PERRY v. PERRY (2026)

Lisa Marie Perry (“the wife”) appeals from a judgment of the Baldwin Circuit Court (“the trial court”) divorcing her from Donald Lloyd Perry (“the husband”), dividing the parties’ marital property, and awarding her periodic alimony. For the reasons set forth herein, we affirm the judgment in part, reverse it in part, and remand the cause for the entry of a new judgment.

Background

The wife commenced an action for a divorce on January 10, 2020, alleging incompatible temperaments and irreconcilable differences “brought about by the [husband's] long term adulterous relationship with [P.C.].” The trial court held a trial over numerous days from January 2021 through November 2024.

Evidence presented at the trial showed that the husband and the wife married in May 1986, just as the husband graduated from high school and the year after the wife had graduated from high school. When the parties married, they lived with the husband's mother in Columbus, Georgia. At that time, the wife said, she worked at her father's laundromat. The husband joined the United States Army and retired as a first sergeant twenty-five years later, in 2011. They had three children, all of whom were adults at the time of the trial. The wife was fifty-three years old at the start of the trial in 2021; the husband is seven months younger than the wife.

During most of his Army career, the husband worked in explosive-ordnance disposal. When he retired from the Army, the husband continued to work removing explosives from land, moving around the country and working with different civilian companies. The husband and the wife sold the house they owned in Colorado and bought a fifth-wheel recreational vehicle (“the RV”) so that they could live together while the husband worked in those different locations, including Indiana and Virginia.

In 2014, the parties purchased the marital residence in Baldwin County for $345,000. The marital residence included five acres and three outbuildings, where the parties’ adult sons sometimes lived. The parties financed the entire cost of the residence, and, on the first day of the trial in 2021, the wife testified that they still owed about $326,000 to $328,000 on the residence.

The wife testified that she believed that the husband was having an affair with P.C., the wife of his friend G.C., whom he had met while in a military ordnance-disposal school in the early 1990s. The wife said that she believed that the first time the husband met P.C. was when the parties lived in Indiana in about 2012.

The wife said that, in 2015, after the parties had bought the marital residence, the husband worked in Virginia and lived in the RV. She said that, at first, the husband would regularly come home to Baldwin County or that she would visit him in Virginia. The wife testified that, in 2015, she visited the house of P.C. and G.C. in Maryland. She said that the husband had a bedroom in P.C. and G.C.’s house and that she had seen that he kept his hobby airplanes and drones in that bedroom. Once he had that bedroom to stay in, the wife said, the husband came home less frequently. P.C. testified that it was a forty-five-minute drive from where the husband was working in Quantico, Virginia, to her house in Maryland. P.C. said that she had invited the wife to stay with them if she wished.

In 2017, the husband began working for a company called TetraTech in Hanover, Massachusetts, near Boston. Although TetraTech would purchase a plane ticket monthly for the husband to visit home or for the wife to visit him in Boston, the wife said that he rarely used the tickets to come home and instead visited P.C. and G.C. in Maryland, which, she said, caused “strife,” “a lot of friction,” and “a lot of hurt feelings.”

The wife presented voluminous documents, including telephone records and credit-card records, that she said showed that the husband and P.C. engaged in frequent, lengthy telephone conversations and text messaging and that they often attended concerts and ate out when they were together. She testified regarding certain receipts showing charges that the husband had made at various stores in Maryland and the purchase of plane tickets he had made for one person on a number of flights from Baltimore to Boston. The wife testified that she believed that the receipts and the telephone calls were evidence of an ongoing affair between the husband and P.C. She said that she had calculated that, since 2016 or 2017, the husband had spent $48,040 on P.C., and she asked the trial court to award her half of that amount.

The husband denied that he was having an affair with P.C. or that he had ever had sexual relations or any romantic involvement with her. He acknowledged that the wife had become angry with him and had told him he was to “stop hanging out with the [C.] family,” to stop talking to P.C., and to stop going to concerts. He said that she had told him that if he did not stop going to concerts, they were “through.”

The husband testified that the money the wife believed that he had spent on P.C. was money he had spent on himself when he worked in Quantico, Virginia, which, he said, is just across the border from Maryland. The husband explained that, when he worked at Quantico, he used his credit card for all of his expenses and then paid the balance off with the money he received as a per diem. He said that he had purchased meals or drinks for the C. family, adding that “there's a reciprocity there.” He said that if he purchased concert tickets for P.C., she paid him back.

