Swift v. Swift

265 So.3d 308

Ida Le Blanc SWIFT

v.David Dauphin SWIFT, Sr.

2170023

Court of Civil Appeals of Alabama.

May 25, 2018

Rita H. Scott of Scott & Scott Law, LLC, Fairhope; and Wendy Brooks Crew of Crew Law Group PC, Birmingham, for appellant.

Floyd C. Enfinger, Jr., and Margaret Enfinger Pace of Law Office of Floyd C. Enfinger, Jr., P.C., Montrose, for appellee.

MOORE, Judge.

Ida Le Blanc Swift ("the wife") appeals from a judgment entered by the Baldwin Circuit Court ("the trial court") divorcing her from David Dauphin Swift, Sr. ("the husband"), to the extent that the judgment divided the parties' property. We affirm in part and reverse in part.

Procedural History

On February 24, 2014, the wife filed a complaint seeking a divorce from the husband. The husband answered the complaint on February 28, 2014.

After a trial, the trial court entered a judgment on November 18, 2016, divorcing the parties; ordering the husband to pay the wife $5,000 per month in periodic alimony; awarding the husband the parties' boat, all his business interests, the vehicles in his possession, the parties' house located in Lillian ("the Lillian house"), and the contents of the Lillian house, with the exception of any items inherited from the wife's family; and awarding the wife the parties' condominium located in Fairhope ("the Fairhope condo"), the contents of the Fairhope condo, with the exception of any items inherited from the husband's family, certain real property owned by the parties located in Conecuh County ("the Conecuh County property"), and the vehicles in her possession. The parties were ordered to divide their United Bank shares, with the husband receiving 90% of the total shares and the wife receiving the remaining 10%, and "[a]ll retirement accounts, investment accounts, annuities, IRAs, and other accounts," with the wife receiving 35% of the funds in those accounts and the husband receiving the remaining 65%. The husband was ordered to "maintain in full force and effect a policy of insurance on his life, with [the wife named] as beneficiary in a benefit amount of no less than $350,000." Finally, the divorce judgment provided:

"12. Any personal property not otherwise disposed of by this Order shall be equally divided between the parties. If the parties cannot mutually agree upon such division, the parties shall compile a list of all such unresolved items. The husband shall have first choice of one item, the wife the next choice of one item, with this process continuing until all items are selected."

On December 16, 2016, the wife filed a motion titled "Motion to Alter Amend or Vacate Pursuant to Rule 59[, Ala. R. Civ. P.]." On February 14, 2017, the trial court entered an order granting the wife's motion in part and stating, in pertinent part:

"Specifically, with regard to the personal property of the parties, each party is to receive any and all items that were given to them or inherited from his or her own family members and the joint personal property that was acquired during the marriage as wedding presents or specific items of sentimental value are to be divided equally. If the parties cannot mutually agree upon such division, the parties shall compile a list of all such unresolved items. The husband shall have first choice of one item, the wife the next choice of one item, with this process continuing until all items are selected."

On March 21, 2017, the wife filed her notice of appeal to this court. That appeal was docketed as appeal no. 2160470. This court subsequently dismissed that appeal as being from a nonfinal judgment. See Swift v. Swift (No. 2160470, Aug. 1, 2017), 266 So. 3d 18 (Ala. Civ. App. 2017) (table).

On August 2, 2017, the wife filed a motion for clarification and a separate motion requesting the trial court to award her the property set forth on a list attached to the motion or to set the matter for a hearing. The husband filed responses to both motions.

On August 21, 2017, this court issued the certificate of judgment in Swift. On September 28, 2017, the trial court entered an order stating, in pertinent part, that "[t]he Husband shall receive any and all property located in the Lillian House and any property that is currently in his possession" and "[t]he Wife shall receive any and all property located in the Fairhope condo and any property that is currently in her possession." On October 4, 2017, the wife filed her notice of appeal.

Facts

The husband testified that the parties had married on December 6, 1975, and that they had had two children together, both of whom were adults at the time of the trial.

