Humber v. Bjornson

• Court: Alabama Court of Civil Appeals
• Writing for the Court: Per Curiam
• Citation: Humber v. Bjornson, 8 So.3d 995 (Ala. Civ. App. 2008)
• Decision Date: 07 November 2008
• Docket Number: 2061076.
• Parties: Austin L. HUMBER, Jr. v. Melissa Kay Humber BJORNSON.

8 So.3d 995

Austin L. HUMBER, Jr. v. Melissa Kay Humber BJORNSON.

2061076.

Court of Civil Appeals of Alabama.

November 7, 2008.

Lorraine W. Pringle, Bessemer, for appellant.

Mark Bishop Turner, Jasper, for appellee.

PER CURIAM.

Austin L. Humber, Jr. ("the former husband"), and Melissa Kay Humber Bjornson ("the former wife") were divorced on March 21, 2003, by a judgment of the Walker Circuit Court (hereinafter "the trial court"). The parties' divorce judgment incorporated an agreement, a copy of which is contained in the record on appeal, that provided, in pertinent part, as follows:

"That the [former wife] shall be the sole owner, free and clear from any claim of the [former husband], of the 2001 Mitsubishi Gallant automobile and the 1997 Chevrolet S-10 Blazer. The [former wife] shall pay all indebtedness thereon and shall indemnify and hold harmless the [former husband] from any loss thereon. The [former husband] shall sign any and all documents necessary or advisable to effectuate this transfer.

"....

"Each party shall execute and deliver all documents of any type that may be necessary or expedient for the consummation of the provisions of this agreement."

On November 16, 2006, the former husband filed a petition for a rule nisi alleging that the former wife had failed to comply with the provision of the March 21, 2003, divorce judgment requiring her to pay all indebtedness on the Chevrolet S-10 Blazer sport-utility vehicle jointly owned by the parties during the marriage; therefore, he argued, the former wife was in contempt of the trial court's divorce judgment.

On February 6, 2007, the trial court conducted a final hearing at which it considered ore tenus evidence pertaining to the former husband's petition for a rule nisi. On June 28, 2007, the trial court entered an order denying the former husband's petition for a rule nisi and finding that the former husband was the true owner of the S-10 Blazer.

On July 27, 2007, the former husband filed a motion to reconsider or, in the alternative, to alter, amend, or vacate the trial court's June 28, 2007, order denying the former husband's petition for a rule nisi. On August 22, 2007, the former husband filed a notice of appeal.¹ The postjudgment motion was denied by operation of law on October 25, 2007.

At the outset, we note that when a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This "presumption of correctness is based in part on the trial court's unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor." Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ. App.1999). However, no presumption of correctness is afforded the trial court's application of the law to the facts. Brown v. Brown, 719 So.2d 228, 230 (Ala.Civ.App. 1998).

The evidence presented to the trial court revealed the following pertinent facts. While married, the parties purchased a 1997 Chevrolet S-10 Blazer. The vehicle was paid for by a loan from the former husband's credit union. The testimony indicates that payment on the loan was automatically withdrawn from the former husband's paycheck. The former husband testified that the former wife agreed during their uncontested divorce proceedings to pay the outstanding balance owed on the vehicle. Pursuant to the divorce judgment, the former wife was awarded the vehicle and was ordered to pay the remaining indebtedness thereon. The former husband testified as follows regarding his understanding of the former wife's repayment of the loan on the vehicle:

"Q. Okay. Now, on the matter of the rule nisi petition that was filed on your behalf, to which I signed, alleging that in the settlement agreement your ex-wife, which at that time had not become your ex-wife, had agreed to take over the payments of the Chevy Blazer.

"A. Yes, ma'am.

"Q. And she knew from discussions between your lawyer and her lawyer that she was supposed to refinance this vehicle in her name?

"A. Well, we used the same lawyer. ... [I]t was in the order that she was supposed to, and when she got it refinanced ... she was supposed to sign the papers to clear me of anything on the Chevrolet Blazer, but it never was—you know, I took care of all—I mean I did. I paid every bit of it. She never even attempted to make a payment on it.