P.C. testified that the husband was one of her best friends and a friend of her husband, G.C., that her children saw him as an uncle, and that she had not had sex with the husband. She explained that the husband had been to their house in Maryland numerous times, that she and G.C. had spent Thanksgiving with the parties at the marital residence in Baldwin County, and that the parties had spent Christmas with them. During the COVID-19 pandemic, she said, the husband lived with them. She acknowledged that the husband would call their house, sometimes multiple times a day, and talk not only with her but also with G.C., their children, and friends of their children whom the husband knew. G.C. corroborated P.C.’s testimony regarding the telephone calls.

During her testimony, photographs from Facebook were shown to P.C. Those photographs depicted her with the husband and with other people during various events, including concerts and family events. P.C. said that she had been to Boston and had seen the husband several times while she was there, explaining that she was from Boston and still had family there. P.C. explained that the husband would sometimes purchase airline tickets for her to travel to Boston because he wanted credit-card-reward points and that she would pay him back.

G.C. testified that he had known the husband for more than thirty years. He described the husband as a part of the family and testified that his children thought of the husband as an uncle. He said that the husband would come to their house when he had a school break or a break in jobs, explaining that it “seemed silly to have him stay in a hotel.” G.C. testified that he did not believe that the husband and P.C. had ever had a sexual relationship and that he had seen no signs of “romantic goings on” between them. He also said that, when P.C. and the husband went to concerts, they were part of a group. He also explained that he usually did not attend the concerts because he has Parkinson's disease, which, he said, makes it difficult for him to get around, so going to concerts was “not [his] thing.”

The evidence indicated that the husband had been the primary wage earner throughout the marriage. The wife testified that she prepared the parties’ income-tax returns during the marriage and that the husband's taxable income while working for his civilian employers was between $65,000 and $120,000 annually. The husband earned gross military-retirement benefits of $3,331 per month and received veterans’ disability benefits of $3,279 per month. At first, the wife said, the husband had been found 80% disabled, but, by the time of the trial, he was considered 100% disabled.

The husband lived in Roxbury, Massachusetts, at the time of the trial. He testified that he was in school full time studying to become a nurse. He said that he was “furloughed” from his job at TetraTech in August 2019 because of what he said was a “hostile work environment.” He said that he did not apply for other jobs because he was suicidal at that time. At the time of trial, he said, he believed that his mental status had improved so that he could do explosives-disposal work again, but he stated that, physically, he was unable to do the job anymore and referred to his 100% disability rating.

The husband testified that he began school at Bunker Hill Community College in September 2019 and that the federal government paid for his education. He explained that the government paid him about $3,000 per month more to go to school in Massachusetts than it would for him to stay in Alabama, where his retirement benefits and school money would not “touch what our bills [were] going to be.” The husband said that, initially, he studied fire science for about six months with the hope of becoming a firefighter, but that he “got shot down for that,” apparently because of the physical demands of the job. He said that he then tried to be an EMT but that he had left the program about halfway through after learning how little that job paid. At the time of the trial, the husband said, he was studying nursing in Boston. He testified that he received about $3,000 per month when he was in school.

The husband testified that he was part of a class-action lawsuit involving what he said were faulty ear plugs that he had used while in the military that caused his disability. The husband said that he understood that the action had settled, but he did not know specific details of the settlement.

The wife testified that she had finished high school, had completed a certified-nursing-assistant (“CNA”) course that permitted her to be a nurse's aide, and had completed three college courses. During the husband's Army career, the wife said, she worked at restaurants, as a CNA, as a “babysitter” at a nursing home, and for Walmart and H&R Block, for which she did seasonal work in 2020, earning $4,865. Most of the jobs paid minimum wage, the wife said, but she was able to work her way up to management positions at a fast-food restaurant and for Walmart. At the time of the trial, the wife worked at a Publix supermarket, earning $14.75 or $15 per hour. She said that she worked roughly forty hours per week. The wife testified that, from January 1 through September 24, 2021, she had earned $23,990 working full time for Publix. However, on the last day of the trial in November 2024, the wife testified that she no longer worked for Publix because she had had issues with her back and her wrist and Publix could no longer make accommodations for her. She said that she applied for Social Security disability benefits in May 2024 but that she had not yet received any notice as to whether her application had been accepted or rejected.

The wife said that from three of the jobs she had held during the marriage, including her job for Publix, she had been able to put money into retirement accounts. She said that the Publix retirement account was the only one she still had, and she believed that she had about $2,000 in that account. She said that she did not put money into one of the accounts for which she was eligible; the other account had been cashed out and the money deposited into the parties’ joint account, she said.

The marital residence was the parties’ largest marital asset. The husband testified that, in September 2023, the parties owed $284,882 on the loan they took out to purchase the marital residence. The most current tax assessment indicated that the marital residence had a value of $649,700. The husband testified that he believed that the marital residence had a value of $726,000.