According to the husband, his annual income from all sources in 2014 was $358,570. He testified that the parties' income had been derived primarily from his employment with Swift Supply, Inc., a corporation that sells lumber and building materials. At the time of the trial, the husband owned 10% of the shares of Swift Supply and was the chairman of the board of that company. He testified that his base salary is $142,000. The husband also owns a one-third interest in Palustris Products, LLP, which owns a one-half interest in various timberlands and tracts of real property, as well as a one-half interest in Swift Lumber, Inc. The husband's two brothers own the remaining two-thirds interest in Palustris. The husband testified that Palustris is a longtime Swift family asset. The husband also testified that he owns a one-third interest in Swift Brothers, LLC, which owns certain timberland, as well as a one-half interest in a house in Baldwin County, and that his two brothers own the remaining two-thirds interest in Swift Brothers. The husband testified that his interest in Swift Brothers had been inherited.

The husband testified that he had been the chairman of the board of United Bank ("the bank") for approximately 15 years and had been on the board for several years before he began serving as the chairman. He receives fees of $28,000 per year as a result of his position as chairman of the board of United Bank. He testified that he owns 31,772 shares in the bank, that the wife owns 8,217 shares, and that Swift Brothers owns shares as well. He testified that the shares were valued at $8.01 per share at the time of the trial. According to an exhibit introduced by the husband, he had inherited all but 4,079 of his total bank shares; therefore, using the value of $8.01 per share, the value of the husband's inherited shares is $221,820.93 of the parties' $320,311.89 total share value. The wife testified that the parties had used the dividends from the bank shares for their expenses and that the dividends had been reported on their joint income-tax returns.

The husband's financial statement, dated December 31, 2014, indicated that his business interests in Swift Supply, Palustris, and Swift Brothers have a total value of $4,916,000. The husband initially testified that, to his knowledge, his financial statement was correct; however, he later testified that there had been an error in the valuation of the businesses. He did not proffer an alternative value, but he did testify that his shares in Swift Supply were indebted more than they were worth and that they have very little value because they are not marketable. He also testified that the total debt for Palustris and Swift Lumber, of which Palustris owned 50%, was $15,000,000. Bryan Parker, a certified public accountant who testified as the wife's expert witness, valued the husband's interest in the businesses at $4,423,000.

It is undisputed that the wife had never worked for Swift Supply. However, the wife testified that she had helped host social functions for the company, had traveled on business for the company, and had volunteered in the community to assist in raising the company's profile. She worked outside the home less than three years total during the parties' marriage. The wife testified that she had attempted to obtain a license to sell real estate during the pendency of the divorce action but that she had been unable to retain the information required to pass the test.

The wife testified that, during the marriage, the parties had traveled extensively and that she had had a weekly housekeeper and had used a lawn service. The wife testified that, at the time of the trial, her monthly expenses were $8,837.89. She included in those expenses $500 for investments and $500 for contributions to a Roth IRA. She testified that she will receive $1,300 per month in Social Security benefits once the husband attains the age of 66 years.

The husband valued the parties' "retirement accounts, investment accounts, annuities, IRAs, and other accounts" at $1,186,197. The husband's December 31, 2014, financial statement valued those accounts at $917,500. According to the husband, the lawn equipment and boats that were awarded to the husband in the divorce judgment, as amended, were valued at $17,885 and the Lillian house was valued at $687,000. The husband valued the Fairhope condo at $330,000, the Conecuh County property at $72,600, and the wife's Lexus automobile at $27,000.

The husband testified that he planned to retire when he turned 66 in May 2017. The husband testified that he did not want a divorce. The wife testified that the husband had had no interest in her during the last 10 years of the marriage. She testified that she had tried to save their marriage by going to counseling. According to the wife, the husband had attended counseling with her for a period but then had stopped. She testified that she felt that the husband had betrayed her trust by telling her that there was no budget for the Lillian house, which, according to the wife, had caused them to accumulate debt. She also testified that the husband had loaned Swift Supply money without her knowledge and against her wishes. The husband testified that he had had to loan Swift Supply money to keep the business afloat. He also testified that he had believed that the parties would sell their previous house for a...