Opinion
2200951
08-05-2022
Daryl Myrick v. Joyce Myrick
Appeal from St. Clair Circuit Court (DR-20-900177)
MOORE, JUDGE
Daryl Myrick ("the husband") appeals from a judgment entered by the St. Clair Circuit Court ("the trial court") divorcing him from Joyce Myrick ("the wife"). We reverse the trial court's judgment.
Procedural History
On June 29, 2020, the wife filed in the trial court a complaint seeking a divorce from the husband, as well as "an equitable division of all the personal property and other assets of the marriage" and periodic alimony. She also requested that the husband be ordered to pay the marital debts and her attorney's fees and costs. Finally, she requested "such other, further and different relief as the [wife] may be entitled." On July 10, 2020, the husband answered the wife's complaint and counterclaimed for a divorce. In his counterclaim, the husband sought a divorce, "a fair and equitable division of all property and debts incurred during the marriage by the parties," and "such other, further and general relief as to which in equity and good conscience he may be entitled." After a trial, the trial court entered a judgment on June 24, 2021, that, among other things, divorced the parties, awarded each party the personal property and bank accounts in his or her possession, ordered the husband "to pay the existing indebtedness owed to the Internal Revenue Service and/or United States Department of the Treasury and the indebtedness owed to Wells Fargo [due to the parties' personal line of credit]," and ordered each party to pay all remaining debts in his or her individual name. With regard to rehabilitative and periodic alimony, the judgment stated:
"10. The Court finds that [the wife's] separate estate is insufficient to enable her to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the [husband] has the ability to supply those means without undue economic hardship, and the circumstances of this case make it equitable that the [wife] be awarded rehabilitative and, at a future date, periodic alimony.
"11. The [husband] shall pay to the [wife], as rehabilitative alimony, the sum of ONE THOUSAND ONE HUNDRED and NO/100 DOLLARS ($1,100.00) per month.
"12. The Court further finds that it is equitable, and does hereby, reserve the right, power and authority to award periodic alimony in favor of the [wife] after the expiration of the said sixty-month period of time for which rehabilitative alimony has been awarded to the [wife] herein, upon the filing of a petition therefor, and proof of circumstances then existing which would justify such an award."(Capitalization in original.)
On June 25, 2021, the husband filed a postjudgment motion; that motion was denied on July 28, 2021. The husband filed his notice of appeal on August 25, 2021.
FACTS
The parties married in November 1988 and separated in 2017. The husband lives in North Carolina; according to the husband, the wife moved to Alabama in 2018. The husband testified that he had not provided any financial assistance to the wife since they separated. At the time of the trial, the husband was 55 years old and the wife was 57 years old.
The husband testified that he has diabetes, that he had suffered multiple infections in one of his feet, and that he had had to have part of that foot amputated. The wife testified that she had left the husband because he was not taking care of himself. According to the wife, the husband had defied the instructions of his medical doctors to stay off the foot. According to the wife, the issue with the husband's foot was the final straw when deciding whether to divorce the husband; she explained that the parties had had difficulties on and off since 2009.
The evidence indicated that the husband had been employed as a banker for Wells Fargo. The wife testified that he had earned over $100,000 per year in 2009, 2010, and 2011. According to the husband, toward the end of 2012, he lost his job at Wells Fargo. He testified that he had been able to obtain another job within the company, but, he said, his annual salary had decreased to $50,000. He testified that he had subsequently found a job at Suntrust Bank earning $65,000 a year but that he had returned to work for Wells Fargo in 2013. According to the husband, the wife earned $30,000 per year during the marriage. Both parties testified that they had had financial difficulties during the marriage. The wife testified that, around the time that the husband's income had decreased, their expenses had increased. The husband testified that, around 2012 and 2013, the parties' monthly bills had included $2,000 for the mortgage on the marital residence, $600 for health insurance, $500 for automobile insurance, $500 for heating and cooling the marital residence, and $200-$300 for water service to the marital residence. The husband testified that he had been paying the monthly mortgage payments on the parties' marital residence, as well as the monthly payments for health insurance and automobile insurance and groceries. He testified that the wife had paid the payment on the loan for her automobile and the utility bills. He testified that, after his salary decreased, he had asked the wife to help him pay his portion of the monthly bills but that she had been unable to do so. The wife, on the other hand, testified that the parties had swapped back and forth on who paid the mortgage and who paid the smaller bills. The wife testified that the parties' financial difficulties had been so severe that the utilities to the marital residence had been cut off due to nonpayment. The wife testified that the parties had had to sell the marital residence to avoid foreclosure.