The parties also had several vehicles. At the time of the trial, the husband drove a 2017 Toyota Tundra pickup truck on which $3,963 was owed as of August 2023. He estimated that vehicle's value at $26,450; the wife estimated its value at between $18,000 and $20,000. The wife drove a 2010 or 2011 Prius automobile that she valued at $2,000; the husband estimated its value at $6,000. The parties also had a 2013 Chevrolet Silverado pickup truck that the wife estimated had a value of $30,000 and the husband estimated had a value of $16,050. The wife estimated the value of the RV at between $20,000 and $26,000; the husband estimated its value at $20,000 or less, adding that, as of August 16, 2023, $20,563 was still owed on it. The husband had a Harley Davidson motorcycle that he said had a value of about $16,000.

At the time of the trial, the parties owned two boats -- a 1997 Sea Ark, which was worth about $2,000 according to the wife and $3,565 according to the husband, and a 2008 Sea Doo, which the husband said had a value of $16,210 and the wife said had a value of between $4,000 and $5,000. The husband had purchased a 32-foot cabin motorboat to live on in Boston. He said that he had paid roughly $16,000 for it but that he had to pay $3,000 to have it destroyed.¹ The parties also owned a covered trailer worth between $2,300 and $3,500 and a flat utility trailer that the wife said was worth about $100.

The parties had numerous banking accounts and investment accounts. Because of the length of time between the first day of the trial in January 2021 and the last day of the trial in November 2024, the amount in any given account at the time the judgment was entered is difficult to pinpoint. The parties also had personal items, including tools, silver bars and coins, firearms, and remote-controlled airplanes, drones, and cars.

On February 27, 2025, the trial court entered a judgment divorcing the parties on the grounds of incompatibility and irreconcilable differences, “with no fault on either side.” The trial court directed the parties to sell the marital residence as soon as possible and to divide the proceeds derived from the sale equally. The trial court required the husband to pay the mortgage and escrow costs until the marital residence was sold. In addition, the trial court awarded each party any account held in his or her name and awarded the wife all joint accounts. The trial court awarded the husband the vehicles and any boats in his possession, namely, the Toyota Tundra truck and the Harley Davidson motorcycle, and it awarded the wife the vehicles in her possession. The trial court provided that the wife could sell any of those vehicles to pay bills, if she chose to do so. Regarding personal items, the trial court awarded the husband two Craftsman toolboxes, as well as the tools in his possession. The trial court ordered the parties to divide the silver collection, with the wife having the first pick and then alternating picks thereafter.

The trial court ordered that the husband's military-retirement benefits and any subsequent COLA increases were to be divided equally. The judgment provided that “[t]he remainder of the accounts will be awarded to the person who earned the money in it.” The trial court also ordered each party to be responsible for paying any credit cards in his or her name. Finally, the trial court awarded the wife $3,000 per month in periodic alimony and gave the husband credit for the amount the wife will receive in military-retirement benefits toward the $3,000. The trial court ordered the husband to pay the cost of the survivor-benefit plan for the wife.

Both parties filed motions to alter, amend, or vacate the judgment. On April 24, 2025, after a hearing on the motions, the trial court entered an amended divorce judgment that ordered the parties to cooperate when completing documents related to the division of the husband's military-retirement benefits and retained jurisdiction to enter any orders necessary to enforce and effectuate the division of those benefits. The wife filed a timely appeal from the amended divorce judgment.

Standard of Review

When this court reviews a divorce judgment entered after the presentation of ore tenus evidence, we will presume that the trial court's findings on disputed facts are correct, and we will not reverse its judgment based on those findings unless the judgment is palpably erroneous or manifestly unjust. Crenshaw v. Crenshaw, 386 So. 3d 42, 51 (Ala. Civ. App. 2023). The presumption of correctness of factual findings under the ore tenus rule “is based on the trial court's unique position to observe the witnesses and to assess their demeanor and credibility.” Glazner v. Glazner, 807 So. 2d 555, 559 (Ala. Civ. App. 2001). “[T]he ore tenus standard of review has no application to a trial court's conclusions of law or its application of law to the facts; a trial court's ruling on a question of law carries no presumption of correctness on appeal.” Ex parte J.E., 1 So. 3d 1002, 1008 (Ala. 2008) (citing Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994)).

Analysis

The wife first contends that the trial court erred by not granting the divorce on the ground of the husband's adultery and by failing to divide the marital assets in light of that alleged adultery.

