142 So. 3d 685
Ala. Civ. App.2013Background
- Wife filed for divorce on Feb 17, 2011 seeking property division, periodic and alimony-in-gross, health-insurance costs, debts, and attorney fees.
- Temporary restraining order issued Feb 18, 2011 to prevent disposal of money/property; allowed ordinary expenses.
- Consent pendente lite order entered May 26, 2011 requiring husband to pay $900/month pendente lite and 25% of net earnings over $3,000, plus health-insurance maintenance.
- July 2012 contempt motions and August 2012 contempt motions alleged nonpayment and violation of the TRO; health-insurance lapse.
- Husband’s Ace Masonry, Inc. became subject to court custodian and later dissolution order (Oct 2011) finding insolvency; balance sheets showed liabilities exceeding assets; testimony and records disputed value of Ace Masonry.
- Trial court granted divorce on Sept 24, 2012 awarding wife $200,000 alimony-in-gross, $2,000/month periodic alimony, health insurance for 36 months, and $15,250 in attorney fees; husband appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether alimony-in-gross award is supported by present estate value. | Beck argues Ace Masonry was dissolved; evidence does not support $200,000 as present estate value. | Beck contends dissolution and liabilities mean Ace Masonry had no present estate worth $200,000. | Reversed and remanded for reconsideration of alimony-in-gross. |
| Whether periodic alimony award is appropriate given finances on remand. | Beck challenges ability to pay $2,000/month. | Beck’s earnings evidence insufficient; trial court should re-evaluate on remand. | Reversed and remanded with alimony-in-gross. |
| Whether attorney fee award is proper given revised alimony determinations. | Award should be reconsidered if alimony changes. | Fees should be revisited after remand. | Reversed and remanded for attorney-fee reconsideration. |
| Whether ore tenus standard and property-division considerations were correctly applied given Ace Masonry’s status. | Trial court misvalued property by relying on undisclosed assets. | Discretion to balance earnings and assets supports alimony decisions. | Remand warranted; property division to be reconsidered on remand. |
Key Cases Cited
- Ryland v. Ryland, 12 So.3d 1223 (Ala.Civ.App.2009) (ore tenus standard; credibility and law-applied questions reviewed on appeal)
- Whorton v. Bruce, 17 So.3d 661 (Ala.Civ.App.2009) (presumption of correctness unless legal error; law applied to facts reviewed de novo)
- TenEyck v. TenEyck, 885 So.2d 146 (Ala.Civ.App.2003) (differs between alimony-in-gross and periodic alimony; must satisfy timing and vesting requirements)
- Lacey v. Lacey, 126 So.3d 1029 (Ala.Civ.App.2013) (alimony-in-gross payable from present estate as of divorce; value must be proven)
- Ex parte Drummond, 785 So.2d 358 (Ala.2000) (conduct of parties as factor in dissolution-related decisions)