W.D.G. v. K.S.G. (Appeal from Marion Circuit Court: DR-23-900024).

Rel: November 15, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2024-0223
_________________________

W.D.G.

v.

K.S.G.

Appeal from Marion Circuit Court
(DR-23-900024)

LEWIS, Judge.

W.D.G. ("the husband") appeals from a divorce judgment entered

by the Marion Circuit Court ("the trial court"). We affirm the judgment

in part, reverse the judgment in part, and remand the cause to the trial

court with instructions.
CL-2024-0223

Procedural History

On March 6, 2023, K.S.G. ("the wife") filed a complaint seeking a

divorce from the husband. The next day, the trial court entered an ex

parte status quo order. The husband filed an answer and a counterclaim

for a divorce on April 4, 2023. The wife thereafter filed a reply to the

counterclaim. On July 28, 2023, the wife filed a motion requesting that

the husband be held in contempt for violating the status quo order.

After a trial, the trial court entered a judgment on January 16,

2024, divorcing the parties based on the husband's adultery, dividing the

parties' property and debts, ordering the husband to pay alimony in

gross, and ordering the husband to pay a portion of the wife's attorney's

fees. On January 23, 2024, the trial court entered an order finding the

husband in contempt of court.

The husband filed a postjudgment motion on February 14, 2024.

That motion was denied on March 19, 2024. The husband filed his notice

of appeal to this court on March 26, 2024.

Discussion

On appeal, the husband argues: (1) that the trial court erred by

awarding the wife over 50% of the value of his retirement accounts; (2)

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that the trial court exceeded its discretion by awarding the wife

"substantially all of the marital assets"; (3) that the trial court erred by

awarding the wife alimony in gross in the amount of $200,000; and (4)

that the trial court's finding of adultery was not supported by sufficient

evidence. The husband's brief at 29. We address the husband's

arguments out of turn.

I.

We first consider whether the trial court's finding of adultery was

supported by sufficient evidence.

"When this court reviews a divorce judgment entered
after the presentation of ore tenus evidence, we presume that
the trial court's factual findings are correct, and we will
reverse a judgment based on those findings only if the
evidence does not support the judgment so as to render it
plainly and palpably wrong. Clements v. Clements, 990 So. 2d
383, 389 (Ala. Civ. App. 2007)."

Cauthen v. Cauthen, [Ms. CL-2023-0382, Sept. 27, 2024] ___ So. 3d ___,

___ (Ala. Civ. App. 2024).

"[I]t is the duty of the trial court, which had the opportunity
to observe the witnesses and their demeanors, and not the
appellate court, to make credibility determinations and to
weigh the evidence presented. Blackman v. Gray Rider Truck
Lines, Inc., 716 So. 2d 698, 700 (Ala. Civ. App. 1998). The role
of the appellate court is not to reweigh the evidence ...."

Ex parte Hayes, 70 So. 3d 1211, 1215 (Ala. 2011).

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The husband cites Rowe v. Rowe, 575 So. 2d 584, 587 (Ala. Civ. App.

1991), which explains the measure of proof required for a finding of

adultery as follows:

"The act of adultery may be proven by circumstantial
evidence, but more than a mere suspicion must be created. In
addition, the circumstances created must be 'such as would
lead the guarded discretion of a reasonable and just man to
conclude that the act of adultery has been committed,'
Billington v. Billington, 531 So. 2d 924 (Ala. Civ. App. 1988),
and 'to the conclusion of adultery as a necessary inference.'
Boldon v. Boldon, 354 So. 2d 275, 276 (Ala. Civ. App. 1978)
(quoted with approval in Maddox v. Maddox, 553 So. 2d 611,
612 (Ala. Civ .App. 1989))."

In the present case, the evidence indicated that the parties were

married in 1988. The wife testified that she thought that she and the

husband had a great marriage until October 2017, at which time the

husband became seriously ill. According to the wife and the parties'

daughter, the husband was hospitalized and diagnosed with AIDS. The

husband, on the other hand, testified that he was diagnosed with HIV,

not AIDS. According to the husband, during the parties' marriage, he

never voluntarily had sex with anyone other than the wife. He testified

that he had been raped on the side of the road in 2011 or 2012 but did not

tell the wife until after he became ill in 2017. According to the husband,

he did not report the rape to the police or go to the hospital. The husband

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testified that he initially believed that he had contracted HIV from the

rape; however, he stated that he later learned that he likely contracted

HIV from a blood transfusion during his illness. The trial court stated in

the judgment that it found the husband's testimony regarding the alleged

rape to be "totally unbelievable." The wife has been tested for HIV

numerous times since 2017, and she has tested negative each time.

