Vardaman v. Vardaman

• Decision Date: 07 November 2014
• Docket Number: 2130377.
• Citation: 167 So.3d 342
• Parties: William P. VARDAMAN v. Carol A. VARDAMAN.
• Court: Alabama Court of Civil Appeals

167 So.3d 342

William P. VARDAMAN

v.Carol A. VARDAMAN.

2130377.

Court of Civil Appeals of Alabama.

Nov. 7, 2014.

Randall W. Nichols of Massey, Stotser & Nichols, PC, Birmingham, for appellant.

Judith S. Crittenden and Paige P. Yarbrough, Birmingham, for appellee.

Opinion

THOMAS, Judge.

William P. Vardaman (“the husband”) appeals from a judgment of the Jefferson Circuit Court (“the trial court”) divorcing him from Carol A. Vardaman (“the wife”) and dividing the parties' marital property.

The parties were married on May 30, 1981; the parties had one child, a daughter who had reached the age of majority before this action began. The parties separated on October 11, 2011, when the wife moved from the marital residence. The wife filed a complaint seeking a divorce on November 7, 2011; the husband filed an answer and a counterclaim for a divorce on December 5, 2011. A trial was held over May 9–10, 2013, and June 14, 2013, at which the trial court heard evidence ore tenus. The parties provided a great deal of testimony regarding several properties —some of which were rental properties that the parties owned jointly. There was also testimony regarding properties that the wife jointly owned with other members of her family and, according to the wife, were her separate property. Additionally, the wife testified that she had been afraid of the husband several times throughout the marriage and described two instances when the husband slapped her and other instances when the husband, according to the wife, lost his temper and destroyed breakable items. The wife also testified that the husband had inappropriately touched a female friend more than once during the marriage. That individual also testified at trial and corroborated the wife's testimony. The husband denied that he had ever been abusive toward the wife or behaved inappropriately with any other woman during the marriage.

The trial court entered a judgment on September 11, 2013, that, in pertinent part, divided the marital property between the parties. The trial court reserved ruling on the issue of periodic alimony.¹ The wife filed a motion to alter, amend, or vacate the judgment on September 18, 2013, in which she requested, among other things, that the trial court correct typographical errors in the judgment. The husband filed a motion for a new trial or, in the alternative, to alter, amend, or vacate the judgment on October 7, 2013, alleging that the division of property was inequitable. On December 10, 2013, the trial court entered an amended final judgment correcting the errors pointed out in the wife's postjudgment motion; the trial court entered a separate order on that same day denying all other motions filed by either party.

The husband filed a notice of appeal to this court on January 21, 2014. In his brief on appeal, the husband argues (1) that the trial court erroneously determined that certain assets were the wife's separate property, (2) that the trial court's division of assets and liabilities was inequitable and exceeded its discretion, and (3) that the trial court erred by ordering the husband to pay the wife's attorney fees and expenses.

“ ‘A divorce judgment that is based on evidence presented ore tenus is afforded a presumption of correctness. Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998). This presumption of correctness is based upon the trial court's unique position to observe the parties and witnesses firsthand and to evaluate their demeanor and credibility. Brown, supra; Hall v. Mazzone, 486 So.2d 408 (Ala.1986). A judgment of the trial court based on its findings of facts will be reversed only where it is so unsupported by the evidence as to be plainly and palpably wrong. Brown, supra. However, there is no presumption of correctness in the trial court's application of law to the facts. Gaston v. Ames, 514 So.2d 877 (Ala.1987).’

“Robinson v. Robinson, 795 So.2d 729, 732–33 (Ala.Civ.App.2001).”

Carnes v. Carnes, 82 So.3d 704, 710 (Ala.Civ.App.2011).