The husband testified that, during the 2012-2013 period, he had made withdrawals from his 401k retirement account to cover the parties' bills. He testified that he had informed the wife that he was doing so; however, the wife testified that she had not found out that the husband had made those withdrawals until the parties had filed their income-tax returns. According to the husband, at the time of the trial, the parties owed $26,000 to the Internal Revenue Service ("the IRS") as a result of those withdrawals. The husband testified that he could not afford to pay the tax debt. The wife testified that the IRS had already withheld $9,700 from her income-tax refunds to satisfy the tax debt. She testified that the husband had paid approximately $5,700 toward the tax debt. The parties also had a personal line of credit with Wells Fargo with an approximate outstanding balance of $5,000 at the time of trial. The wife testified that the husband had taken out that line of credit without her knowledge.
The husband testified that he had ceased working in January 2021. He testified that, at the time of the trial, he was unable to work as a result of his medical condition. He testified that he receives Social Security disability benefits and disability-insurance benefits that total approximately $3,700 per month. According to the husband, after paying all of his expenses, including $700 to his mother for rent, he is left with $1,400 every month.
The husband testified that he currently owes thousands of dollars in medical bills. According to the husband, he should be paying $500 per month toward those bills, but, he said, he cannot afford to do so.
The wife testified that she earns $67,000 per year as a teacher in Georgia. She testified that her take-home pay, after paying for health insurance, is $3,400 per month. According to the wife, her permanent residence is a "family home" in Springville, Alabama. She testified that she rents an apartment in Georgia because she works there and that she pays $790 per month in rent for that apartment. She testified that she pays for utilities, maintenance, and a tenant's insurance policy on her Alabama home. The wife testified that her monthly expenses in addition to rent are $264 for automobile insurance, $25 for life insurance, $20 for a cancer-insurance policy, $80 for electricity, $40 for a telephone line in Alabama, $15 for garbage service and maintenance at the Alabama house, $300 for a cellular-telephone bill (which includes service for her adult children), $40 for water, $35 for Internet service, $400 for groceries, and $200 for gas. The wife testified that she pays $600 per month for room and board for her adult daughter who is in college, $600 per month toward the balance owed on loans she took out for her adult children to go to college, and $500 toward charitable donations. She also testified that she pays $200 toward credit-card debt and that, at the time of trial, she was paying $180 toward the balance owed on the line of credit. According to the wife, her total monthly expenses are approximately $4,200 per month; she testified that she wanted to be awarded $1,500 per month in alimony until she retires in 9 years.
The wife testified that she has $8,000 in her pension account. The husband testified he had completely drained his 401k retirement account, which, he said, had had a balance of approximately $100,000.
Discussion
I. Jurisdiction
On appeal, the husband challenges the trial court's award of rehabilitative alimony, the reservation of the right to award periodic alimony, and the requirement that he pay the existing indebtedness owed to the IRS. Initially, however, we must address whether, considering § 30-2-5, Ala. Code 1975, the trial court had jurisdiction to enter the divorce judgment. We asked the parties to submit letter briefs on the issue of jurisdiction, and both parties submitted briefs.
"Section 30-2-5[, Ala. Code 1975,] provides that, '[w]hen the defendant [in a divorce action] is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved.' 'If the residency requirements set forth in § 30-2-5 are not met, the trial court lacks jurisdiction over the divorce action.' Alsaikhan v. Alakel, 173 So.3d 925, 927 (Ala. Civ.App. 2015).
'The parties cannot by agreement confer jurisdiction.' Hilley v. Hilley, 275 Ala. 617, 619, 157 So.2d 215, 218 (1963).
"'It is well settled that, for the purposes of § 30-2-5, residence is equivalent to domicile. Ex parte Ferguson, 15 So.3d 520, 522 (Ala. Civ. App. 2008); Skieff v. Cole-Skieff 884 So.2d 880, 883 (Ala. Civ. App. 2003); Livermore v. Livermore, 822 So.2d 437, 442 (Ala. Civ. App. 2001); and Webster v. Webster, 517 So.2d 5, 7 (Ala. Civ. App. 1987).
"'"'"Domicile is defined as residence at a particular place accompanied by an intention to stay there permanently, or for an indefinite length of time." Nora v. Nora, 494 So.2d 16, 17 (Ala. 1986). A person's domicile continues until a new one is acquired. Id.'"
