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HATFIELD v. HATFIELD6/9/1997
s had been placed in and spent from a joint account, and that in October of 1993, $65,000 had been transferred
In her motion to reconsider, Wife argued that she no longer possessed the $65,000 savings deposit and asked the judge to review the property division and the denial of alimony in light of this alleged error. In his order dated July 19, 1995, the judge stated the financial evidence before the court was "extremely difficult" due to the conduct of the parties, particularly Wife, in removing money from marital accounts, and because of the parties' contradicting testimony as to expenditures and fund transfers. He concluded, "The Court is of the opinion that the $110,000 was deposited to a joint account and $65,000 removed by Plaintiff." The judge stood by his prior findings and denied reconsideration on this point.
In our own view of the preponderance of the evidence, we find that, at the time Wife filed this action for separate maintenance and support, only $21,000 remained of the $65,000 that had been transferred into Wife's savings account; we note even Husband testified that the parties had continued to pay marital expenses out of this account as needed. The $21,000 consists of three certificates of deposit held in Wife's name which the judge had already divided between the parties. Accordingly, we hold the judge should not have offset the nonexistent $65,000 savings deposit against the stock retained by Husband. Thus, $44,000 ($65,000 minus $21,000) has been treated as a "credit" in Wife's favor in the apportionment of the marital estate when she does not possess these funds. Since Wife asserts the property division was otherwise substantially equal except as to items that were clearly nonmarital, we find a proper apportionment is to allow the parties to retain the individual assets as distributed to them under the judge's order, and to require Husband to pay Wife the sum of
$44,000 in order to retain the assets distributed to him pursuant to the family court order.
CONCLUSION
For the foregoing reasons, we affirm the judge's denial of alimony and affirm the award of the disputed stock to Husband. We reverse so much of the judge's order that states Wife has possession of a $65,000 savings deposit and hereby order Husband to pay Wife the sum of $44,000 while retaining the assets distributed to him under the judge's order.
AFFIRMED IN PART and REVERSED IN PART.
HOWELL, C.J., and GOOLSBY, J., concur.
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