Cowperthwait v. Cowperthwait

• Decision Date: 21 October 2016
• Docket Number: 2150252
• Parties: Michael T. Cowperthwait v. Carrie Ann Cowperthwait
• Court: Alabama Court of Civil Appeals

Michael T. Cowperthwait v. Carrie Ann Cowperthwait

2150252

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2016-2017

October 21, 2016

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) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Madison Circuit Court

(DR-14-900868)

MOORE, Judge.

Michael T. Cowperthwait ("the husband") appeals from a judgment entered by the Madison Circuit Court ("the trial court") divorcing him from Carrie Ann Cowperthwait ("the wife") to the extent that it divided the parties' property, awarded the wife alimony, and awarded the wife sole physical custody of the parties' children. We affirm the trial court's judgment in part and reverse it in part.

Procedural History

On October 9, 2014, the husband filed a complaint seeking a divorce from the wife. On October 22, 2014, the wife answered the complaint and counterclaimed for a divorce. The husband filed a reply to the counterclaim on October 23, 2014.

On September 9, 2015, the parties entered into a stipulation of partial settlement providing for the division of several of the parties' retirement accounts. After a trial, the trial court entered a judgment on September 15, 2015, that, among other things, divorced the parties, awarded the wife sole physical custody of the parties' two children; ordered the husband to pay monthly child support in the amount of $1,398; ordered the husband to pay monthly alimony in the amount of $1,000 for 104 months; divided the proceeds from the sale of the marital home and a boat equally between the parties; divided the parties' joint bank accounts equally between the parties; divided the parties' retirement accounts as set forth in the parties' joint stipulation; ordered thehusband to pay the balance owed on the parties' joint USAA MasterCard credit-card account; ordered each party to pay the debts in his or her individual name; divided the parties' personal property; and ordered the husband to pay $10,000 to the wife to "to equalize the division of personal property."

On October 14, 2015, the husband filed a postjudgment motion. That motion was denied on November 6, 2015. On December 11, 2015, the husband filed his notice of appeal to this court.

Discussion

A.

On appeal, the husband first argues that the trial court erred in its division of the marital property and in its award of alimony to the wife.

"In reviewing a judgment of the trial court in a divorce case, where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court's judgment based on those findings will be presumed to be correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So. 2d 323 (Ala. Civ. App. 1993). This presumption of correctness is based on the trial court's unique position to observe the witnesses and to assess their demeanor and credibility. Hall v. Mazzone, 486 So. 2d 408 (Ala. 1986). Additionally, matters of alimony and property division rest soundly within the trial court'sdiscretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So. 2d 464 (Ala. Civ. App. 1994). 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)."

Zinnerman v. Zinnerman, 803 So. 2d 569, 572 (Ala. Civ. App. 2001).

With regard to the property division, the husband specifically argues that the trial court erred in ordering him to pay the debt on his Best Buy credit-card account and on the parties' joint USAA MasterCard credit-card account. The evidence in the record shows that, after the parties separated, the wife purchased several appliances as an authorized user on the husband's Best Buy credit-card account, leaving a balance of $1,476.76. The judgment provides that, unless specifically stated otherwise, the wife shall pay any debt she has incurred regardless of whether that debt was incurred in her name or "in the joint names of parties hereto." The judgment does not specify that the husband must pay the Best Buy credit-card debt. Thus, the judgment does not impose any liability on the husband for that debt;instead, it requires the wife to pay that debt. Thus, we do not address this argument further.