"'Ex parte Ferguson, 15 So.3d at 522 (quoting Fuller v. Fuller, 991 So.2d 285, 290 (Ala. Civ. App. 2008)). Black's Law Dictionary 592 (10th ed. 2014) defines "domicile" as "[t]he place at which a person has been physically present and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere." This court has noted that when a person lives in one location, his or her intent to return to another location is of primary importance in determining the issue of the person's domicile. Livermore v. Livermore, 822 So.2d at 442 (citing Andrews v. Andrews, 697 So.2d 54, 56 (Ala. Civ. App. 1997), and Jacobs v. Ryals, 401 So.2d 776, 778 (Ala. 1981)).
"'With regard to principles governing the concept of domicile, our supreme court has stated:
"'"'[A] domicile, once acquired, is presumed to exist until a new one has been gained "facto et animo" ....And in order to displace the former, original domicile by the acquisition of one of choice, actual residence and intent to remain at the new one must concur. "Domicile of choice is entirely a question of residence and intention, or, as it is frequently put, of factum and animus." ...
"'"'A change of domicile cannot be inferred from an absence, temporary in character, and attended with the requisite intention to return. To the fact of residence in the new locality there must be the added element of the animus manendi before it can be said that the former domicile has been abandoned. The intention to return is usually of controlling importance in the determination of the whole question....
"'"'... As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact....
"'"'One who asserts a change of domicile has the burden of establishing it.... And "where facts are conflicting, the presumption is strongly in favor of an original, or former domicile, as against an acquired one," etc....'"
"'Jacobs v. Ryals, 401 So.2d at 778 (quoting Ex parte Weissinger, 247 Ala. 113, 117, 22 So.2d 510, 513-14 (1945)).'
"Alsaikhan, 173 So.3d at 928."Weith v. Weith, 263 So.3d 715, 718-19 (Ala. Civ. App. 2018).
In the present case, because the husband, the defendant in the divorce action, is not a resident of Alabama, the evidence must show that the wife was "a bona fide resident of this state for six months next before the filing of the complaint," § 30-2-5, for the trial court to have jurisdiction to divorce the parties. In other words, the wife must show that her domicile was Alabama for the six months leading up to the filing of the divorce complaint.
The evidence concerning the wife's domicile indicates the following. The wife moved to Alabama in 2018, after she and the husband separated. The wife testified that she has a permanent residence at a "family home" in Alabama that she maintains but that, because she works in Georgia, she rents an apartment in Georgia. She testified that she plans to retire in nine years and return to live in Alabama. According to the wife, she spends holidays in Alabama and travels to Alabama at least twice monthly during the summer. As we previously noted, "[a] change of domicile cannot be inferred from an absence, temporary in character, and attended with the requisite intention to return"; "[t]he intention to return is usually of controlling importance in the determination of the whole question...." Weith, 263 So.3d at 718-19. In the present case, the trial court could have concluded that the wife's continuing to maintain her "family home" in Alabama while also renting an apartment in Georgia so that she could work there until she retires in nine years is indicative of an intent on the part of the wife to return to her "permanent" home in Alabama. Therefore, we hold that the trial court had jurisdiction over the divorce action. We now turn to the merits of the husband's arguments.
II. Alimony
We first address the husband's argument that the trial court erred in awarding the wife rehabilitative alimony and in reserving the right to award periodic alimony.
"'Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala. Civ. App. 1995). Furthermore, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Golden v. Golden, 681 So.2d 605 (Ala. Civ. App. 1996). In addition, the trial court can consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility. Ex parte Drummond, 785 So.2d 358 (Ala. 2000). Moreover, in Kluever v. Kluever, 656 So.2d 887 (Ala. Civ. App. 1995), this court stated, "[a]lthough this court is not permitted to substitute its judgment for that of the trial court, this court is permitted to review and revise the trial court's judgment upon an abuse of discretion." Id. at 889.'
"Langley v. Langley, 895 So.2d 971, 973 (Ala. Civ. App. 2003). 'Trial judges enjoy broad discretion in divorce cases, and their decisions are to be overturned on appeal only when they are "unsupported by the evidence or [are] otherwise palpably
wrong."' Ex parte Bland, 796 So.2d 340, 344 (Ala. 2000) (quoting Ex parte Jackson, 567 So.2d 867, 868 (Ala. 1990))."Cottom v. Cottom, 275 So.3d 1158, 1163 (Ala. Civ. App. 2018).
The husband argues that the wife did not prove that she needed alimony to preserve the lifestyle that the parties had lived during the marriage and that he lacks the ability to pay the wife alimony. We first address the issue whether the wife proved a need for alimony.
Section 30-2-57, Ala. Code 1975, provides, in pertinent part:
"(a) Upon granting a divorce or legal separation, the court shall award either rehabilitative or periodic alimony as provided in subsection (b), if the court expressly finds all of the following:
"(1) A party lacks a separate estate or his or her separate estate is insufficient to enable the party to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage.
