Edwards v. Edwards

26 So.3d 1254

Delilia EDWARDS v. George EDWARDS.

2080125.

Court of Civil Appeals of Alabama.

July 24, 2009.

Nancy M. Kirby, Prattville, for appellant.

Steven D. Adcock, Talladega, for appellee.

PER CURIAM.

Delilia Edwards ("the wife") and George Edwards ("the husband") were married in March 1967, when the wife was 14 years old and the husband was 19 years old. The parties have two adult children. After 39 years of marriage, the parties separated in November 2006. The wife sued the husband for a divorce, and, after a trial in March 2008, the trial court divorced the parties and divided their property. The wife appeals, arguing that the division of property is inequitable, that the trial court arbitrarily assigned values to the parties' real property, and that the trial court's award of short-term rehabilitative alimony without reserving the right to award permanent periodic alimony is error.

The judgment specifically sets out the property and alimony awards as follows:

"4. The parties jointly own five (5) real estate tracts and/or parcels which are comprised of as follows:

"A. The `motel property';

"B. The mobile home and approximately 169 acre tract;

"C. The `trailer park property';

"D. 1½ acre tract on 280;

"E. The `Vincent property'.

"5. Each property and/or tract shall be immediately placed on the open market for sale. The parties shall cooperate in the listing of the properties with a realtor and agreeing upon a sales price for each property. Upon the sale of each tract or parcel, the net proceeds after paying all encumbrances, realty commissions, closing costs, etc., shall be divided as follows: the [wife] shall receive 331/3% of the net sales proceeds; and the [husband] shall receive 662/3% of the net sales proceeds. Pending the sale, the [husband] shall be responsible for paying all taxes, assessments and insurances on the properties.

"6. The [husband] shall be allowed the exclusive right to use and possess the mobile home for his use and benefit pending the sale of said property; and the right to exclusively operate and lease restaurant/motel property.

"7. In the event that the parties cannot agree on a sales price or any other issue regarding the sale of the property, either party may petition the court to sell same at public auction.

"8. Should the [husband] wish to purchase any of the [wife's] interest in any of the properties, he shall be allowed to pay to the [wife] the following:

"A. $232,305.00 on the `motel property';

"B. $55,425.00 on the `169 acre tract';

"C. $54,660.00 on the `trailer park property';

"D. $27,330.00 on the `1½ acre tract on 280';

"E. $2,733.00 on the `Vincent property'.

"Should the [husband] remit to the [wife] said amount on any of the respective properties, the [husband] shall be the sole and separate owner of said property. At that time the [wife] shall execute any documents necessary to transfer to title in and to said property to the [husband]; and the [wife] shall be divested of all her right, title and interest in and to same.

"9. The [husband] shall pay to the [wife] the sum of $600.00 per month as periodic alimony for a period of 12 months from the date of the execution of this decree or until such time as of any of the above-listed properties sell, with the exception of the Vincent property, whichever occurs first. Upon the happening of either event the alimony obligation shall cease.

"10. If any of the properties have not sold after a period of 12 months, either party may petition the court to sell said property at public auction.

"11. The [husband] shall have all right, title and interest in and to the mobile home of the parties, and the [wife] is divested of all her right, title and interest in and to same.

"12. The [wife] shall be the sole and separate owner of all the following items of personal property: her rings and her father's rings; her box collection; her personal pictures; her china and her crystal; her cookbooks; her punch bowl and tray; her personal belongings such as clothes, shoes and makeup; red rocking chair; Sadie's chair; (2) mirrors and one-half of all the family photographs or copies of same. The [husband] is hereby divested of all his right, title and interest in and to same.

"13. The [husband] shall be the sole and separate owner of all items of personal property presently in his possession which have not been awarded otherwise hereinabove; and the [wife] is hereby divested of all her right, title and interest in and to same."