The parties' daughter testified that, in 2019, she found an explicit

photograph on the husband's cellular telephone. She also saw text

messages between the husband and the other person, and she understood

the messages to be referencing a meeting between the two. The husband

admitted that the photograph was on his phone and that he had told the

person to call him. The husband, however, denied meeting the person.

The parties' daughter testified that she did not tell the wife about the

photograph or the text messages until years later.

The wife testified that the husband was often on his computer or

his cellular telephone late at night. She testified that he would hide what

he was looking at from her. According to the wife, she finally decided

that she could no longer stay in the marriage when the husband, once

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again, refused to show her what he was looking at on his cellular

telephone. The wife moved out of the parties' marital home in July 2022.

The husband cites the following cases in which this court held that

the evidence was insufficient for a finding of adultery: Fowler v. Fowler,

636 So. 2d 433 (Ala. Civ. App. 1994); Turner v. Turner, 210 So. 3d 603

(Ala. Civ. App. 2016); and Capone v. Capone, 962 So. 2d 835 (Ala. Civ.

App. 2006). In Fowler, this court held that the evidence was insufficient

to establish adultery when the only evidence was that the husband in

that case and his coworker had had numerous telephone conversations

and had "associate[d] outside of the office, that the parties' counselor

considered the relationship between the husband and his co-worker

inappropriate, that the husband had rejected his wife during the period

in which the telephone calls occurred, and that the marriage had

deteriorated." 636 So. 2d at 435-36. In Turner, this court held that

"[t]he mere fact that the [the wife in that case] was seen in a
public venue with [another man] and that she had engaged in
unexplained acts of 'secretness' as well as had frequently used
her cellular-telephone and text-messaging service to
communicate with unknown persons [did] not equate to
evidence of adulterous conduct."

210 So. 3d at 607. In Capone, this court held that there was insufficient

evidence of adultery when the evidence of adultery consisted of frequent

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telephone calls between the husband and another woman before the

parties separated and an overnight stay with that same woman after the

parties' separation. 962 So. 2d at 839.

We find the above cases to be distinguishable from this case. The

evidence in the present case does not consist of mere telephone calls and

in-person associations that could be either adulterous or platonic. Here,

there was undisputed evidence indicating that the husband was

diagnosed with either HIV or AIDS during the parties' marriage. The

husband claimed that he voluntarily had sex with only the wife but that

he had been raped years before his diagnosis. He also explained that he

believed that he contracted HIV from a blood transfusion during his

illness. The trial court, however, found that the husband's testimony was

not credible, and that determination was within the province of the trial

court to make. See Hayes, 70 So. 3d at 1215. There was also evidence

indicating that the husband's telephone contained explicit photographs

and text messages referring to a meeting between the husband and

another person. The husband also repeatedly hid his cellular telephone

and computer from the wife. Considering the evidence as a whole, the

trial court could have determined that the evidence in this case did not

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lend itself to a platonic explanation but, instead, necessarily implied that

the husband had committed adultery. See Rowe, 575 So. 2d at 587.

Therefore, we conclude that the trial court did not exceed its discretion

in divorcing the parties on the ground of adultery, and the judgment is

affirmed with respect to that finding.

II.

We next address whether the trial court erred by awarding the wife

over 50% of the value of the husband's retirement accounts. The trial

court's judgment awarded the wife "one hundred percent (100%) of the

Husband’s Perspective II IRA Annuity with Jackson National Life

Insurance Company." The trial court stated that "[i]t was represented to

the Court that said account has (at minimum) an accumulated value of

$286,270.65." The wife was also "awarded one hundred percent (100%)

of the Husband’s TD Ameritrade rollover IRA."

Section 30-2-51, Ala. Code 1975, provides, in pertinent part:

"(b)(1) The marital estate is subject to equitable division
and distribution. Unless the parties agree otherwise, and
except as otherwise provided by federal or state law, the
marital estate includes any interest, whether vested or
unvested, either spouse has acquired, received, accumulated,
or earned during the marriage in any and all individual, joint,
or group retirement benefits including, but not limited to, any
retirement plans, retirement accounts, pensions, profit-

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sharing plans, savings plans, annuities, or other similar
benefit plans from any kind of employment, including, but not
limited to, self employment, public or private employment,
and military employment.