“For purposes of divorce, adultery is voluntary sexual intercourse of a married man or woman with a person other than the offender's wife or husband. Rowe v. Rowe, 575 So. 2d 584, 586 (Ala. Civ. App. 1991).” Ex parte Grimmett, 358 So. 3d 391, 394 (Ala. 2022). In Grimmett, our supreme court observed that “adultery is rarely capable of direct proof but that caution is warranted when evaluating circumstantial evidence of adultery” and explained:

“ ‘It is a fundamental principle of the law of divorce that direct proof of adultery by evidence of eyewitnesses is not required, for, on account of the secret nature of the act, it is seldom susceptible of proof except by circumstantial evidence. However, its stigma is so degrading and humiliating and its legal consequences so serious, that the courts should never accept as sufficient proof of the commission of the act of adultery anything less than circumstances such as would lead the guarded discretion of a reasonable and just man to the conclusion that the act of adultery has been committed.’

“Rudicell v. Rudicell, 262 Ala. 41, 44, 77 So. 2d 339, 342 (1955). ‘[T]he proof must be such as to create more than a mere suspicion, but be sufficient to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.’ Maddox v. Maddox, 281 Ala. 209, 212, 201 So. 2d 47, 49 (1967).”

358 So. 3d at 394-95.

The Grimmett court discussed two cases, Hilley v. Hilley, 275 Ala. 617, 157 So. 2d 215 (1963), and Maddox v. Maddox, 281 Ala. 209, 201 So. 2d 47 (1967), in which the evidence presented had been determined to be insufficient to prove adultery. In Hilley, the evidence indicated that the wife had visited with her alleged paramour while on a “pleasure trip” with her teenaged children, during which the wife called her husband and sought permission to have the children fly back home. 275 Ala. at 621, 157 So. 2d at 219. In determining that the evidence was insufficient to sustain a finding of adultery, the Hilley court acknowledged that, while the wife and the alleged paramour visited one another at a particular time, “[w]e have searched the record diligently and we fail to find any evidence that during these visits [the wife and the alleged paramour] were having sex relationships.” Id. The court added that “how they enjoyed their visit with each other is purely speculative and conjectural. Proof of sexual intercourse necessary to the crime of unlawful cohabitation may be made by circumstantial evidence, but it must go beyond mere proof of opportunity. 1 Amer. Jur., Adultery, § 54.” 275 Ala. at 621, 157 So. 2d at 220.

In Maddox, a witness testified that he saw the wife in that case stop her car at a place where a man was already stopped. 281 Ala. at 212, 201 So. 2d at 49. Both the wife and the man drove to a different town, then traveled together in one car to yet another town, where they entered a motel. Id. When the witness drove past the motel about an hour later, the car was still there. Id. Again, our supreme court found that the evidence was insufficient to support a finding of adultery. 281 Ala. at 213, 201 So. 2d at 50.

In Fowler v. Fowler, 636 So. 2d 433, 435-36 (Ala. Civ. App. 1994), a case factually similar to this case, this court found the evidence insufficient to support a finding of adultery. There, among other things, the husband had made almost-daily lengthy telephone calls to his alleged paramour, including calls at unusual times and from public telephones, calls while he was on business out of state, calls from his lake cabin, and calls while attending an out-of-state football game with the wife. Fowler, 636 So. 2d at 435. In addition, the husband's alleged paramour had visited both the husband's lake cabin and the marital residence, and the husband had visited the alleged paramour's apartment three times. Id. The husband had given his alleged paramour flowers and a gift, and he had shunned the wife. Id.

Here, there was evidence indicating that, although the husband made numerous lengthy telephone calls to P.C., during those calls he also talked to P.C.’s husband and children, to whom he was “like family,” and to other people he knew in P.C.’s home. When the husband visited P.C. at her home, her husband, her children, and other people were also present, and, when the husband and P.C. went to concerts or had meals together, they went as part of a larger group. The husband and P.C. testified that they were not sexually or romantically involved, and P.C.’s husband testified that he did not believe that the two were having an affair. Other evidence indicated that the credit-card purchases that the husband made on behalf of P.C. were made so that he could obtain credit-card-reward points and that P.C. had reimbursed him for those payments. The husband explained that credit-card purchases made in Maryland, where P.C. lived, were for his living expenses while he lived and worked in Quantico, Virginia, just over the Maryland state line, and that he had paid for those expenses using the per diem he received through his employment. Although the evidence also indicated that the husband and the wife rarely saw each other and that the husband spent more time with P.C. and her family, the trial-court judge, who observed the parties and witnesses and was thus in a position to judge their credibility, reasonably could have believed that, while the husband and P.C. were good friends, they were not having an affair and had not engaged in sexual intercourse. In other words, the trial-court judge could have believed that the evidence failed to create more than a mere suspicion of adulterous conduct between the husband and P.C. and failed to lead to the “conclusion of adultery as a necessary inference.” Maddox, 281 Ala. at 212, 201 So. 2d at 49.