"(2) The other party has the ability to supply those means without undue economic hardship.
"(3) The circumstances of the case make it equitable. ....
"(c) In cases in which a party has proven a lack of means to acquire the ability to preserve, to the extent possible, the
economic status quo of the parties as it existed during the marriage, but there exists a present inability of the other party to supply those means, a court, when the circumstances of the case make it equitable, shall reserve jurisdiction to award rehabilitative or periodic alimony....
"(d) In determining whether a party has a sufficient separate estate to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall consider any and all relevant evidence, including all of the following:
"(1) The party's own individual assets.
"(2) The marital property received by or awarded to the party.
"(3) The liabilities of the party following the distribution of marital property.
"(4) The party's own wage-earning capacity, taking into account the age, health, education, and work experience of the party as well as the prevailing economic conditions.
"(5) Any benefits that will assist the party in obtaining and maintaining gainful employment.
"(6) That the party has primary physical custody of a child of the marriage whose condition or circumstances make it appropriate that the party not be required to seek employment outside the home.
"(7) Any other factor the court deems equitable under the circumstances of the case."
In the present case, the undisputed evidence indicated that the parties had struggled financially during their marriage, to the point that the utilities for the marital residence had been turned off at times due to nonpayment and that, eventually, the parties had had to sell the marital residence to avoid a foreclosure. The husband testified that, after his salary reduction in 2012, he had found a job earning $65,000 a year and that the wife had earned approximately $30,000 a year during the parties' marriage. The parties had three children to support during the marriage. At the time of the trial, however, the parties' children had all attained the age of majority, and the wife had obtained a teaching job earning $67,000 per year. The wife maintains her permanent home in Alabama while also renting an apartment in Georgia. Although, according to the wife's testimony, she has a monthly budget deficit of $800, she testified that she spends $600 per month for room and board for her adult daughter, $600 per month on loans that she took out for college expenses for her adult children, and $500 per month on charitable donations. Her adult children's cellular-telephone expenses are also included in the wife's monthly cellular-telephone bill.
"The wife's expenditures for [her adult children] are gratuitous undertakings of the wife that the husband may not be held responsible for through the payment of alimony to offset those expenditures. To allow a trial court to consider expenditures of that nature in fashioning its alimony award would permit, in essence, a trial court to require a parent to pay the living expenses of an adult child in contravention of the law."Sosebee v. Sosebee, 896 So.2d 557, 562 (Ala. Civ. App. 2004).
We conclude that the evidence fails to show that the wife "lacks a separate estate or [that] ... her separate estate is insufficient to enable [her] to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage," § 30-2-57, such that an award of rehabilitative alimony or a reservation of the right to award periodic alimony is warranted. The evidence indicates that the parties had difficulties during their marriage managing even basic bills. At the time of the trial, however, the wife was earning a salary sufficient to pay her monthly bills, to maintain two homes, and to undertake certain gratuitous expenses. Because there was insufficient evidence to support the requisite finding that the wife "lacks a separate estate or ... [that] her separate estate is insufficient to enable [her] to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage," id., we conclude that the trial court erred in awarding the wife rehabilitative alimony and in reserving the right to award periodic alimony.
III. The IRS Debt
The husband also argues that the trial court erred in requiring him to pay the entire debt owed by the parties to the IRS. As we noted previously, "'[m]atters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues.'" Cottom, 275 So.3d at 1163 (quoting Langley v. Langley, 895 So.2d 971, 973 (Ala. Civ. App. 2003)). In Sumerlin v. Sumerlin, 964 So.2d 47, 50 (Ala. Civ. App. 2007), this court noted that, because it was reversing the trial court's judgment to the extent that it had awarded the wife a portion of the husband's retirement benefits, it "must also reverse the trial court's judgment as to the property division and alimony award in its entirety." This court stated that, "[u]pon remand, the trial court may adjust those awards so as to create an equitable property division between the parties." Id. Similarly, in the present case, this court is reversing the divorce judgment to the extent that it awarded the wife rehabilitative alimony. Therefore, we "must also reverse the trial court's judgment as to the property division and alimony award in its entirety." Id. We therefore pretermit discussion of the husband's argument regarding the allocation of the debt to the IRS.
Conclusion
Based on the foregoing, we reverse the trial court's judgment to the extent that it awarded the wife rehabilitative alimony, reserved the right to award the wife periodic alimony, and divided the parties' property. Upon remand, the trial court should enter an equitable judgment on those issues in accordance with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.