Dubose v. Dubose

• Decision Date: 30 September 2016
• Docket Number: 2150021
• Parties: Stuart C. DUBOSE v. Allison T. DUBOSE
• Court: Alabama Court of Civil Appeals

230 So.3d 1138

Stuart C. DUBOSE

v.Allison T. DUBOSE

2150021

Court of Civil Appeals of Alabama.

September 30, 2016

James M. Gaines and Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.

Lynn F. McConnell, Fairhope, for appellee.

On Application for Rehearing

PER CURIAM.

The opinion of July 15, 2016, is withdrawn, and the following is substituted therefor.

Stuart C. Dubose ("the husband") appeals from a judgment of the Clarke Circuit Court ("the trial court") entered in this divorce case, which began eight years ago when, in March 2008, Allison T. Dubose ("the wife") filed a complaint for a divorce from the husband. During the pendency of this litigation, the parties have been before this court on multiple occasions; however, a full procedural history is not necessary for the resolution of the issues in this appeal.¹ The instant appeal arises out of the judgment the trial court entered on remand, pursuant to this court's directive in Dubose v. Dubose, 172 So.3d 233 (Ala. Civ. App. 2014) (" Dubose III").

We first note that, at the husband's request, the records from all of the proceedings below have been incorporated as part of the record in this appeal. In Dubose III, this court was unable to determine whether the "imputed child support of $645" the trial court had calculated was the total child-support obligation for the parties' minor child or only the husband's child-support obligation. We also could not determine from the record how the trial court had arrived at the amount of $645. Thus, we reversed the judgment on the issue of child support and remanded the cause for the trial court to enter a child-support judgment in compliance with Rule 32, Ala. R. Jud. Admin. Id. at 240.

We also remanded the cause for the trial court to make a determination as to the ownership of certain personal property, including firearms, a tractor, a bulldozer, a backhoe, and a bull, that the husband had contended belonged to his father, Melton Dubose ("Melton"). Upon making that determination, the trial court was then to make the appropriate disposition of that property in its judgment. Id. at 244.

Also in Dubose III, this court affirmed the award of attorney fees to the wife; however, we reversed that portion of the judgment ordering the husband to pay "all attorney fees." On remand, the trial court was directed to take evidence regarding the amount and reasonableness of the wife's attorney fees and to establish a specific sum that the husband was required to pay toward the wife's attorney fees. Id. at 247. The remainder of the trial court's judgment, which, among other things, divided marital property, was affirmed. Id. at 248.

The trial court complied with the mandate from this court, and on April 30, 2015, it entered a judgment on remand. In that judgment, the trial court determined that certain firearms, the bull, and the bulldozer were not marital assets subject to division. However, the trial court found, a 90–horsepower tractor and a Caterpillar backhoe were marital assets, and those two farm vehicles were awarded to the wife. In the judgment on remand, the trial court also awarded the wife $11,250 toward her attorney fees. Additionally, it imputed monthly gross income of $5,000 to the wife, it imputed monthly gross income of $6,300 to the husband, and it ordered the husband to pay $645 a month in child support retroactive to March 2010. All other provisions of the judgment that had been the subject of Dubose III remained in full force and effect.

The husband filed a timely motion to alter, amend, or vacate the judgment on remand. The trial court denied the motion without a hearing, and the husband filed a timely notice of appeal.

On appeal, the husband contends that the trial court erred in denying his postjudgment motion before affording him an opportunity to be heard on that motion. As the husband points out, Rule 59(g), Ala. R. Civ. P., provides that postjudgment "motions remain pending until ruled upon by the court (subject to the provisions of Rule 59.1) but shall not be ruled upon until the parties have had opportunity to be heard thereon." Additionally, this court has held that,

"[g]enerally, a movant who requests a hearing on his or her postjudgment motion is entitled to such a hearing. Rule 59(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala. 2000). A trial court's failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221."

