000 each month. The husband said that, at that time, the expense of keeping the horses was half of his take-home pay each month. He said that eventually he had needed to take money from his retirement account to pay the costs associated with the horses. At the time of the trial, the wife said, she had moved the horses to stables costing less than half the price of the previous stables. She said that she had "reduced the cost [associated with the horses] immensely."

         The wife testified that she realized the horses were expensive and had found a new home for the husband's horse. However, she said, that horse was injured and she had it returned to her so that it would not be sent to a "slaughter auction." The wife said that she would be distraught if she had to give away the horses, adding that they were not a hobby, they were like children.

         The wife testified that, during the marriage, in addition to traveling to horse shows, the parties had traveled to the coast about once a month. She said that they had also taken short trips to Nashville and Memphis and had visited her family. At least once a year, the wife said, the husband and the wife would take a vacation to Mexico. The husband testified that he loved Mexico. At one point, the husband said, the parties had formed a corporation for the purpose of purchasing a small parcel of property in Mexico. The husband testified that the Mexico property was worth about $5, 000, but, he said, he no longer wanted the property.

         Like the wife, the husband also had an expensive hobby. He acknowledged that he gambled relatively large sums of money. The husband testified that, after the parties' separation and the entry of the order directing him to pay the wife pendente lite support, he continued to gamble. In addition, the husband said that he had also given his paramour $2, 000 and had taken vacations with his paramour and her children.

         Evidence indicated that, when the wife filed the divorce complaint, the husband took $20, 000 from his retirement account and used an additional $5, 000 from the account to pay the tax penalty for early withdrawal. The husband testified that he intended to use the money to make needed repairs to the marital residence so that the house could be sold and the equity divided between the wife and him. Photographs of the house indicated that cabinets were missing and flooring and that drywall needed replacing. The wife testified that squirrels had damaged the roof and wiring and that there was no electricity to the living room. She also said that the deck outside the house and the deck around the swimming pool were both rotting in places and needed to be repaired or replaced. Instead of allowing the husband to use the $20, 000 to make the necessary repairs, the husband said, the wife wanted a new vehicle. The wife testified that her previous vehicle was "catching on fire." The wife purchased a ten-year-old vehicle for $9, 000. The husband said that he used the remainder of the money he withdrew to gamble. At the trial, the wife testified that, based on the husband's ...


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