CAMPBELL v. CAMPBELL

41 So.3d 775

Randy CAMPBELL v. Sherri Lynn CAMPBELL.

2070724.

Court of Civil Appeals of Alabama.

April 24, 2009.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Roianne Houlton Conner, Montgomery, for appellant.

Michael A. Mosley, Dadville, for appellee.

PITTMAN, Judge.

Randy Campbell ("the husband") appeals from a divorce judgment that, among other things, ordered him to pay alimony to Sherri Lynn Campbell ("the wife"), awarded the wife a portion of his military-retirement benefits, and ordered him to pay a portion of the wife's attorney fees.

The parties were married on May 24, 1985, and were granted a legal separation on August 26, 2005, in Montgomery County. On September 14, 2007, the husband filed a complaint seeking, among other things, a divorce from the wife and a division of the parties' marital property and debts. The following month, the wife filed an answer and a counterclaim seeking a divorce from the husband. The trial court conducted an ore tenus proceeding on January 31, 2008, at which time the parties; Robert Campbell, the parties' adult child; and Kenneth Peoples, a private investigator hired by the husband,¹ testified.

The husband testified that he had served 21.5 years in the United States Air Force and that he had retired in 2003 as a master sergeant. He acknowledged that the wife had traveled with him throughout his military career and had reared their son, but he added that she occasionally had held various short-term low-wage jobs during the marriage. The husband stated that he had begun receiving $1,269.68 in monthly military-retirement benefits after retiring. The husband testified that he had been hired by CSC Applied Technology in 2003 to work as a support technician helping to operate the Maxwell Air Force Base computer network; he offered a statement indicating that his biweekly income from that employment was $1,722.18. The husband also testified that he had an employer-funded 401(k) retirement account through his present employer; he stated that, although he did not begin making monthly contributions to that account until October 2006, by the time of trial the total amount in the account was $12,400. The wife stated that she had no professional employment experience and that she was only working part-time because of multiple health problems. She stated that her hourly wage was $6.75. Although the wife admitted that she could not afford the marital residence, she requested alimony and a portion of the husband's retirement accounts as her share of the marital estate.

The wife accused the husband of being verbally and physically abusive throughout the marriage; the husband admitted that he and the wife had had a volatile relationship throughout the marriage. He refused to characterize either party as abusive, but he admitted that screaming, pushing, shoving, and threats were regularly part of the marital arguments. Although he was willing to give certain personal property to the wife, the husband stated his opinion that the wife was not entitled to alimony or to any share of his two retirement accounts.

The trial court entered a judgment on March 31, 2008, in which it awarded the marital residence to the husband together with the sole responsibility for retiring the debt secured by that property. Each party was awarded a motor vehicle and certain items of personal property. The husband was ordered to pay alimony in the amount of $500 per month for 3 years; he was also ordered to pay the wife 42% of his monthly military-retirement benefits. The husband was instructed to maintain health-insurance coverage on the wife and to reimburse her for dental expenses that she had incurred during the pendency of the divorce action. In addition, the wife was awarded one-half of the husband's 401(k) retirement savings account; the husband was also instructed to pay one-half of the wife's attorney fees.

The husband contends that the trial court erred in awarding the wife alimony, a portion of his military-retirement benefits, a portion of his 401(k) account, and attorney fees. The law is "well settled that trial judges enjoy broad discretion in fashioning divorce judgments." Ex parte Bland, 796 So.2d 340, 343 (Ala.2000). "`In reviewing the trial court's judgment in a divorce case presented ore tenus, we will presume the judgment to be correct until it is shown to be plainly and palpably wrong or unjust.'" Id. (quoting Ex parteJackson, 567 So.2d 867, 868 (Ala.1990)). Matters of alimony and property division are interrelated, and a reviewing court must consider the entire judgment in determining whether the trial court abused its discretion on either issue. See McClelland v. McClelland, 841 So.2d 1264, 1271 (Ala.Civ.App.2002) (citing Willing v. Willing, 655 So.2d 1064, 1066-67 (Ala.Civ.App. 1995)).