Dubose v. Dubose, 964 So.2d 42, 46 (Ala. Civ. App. 2007).

However,

"this court has recognized an exception to the general rule that the denial of a postjudgment motion without conducting a requested hearing is reversible error. SeeGibert v. Gibert, 709 So.2d 1257, 1258 (Ala. Civ. App. 1998) (‘A trial court errs by not granting a hearing when one has been requested pursuant to Rule 59(g) ; however, that error is not necessarily reversible error.’). ‘On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule.’ Palmer v. Hall, 680 So.2d 307, 307–08 (Ala. Civ. App. 1996) ; see alsoLowe v. Lowe, 631 So.2d 1040, 1041 (Ala. Civ. App. 1993) (‘Denial of a Rule 59 motion without a hearing is reversible error if the movant requested a hearing and harmful error is found.’). The Alabama Supreme Court has stated:

" ‘Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’

" Greene v. Thompson, 554 So.2d 376, 381 (Ala. 1989). However, ‘[w]hen there is probable merit to the motion, the error cannot be considered harmless.’ Dubose [v. Dubose], 964 So.2d [42] at 46 [ (Ala. Civ. App. 2007) ]."

Wicks v. Wicks, 49 So.3d 700, 701 (Ala. Civ. App. 2010).

Each of the issues the husband raised in his postjudgment motion is also raised on appeal. Therefore, we will consider each issue to determine whether the refusal to hold a hearing on the postjudgment motion constituted harmless error or whether there is probable merit to any of the issues presented.

First, the husband contends that the trial court's finding that the 90–horsepower tractor and the backhoe were marital property subject to division is not supported by the evidence.² Specifically, the husband asserts that both farm vehicles belonged to his father, Melton, and that, therefore, the trial court could not properly award them to the wife as part of the division of marital property.

"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).

As to the property still in dispute, i.e., the tractor and the backhoe, Melton testified that the husband had purchased the 90–horsepower tractor in November 2005 for $50,671 and that the husband had given that tractor to Melton in 2006. Melton testified that the husband wanted to "write off" the tractor and that he had wanted Melton to have it. No further explanation was given as to how or why the husband intended to "write off" the tractor. As to the backhoe, Melton testified that the husband turned it over in a creek in May 2008. When the backhoe was pulled out of the creek, Melton said, it was not operational. A repairman told Melton that he would pay Melton $9,000 for the backhoe. Melton testified that he then gave the husband $9,000 and produced a bill of sale, dated May 30, 2008, which was after the wife had filed her complaint for a divorce. The signature on the bill of sale is illegible, but it purports to be signed by the husband's attorney in fact, pursuant to a power of attorney. The bill of sale indicates that ownership of the backhoe was transferred from the husband to DuBose Family Farms LLC, Melton's limited-liability company. Melton testified that he then paid approximately $15,000 to have the backhoe repaired.

As we stated in Dubose III, "[t]he general rule is that a trial court in a divorce action lacks jurisdiction to divide property legally titled in the name of a third party not joined in the divorce action. Roubicek v. Roubicek, 246 Ala. 442, 449, 21 So.2d 244, 251 (1945)." 172 So.3d at 243.

The husband filed a motion to alter, amend, or vacate the judgment, arguing that the evidence was insufficient to support the trial court's determination as to the ownership of the tractor and the backhoe. The husband requested a hearing on the contentions made in the postjudgment motion.

Based on the evidence before us, we cannot say that there is no probable merit to the husband's assertion that Melton is the owner of the tractor or the backhoe, such that he was not entitled to a hearing on the postjudgment motion raising this argument. See Wicks, supra. Accordingly, we reverse that portion of the judgment finding that the 90–horsepower tractor and the backhoe were marital property and awarding those vehicles to the wife, and we remand the cause to the trial court for it to hold a hearing as the husband requested, in accordance with Rule 59(g), Ala. R. Civ. P.

Likewise, on appeal, as he did in his postjudgment motion, the husband argues that the trial court erred in its...