"(2) Notwithstanding the foregoing, unless the parties
agree otherwise, the total amount of the retirement benefits
payable to the noncovered spouse shall not exceed 50 percent
of the retirement benefits that may be considered by the
court."

According to the wife, the husband had a Stone Wealth individual

retirement account ("IRA"). She testified that the last statement she saw

from that account indicated that the husband's account balance was

approximately $440,000. The wife testified that, in 2020, the husband

transferred $300,000 of those funds to a rollover IRA with Jackson

National Life Insurance. She stated that she did not know where the rest

of the funds were transferred. The husband confirmed that Stone Wealth

funds had been rolled over into the Jackson National Life Insurance IRA.

He testified that he deposited the remaining $100,000 into a TD

Ameritrade account owned jointly by him and the wife.

The husband also had an IRA with TD Ameritrade. He admitted

that he took distributions from the TD Ameritrade IRA in 2022 in the

amount of $82,200. According to the statements introduced into

evidence, those distributions were made before the parties' separation.

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CL-2024-0223

The evidence also indicated that the husband had withdrawn $99,500

from that IRA in 2021. The husband testified that every distribution

from the TD Ameritrade IRA had been deposited into the parties' joint

checking account with Wells Fargo. The most recent statement

introduced into evidence indicated that the TD Ameritrade IRA had been

depleted to $314.58 by May 2023.

Considering both IRAs, the husband's retirement accounts totaled

$286,585.23. The wife was awarded 100% of that amount, which is a

violation of § 30-2-51(b)(2). In the wife's brief to this court, she argues

that the trial court could have determined that the husband's transfer of

$300,000 into the Jackson National Life Insurance IRA was voidable.

She also argues that the trial court could have considered that the

husband withdrew $82,200 from the TD Ameritrade IRA in 2022. The

wife cites Thomas v. Thomas, 109 So. 3d 193, 196 (Ala. Civ. App. 2012),

in support of her argument. In Thomas, this court affirmed a trial court's

judgment awarding the wife in that case 50% of her husband's retirement

accounts even though the parties had not been married 10 years, which

was required for retirement accounts to be divisible under the version of

§ 30-2-51(b)(1) applicable at that time. This court noted that the trial

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court found that "the husband's having shifted over $90,000 of marital

assets from bank accounts titled in the names of dubious corporate

entities to various 'retirement' accounts after having had notice of the

wife's dissatisfaction with the marriage was an effort to hinder an

equitable property settlement upon dissolution of the marriage." 109 So.

3d at 198. The wife also cites Yohey v. Yohey, 890 So. 2d 160, 166 (Ala.

Civ. App. 2004), in which this court approved a trial court's decision to

award the wife in that case an additional sum to compensate her for

funds that had been removed from the parties' retirement accounts in

violation of pendente lite orders, and Jernigan v. Jernigan, 344 So. 2d

778, 780 (Ala. Civ. App. 1977), in which this court affirmed a trial court's

decision to void a transfer of money that the husband in that case had

made to the parties' daughter to keep the money from his wife.

We find the facts of the above-cited cases distinguishable from the

facts of the present case. Here, the husband did not shift assets from

nonretirement accounts into retirement accounts like was done in

Thomas, 109 So. 3d at 196. Instead, he rolled over one IRA into another

IRA, and, therefore, the character of the funds with respect to § 30-2-51

remained unchanged. With respect to the withdrawals of funds from the

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TD Ameritrade IRA, we note that those withdrawals were made before

the parties' separation, and the husband testified that the funds were

transferred to a joint account. The husband did not withdraw the funds

in violation of a pendente lite order, see Yohey, 890 So. 2d at 166, or

transfer those funds to a third party, see Jernigan, 344 So. 2d at 780.

Therefore, we cannot conclude that the circumstances in this case

justified the voiding of any transfers.

Because the trial court's division of the husband's retirement funds

violated § 30-2-51(b)(2), we reverse the trial court's judgment in part.

Because we are reversing the judgment with respect to the division of the

retirement funds, we pretermit consideration of the husband's other

arguments concerning the division of the property. See Stover v. Stover,

176 So. 3d 854, 863 (Ala. Civ. App. 2015). On remand, the trial "court is

instructed to reconsider the equities and to make an equitable division of

the parties' property." Id.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

WITH INSTRUCTIONS.

Edwards, Hanson, and Fridy, JJ., concur.

Moore, P.J., concurs in the result, without opinion.

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