The Wife's Separate Property

We first address the husband's argument that the trial court erroneously excluded assets from the marital estate. Section 30–2–51(a), Ala.Code 1975, provides, in pertinent part, that

“the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

The wife testified at trial that she has a one-third interest in property located in Wilcox County (“the Wilcox County property”) that is jointly owned with her brother and her uncle. The wife's one-third interest had previously belonged to her mother's sister (hereinafter referred to as “Aunt Betty”); the wife's father bought Aunt Betty's one-third interest and gifted it to the wife in or around 1996.² The record indicates that the Wilcox County property was primarily used for hunting and timberland. The wife testified that she remembered that the timber on the Wilcox County property had been cut and sold twice and that she had deposited her share of the proceeds into her individual Regions Bank checking account. She further testified that she had used the funds in the Regions Bank checking account at her sole discretion, for example, to pay the balances on her department-store credit cards and to sometimes purchase groceries; she testified that parties had not used her Regions Bank checking account to pay the monthly utilities for the marital residence. The parties agreed that the husband had placed a cabin and shipping containers that he had converted into sleeping houses on the Wilcox County property; it was undisputed that those structures were portable and could be removed from the property. The husband testified that he had used the parties' joint funds to build a lake, to create fire lanes, and to install underground utilities on the Wilcox County property.

The wife also jointly owns with her brother property located in Elmore County on Lake Martin (“the Lake Martin property”), which was given to them by their father in or around 1970. It was undisputed that the parties and their daughter visited the Lake Martin property often during the summers. The husband testified that he had used the parties' joint funds to add a covered deck, sidewalks, underground lighting, and irrigation to the house that stood on the Lake Martin property; the wife testified that no one had asked him to make those improvements.

“The trial judge is granted broad discretion in determining whether property purchased before the parties' marriage or received by gift or inheritance was used ‘regularly for the common benefit of the parties during the marriage.’ See § 30–2–51, Ala.Code 1975. Even if the trial court determines that such property was regularly used for the common benefit of the parties during the marriage, the determination whether to include such property in the marital assets to be divided between the parties lies within the discretion of the trial court. [ Ex parte Durbin ], 818 So.2d 404 (Ala.2001).”

Nichols v. Nichols, 824 So.2d 797, 802 (Ala.Civ.App.2001).

In T.K.T. v. F.P.T., this court affirmed a judgment awarding the wife in that case a one-half interest in property that the husband in that case argued was his separate property. 716 So.2d 1235, 1240 (Ala.Civ.App.1998). In affirming that portion of the judgment, this court relied on testimony indicating that the family had spent weekends there, that the wife had stored family property there, that the parties had included the property in their financial assets, and that the parties had planned to retire to the property. Id. Conversely in Yohey v. Yohey, 890 So.2d 160, 165 (Ala.Civ.App.2004), this court affirmed a judgment treating a lakefront property as the separate property of the husband in that case even though “it was at least arguable that the lot could have been deemed marital property.” The parties in Yohey testified that they had planned to build their future vacation/retirement home on the lot and that they had hired an architect, had arranged for percolation tests on the soil, and had begun foundation work on a residence. Id.

It does not appear from our research that the legislature or our supreme court has definitively explained what constitutes “regular[ use] for the common benefit of the parties during their marriage.” However,

“ ‘[§ ] 30–2–51 states that if a party does not use his or her inheritance or gifts for the common benefit of the parties to the marriage, then the trial judge may not consider the inheritance or gifts when making a property division. Nothing in the statute states that if one party's inheritance or gifts are used for the parties' common benefit then the trial judge must consider the inheritance or gifts when making the property division. In fact, the statute leaves such a determination to the discretion of the trial judge....’

“[Ex parte Drummond, ] 785 So.2d [358,] 362 [ (Ala.2000) ].”

Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001).

The wife in this case jointly owns the Wilcox County property and the Lake Martin property with other members of her family. Even though the husband was allowed use of those properties during the marriage,³ we cannot say that the evidence dictates that the wife's interest in those properties was transmuted into marital property. See Nichols, 824 So.2d at 800, 803 (determining that property that the husband in that case had inherited was not marital property despite evidence indicating that the family had used it for hunting and other purposes). Based upon the foregoing, we conclude that the trial court did not err to reversal by excluding those properties from the marital estate.⁴

Division of the Marital Assets

The husband next argues that the trial court's division of the marital assets was inequitable. We disagree. In his brief on appeal, the husband alleges that the wife received...