The wife was 55 years old at the time of trial. Because she was pregnant at the time the parties married, she dropped out of high school after completing the ninth grade; she did receive her GED in 1974. The wife has held several low-paying jobs over the years, but none of them has required specialized education or training. She has worked at a company called Vulcan Binder, and, most recently, she worked at the Talladega Senior Center in the kitchen. According to the husband, the wife took courses in interior design and in real estate earlier in the marriage, but neither party testified that the wife had ever worked in the fields of real estate or interior design. The wife suffers from arthritis in her hands and hemorrhoids, and she has had carpal-tunnel-release surgeries in both of her hands. The wife had been sitting with two or three elderly and ill persons in the months before the trial, earning $6 per hour, but she had also unsuccessfully sought employment at Vulcan Binder, at Earlyne's Florist, at a Wal-Mart discount department store, and at a local school lunchroom before trial.

Over the years, the parties had at least two successful family businesses. The husband ran an upholstery shop for several years. Although the wife testified that she had assisted the husband at the shop, the husband indicated that she had helped very little. Later, beginning in the mid to late 1980s and through the mid 1990s, the parties ran a motel. The wife testified that she had worked the desk at the motel and had performed maid services. In addition, she said that, before they could run the motel, it had required extensive renovation and repair, which she said she had assisted in performing. The husband disputed the level of assistance the wife had provided in both the remodel and the running of the motel. The parties also own and run a trailer park.

According to the parties, both of them used drugs during part of the marriage. The husband admitted that he had used marijuana for several years and that he had tried cocaine once; however, he said that he had stopped using drugs of any kind about nine years before the trial because he was subject to random drug testing by his employer. The husband was once arrested for possession of marijuana in either 1989 or 1990; he pleaded guilty to felony possession and was placed on five years' probation. The wife was also arrested at the same time, but she pleaded guilty to a misdemeanor charge.

The wife admitted that she had used several different drugs during the marriage, including marijuana, cocaine, crack cocaine, and methamphetamine. The wife also admitted that she had abused alcohol for several years of the marriage; however, she said that she had stopped drinking alcohol in 2000. Although she said that she had stopped abusing drugs in April 2006, the wife admitted that she had used marijuana as recently as October or November 2006, around the time she left the husband. The wife insisted, however, that she had not used any controlled substance since the parties' separation.

According to the husband, the wife's drug use and alcoholism was a problem during the marriage. He accused the wife of using rent money she had collected from the trailer park to purchase drugs. He also presented evidence indicating that the wife had allowed people to use rooms at the motel the parties had once operated for free in exchange for drugs.

Although the wife admitted that she had used money for drugs at times instead of using the money for groceries or for bills, she commented that the husband had used those drugs with her. She denied having allowed the use of rooms at the motel in exchange for drugs and denied having traded sexual favors for drugs. She did testify that both parties had consensually engaged in sexual relations outside of the marriage once.

A further point of contention between the parties was the wife's practice of taking out loans for one of the parties' adult sons. The wife testified that she had taken out two loans to assist the son during the period when he was running a restaurant. The husband said that the wife may have taken out the loans to assist the son but that the money the son had given the wife to repay the loans had been used for drugs instead.

The husband had worked for Alabama Marble as a crane operator for over 10 years; he also had operated other large equipment for the company as needed. He testified that he had earned $3,400 per month at that job. At the time of trial, however, he was no longer employed by the company. The record does not reveal whether the husband, who was 60 years old at the time of trial, intends to pursue other employment. He did comment that, at his age, he thought that he would have trouble getting hired.

As previously mentioned, the husband and the wife own a trailer park consisting of seven lots, six of which are usually rented for $100 per month. The parcel of property on which the trailer park sits was valued by the wife at $200,000 and by the husband at $100,000. The trial court valued this property at $163,980.¹

The husband and the wife lived in a mobile home situated on approximately 169 acres of land. The mobile home, according to the wife, is in a state of disrepair. She said that one could see the ground through a hole in the floor in the bathroom and that the refrigerator was kept closed by placing a jug of water in front of it. The 169-acre tract was valued at $338,000, or $2,000 per acre, by the wife and at "tax...