The judgment does specifically order the husband to pay the balance of the USAA MasterCard credit-card account, which totaled $5,718.27. The evidence in the record shows that, while the divorce action was pending, the wife charged $2,857 on the USAA MasterCard credit-card account to pay her attorney's fees and that she also took a $2,500 cash advance. The trial court specifically indicated that it would not order the husband to pay the wife's attorney's fees because the wife had made no claim for those fees, so that portion of the judgment requiring the husband to pay $2,857 of the balance owed on the USAA MasterCard credit-card account cannot stand. See Cinader v. Cinader, 367 So. 2d 487, 488 (Ala. Civ. App. 1979) ("[A] request [for attorney's fees] must be made, and evidence of financial need and performance of the service shown before the authority of the court to grant such fees is properly invoked."); Kelley v. Kelley, 414 So. 2d 126, 129 (Ala. Civ. App. 1982) (reversing trial court's judgment insofar as it awarded the plaintiff in that case attorney's fees "[b]ecause of the absence of any request for anattorney's fee and [because] that issue was not tried by either express or implied consent of the parties"). We therefore reverse the trial court's judgment to the extent it ordered the husband to pay that portion of the USAA MasterCard credit-card balance that is attributable to the wife's attorney's fees.

In his postjudgment motion, the husband argued that he should not be required to pay the balance on the USAA MasterCard credit-card account because "[t]his debt was incurred exclusively by the [w]ife" and "cannot be considered to have been accrued for the benefit of the parties." On appeal, the husband reasserts that argument; however, in his appellate brief, the husband does not cite any evidence as to how the wife used the $2,500 cash advance, arguing only generally that, if the wife used the cash advance for her own personal benefit, it cannot be considered a marital debt. See generally Carnes v. Carnes, 82 So. 3d 704 (Ala. Civ. App. 2011). "This Court does not have the obligation to search the record for substantiation of unsupported factual matter appearing in an appellant's brief in order to determine whether a judgment should be reversed." Friedman v. Friedman,971 So. 2d 23, 31 (Ala. 2007). The husband asserts other arguments as to why he should not be liable for the cash advance, but those arguments were not presented to the trial court and, hence, cannot be considered by this court for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So. 2d 409 (Ala. 1992). Thus, we affirm the judgment insofar as it requires the husband to pay the charges on the USAA MasterCard credit-card account for the cash advance received by the wife.

The husband next argues that the trial court erred in awarding the wife $10,000 to "equalize" the personal-property division. He argues that the award of $10,000 actually resulted in the wife's receiving personal property in an amount significantly greater than that awarded to the husband. However, the wife points out in her appellate brief that, using the values of the personal property that she presented at the trial, the personal-property division is only $45.01 from being equal. See Driver v. Hice, 618 So. 2d 129, 131 (Ala. Civ. App. 1993) (noting that "we are required to review the evidence in a light most favorable to the prevailing party").

Furthermore,

"a property division pursuant to divorce is not required to be equal, but merely equitable. Huntress v. Huntress, 555 So. 2d 1103 (Ala. Civ. App. 1989).

"The trial court is also free to consider the conduct of the parties in regard to the cause of the divorce in its property division. Huntress, supra. Even when the grounds of the divorce are incompatibility, the trial court may consider fault when making a division of property. Lutz v. Lutz, 485 So. 2d 1174 (Ala. Civ. App. 1986)."

Allen v. Allen, 565 So. 2d 653, 655 (Ala. Civ. App. 1990).

In the present case, although the trial court divorced the parties based on the grounds of incompatibility of temperament and irreconcilable differences, the trial court specifically found "the Husband's inappropriate relationships with other women and his lack of honesty with the Wife about said relationships to be a significant factor contributing to the breakdown of the parties' marriage." The husband does not challenge that finding on appeal. Based on the foregoing, we cannot conclude that the trial court's award of $10,000 to the wife to equalize the personal-property division was inequitable even if it did result in the wife's being awarded property valued at more than the property the husband was awarded.

The husband also argues that the trial court erred in its award of alimony to the wife. With regard to alimony, the husband specifically argues that the wife failed to prove the parties' standard of living during the marriage, instead having presented evidence of her expenses during the parties' separation. We note, however, that the trial court did not make specific findings of fact with regard to its award of alimony, and the husband did not challenge the sufficiency of the evidence on the marital standard of...