Based on the record before us and applying the precedent discussed, we cannot conclude that the trial court erred in failing to divorce the parties on the ground of the husband's adultery and, instead, granting the parties a divorce on the grounds of incompatibility and irreconcilable differences, without assigning fault to either party. As a result, we cannot conclude that the trial court erred when it did not consider the husband's alleged adultery when dividing the marital property.

The wife next contends more generally that the trial court's division of the marital property was inequitable and that its award of alimony to her was not reasonable. She argues that the evidence showed that the husband earned a significant monthly income and that she was unemployed and unable to work. She argues that she had “credibly testified as to her need for permanent alimony of $3,500 plus $667 in rehabilitative alimony” and that the trial court had erred in requiring that the marital residence be sold, thus requiring her to move from it, while not ordering the husband to pay her sufficient alimony to sustain her standard of living. She argues that the trial court's award effectively left her with total monthly income of $3,000 and left the husband, who, she says, is at fault for the divorce, with monthly income of $17,000 after his payment of alimony to her. The wife argues that the trial court's division of the marital property was not equitable because it failed to require that the husband continue his life insurance naming her as the beneficiary, it did not award her any portion of retroactive pay the husband had received during the course of the trial,² it failed to award her a portion of the settlement funds she claims the husband will receive from a class-action lawsuit, it failed to award her an amount equal to what she said the husband had spent on P.C., and it did not award her one of the parties’ two toolboxes.

In the judgment, the trial court awarded the wife periodic alimony of $3,000 per month and wrote that it would credit toward that amount the amount that the wife will be receiving under the judgment in military-retirement benefits. However, in making its award of alimony, the trial court did not make the express findings required by § 30-2-57(a), Ala. Code 1975, which provides:

“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.”

Discussing the application of § 30-2-57, this court has written: “The legislature has clearly required that an alimony award be either rehabilitative alimony or periodic alimony and that, to award either type of alimony, the trial court must make certain express findings after considering the various factors described in § 30-2-57(d)-(f).” Merrick v. Merrick, 352 So. 3d 770, 775 (Ala. Civ. App. 2021).

“Those requirements include findings as to those matters discussed in § 30-2-57(a), Ala. Code 1975, and, if a periodic-alimony award is to be made, a finding ‘that rehabilitative alimony is not feasible,’ § 30-2-57(b)(1), Ala. Code 1975, based upon the trial court's consideration of the various factors described in § 30-2-57(d) & (f), Ala. Code 1975.”

Lopez v. Rodriguez, 379 So. 3d 455, 461 (Ala. Civ. App. 2023).

Because the trial court did not include in its judgment the express findings required by § 30-2-57(a) when awarding alimony to the wife, we are constrained to reverse the judgment with respect to alimony and remand the cause to the trial court for the entry of a new judgment in compliance with § 30-2-57. See Merrick, 352 So. 3d at 775; Lopez, 379 So. 3d at 462. Moreover, because the division of marital property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue, Rockett v. Rockett, 77 So. 3d 599, 602 (Ala. Civ. App. 2011), we pretermit any discussion regarding the equity of the division of the marital property, and, on remand, the trial court is to reconsider the marital-property division in conjunction with its alimony determination. Lopez, 379 So. 3d at 462.

Conclusion

For the reasons discussed, we affirm the judgment insofar as it divorced the parties on the grounds of incompatibility and irreconcilable differences, with no fault as to either party, we reverse the judgment as to the award of periodic alimony, and we remand the case for the trial court to comply with § 30-2-57 and to consider the division of the marital property in conjunction with its resulting award of alimony, if any.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

FOOTNOTES

1.   At a pretrial hearing regarding the motorboat, the husband's attorney told the trial court that the boat was inoperable, that the husband was unable to obtain parts for the boat, and that the United States Coast Guard could assess a fine against the husband if the boat were left in the water.

2.   When she was explaining to the trial court what she hoped to be awarded in the divorce, the wife said, without elaboration:“If [the husband] gets any retroactive pay from any source for the years in which we filed jointly that he notify me and that he complies with the years that the pay affects. Any refund will be split 50/50. Any tax refunds that he may receive for any of the tax years we filed jointly he is to notify me immediately and comply with appropriate action.”

FRIDY, Judge.

Moore, P.J., and Edwards, Hanson, and Bowden, JJ., concur.