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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