In addition, the law is well settled that "`"[p]roperty divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court."'" Ex parte Drummond, 785 So.2d 358, 361 (Ala.2000) (quoting Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ. App.1996), quoting in turn Duckett v. Duckett, 669 So.2d 195, 197 (Ala.Civ.App. 1995)); see also Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996).

"`Each case is decided on its own peculiar facts and circumstances. Criteria which should be considered by the trial court when awarding alimony and dividing property include the length of the parties' marriage, their ages, health, station in life, and future prospects; the source, value, and type of property owned; the standard of living to which the parties have become accustomed during the marriage and the potential for maintaining that standard; and, in appropriate situations, the conduct of the parties with reference to the cause of divorce.'"

McClelland, 841 So.2d at 1271 (quoting Currie v. Currie, 550 So.2d 423, 425 (Ala. Civ.App.1989)); see also Brasili v. Brasili, 827 So.2d 813 (Ala.Civ.App.2002).

The husband first contends that the trial court could not award the wife any alimony in light of the evidence indicating that the wife was cohabiting with another man. The husband correctly references Ala.Code 1975, § 30-2-55, providing for the termination of periodic alimony "upon ... proof that ... such spouse is living openly or cohabiting with a member of the opposite sex." However, our caselaw requires that the husband prove "some permanency of relationship, along with more than occasional sexual activity." Sanders v. Burgard, 715 So.2d 808, 811 (Ala.Civ.App.1998).

The husband's private investigator testified that he had determined that the wife was living at the residence of Michael Blankenship. In contrast, the wife testified that, after the husband had been awarded the marital residence as part of the parties' legal separation, she had been unable to afford independent housing. She stated that she had moved into Blankenship's home and had been renting a bedroom from him for $125 a month; the trial court admitted documentation offered by the wife indicating that she had continued to pay monthly rent to Blankenship throughout the parties' separation and until the time of trial. The wife admitted that, subsequent to her arrival as a tenant, she had begun dating Blankenship; she also admitted that Blankenship and she had indulged in occasional sexual relations. The wife, however, insisted that, as soon as possible, she intended to move into an apartment of her own and vehemently denied the husband's contentions that she was "cohabiting" with Blankenship in an ongoing or permanent manner.

To the extent that the trial court's judgment does not contain detailed findings of fact, this court must assume that "the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous." Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). The trial court's judgment made no express finding regarding the wife's alleged cohabitation but, instead, awarded the wife periodic alimony in the amount of $500 per month for three years. That award is an implicit rejection of the husband's cohabitation contention; the trial court apparently determined that the evidence did not support a finding of cohabitation. We conclude that, based upon the disputed testimony and documentary evidence offered on that issue, the trial court acted within its discretion when it implicitly denied the husband's allegations of the wife's cohabitation.

The husband also contends that the trial court erroneously ordered him to pay the amount of $500 in monthly periodic alimony to the wife for three years. We note that "[t]he purpose of alimony is to preserve, as far as practical, the economic status quo the parties enjoyed during the marriage." Pickett v. Pickett, 723 So.2d 71, 74 (Ala.Civ.App.1998). The three-year time limit imposed by the trial court connotes that the award is one of rehabilitative alimony. Rehabilitative alimony is defined as "`a sub-class of periodic alimony'" that allows a spouse "`time to reestablish a self-supporting status.'" Giardina v. Giardina, 987 So.2d 606, 620 (Ala.Civ.App. 2008) (quoting Jeffcoat v. Jeffcoat, 628 So.2d 741, 743 (Ala.Civ.App.1993)).

The husband admitted that his combined salary and retirement benefits totaled approximately $3,000 per month; at best, the wife was earning approximately $556 per month through her part-time employment. With the additional $500 per month in rehabilitative alimony, the wife will have approximately $1,589 in monthly income for the next three years. From that amount, she must establish a residence, pay utility bills, defray medical and dental expenses, pay to maintain and operate her motor vehicle, and pay her other necessary living expenses. The husband's main argument against an award of rehabilitative alimony was based on his contention that the wife could not...