"Q. What was the arrangement between you and [the former wife] as to how the payment was supposed to get to you?

"A. I mean, there was no arrangement. From what I understood, she was just supposed to, you know, make the payment or give me the money to make the payment. That would have been fine. I could have went and made the payment, you know, put the money in my account because the payment was coming out of my check."

The former husband testified that during the three months following the parties' divorce, the vehicle remained parked at the former wife's mother's house. According to the former husband, the former wife did not make any payments on the vehicle after the trial court entered its divorce judgment. The former husband explained that he continued to make payments on the vehicle after the parties divorced.

The former husband testified that he repossessed the vehicle after the former wife failed to make payments on the loan. The former husband consulted his attorney (the same attorney that had represented the parties in the uncontested divorce proceedings), and, according to the former husband, the attorney instructed him to "repossess" the vehicle. The former husband testified that, in June 2003, the former wife drove him to her mother's house so that he could retrieve the vehicle. The former husband testified that, at the time he repossessed the vehicle, he and the former wife had not reached an agreement that he would take the vehicle and the former wife would have no right to possession of the vehicle.

The former husband acknowledged that he had the full benefit of the use of the vehicle after he took possession of it. The former husband testified that he drove the vehicle as needed when his primary vehicle was in the shop for repair. The former husband stated, however, that he had not driven the vehicle during the two years preceding the final hearing.

The former husband estimated that he had paid approximately $500 a month on the loan for the vehicle. In addition to the loan payment, the former husband testified that he had also paid $123.18 a month for insurance on the vehicle. According to the former husband, he had been required to maintain full insurance coverage on the vehicle while his credit union held the title to the vehicle. The former husband testified that he had spent close to $25,000 over a four-year period on loan payments and insurance premiums for the vehicle. The former husband testified that no outstanding indebtedness remained on the vehicle at the time of the final hearing. The former husband stated that he had the title to the vehicle and that the vehicle was registered in his name alone. According to the former husband, the former wife never offered him any money toward the payments on the vehicle.

The former wife testified that she understood that, pursuant to the parties' agreement, she was supposed to take possession of the vehicle and make the payments on it. However, according to the former wife, before the parties divorced, she and the former husband agreed that the former wife's brother would take possession of the vehicle and pay $350 a month for the use of the vehicle. At the time the parties divorced, the former wife's brother was using the vehicle. When asked about her brother's use of the vehicle, the former wife testified as follows:

"A. Well, before [the former husband] and I divorced, we had allowed my brother to take the Blazer, [the former husband] and myself. And I believe that my brother agreed to pay $350 a month for it and he did for a couple of months.

"Q. Whose brother?

"A. My brother. And at that point [the former husband] and I did get the divorce, and my brother was still driving the Blazer. And I guess maybe three months went by and he didn't pay anything, and [the former husband] and I talked several times about it and, you know, I would talk to my brother and always get the runaround. So [the former husband] asked me to have the Blazer parked at my mother's house, and I did, and he asked me to come by and get him so he could pick it up, so I went by and got him and dropped him off, and he took off in [the vehicle].

"Q. And he has had it ever since?

"A. Yes, sir.

"Q. Has he ever—he had it for quite some time. Forty months he made payments on it. He still has it, of course. But did he ever call you, do you recall him calling you and saying, hey, when [are] you going to come pick this thing up, I don't want to pay for it, or anything like that?

"A. No sir. The only conversations we ever had about the Blazer was when I would ask him to help me financially with the kids, and he would throw up the fact that he was paying for the Blazer and that was his financial payments."

The former wife testified that the former husband never contacted her to inquire as to when she was going to pick up the vehicle. Testimony at the final hearing indicated that the title to the vehicle had remained in the former husband's name and was never changed to reflect the former wife's ownership of the vehicle. The former wife testified that she never took possession of the vehicle and that the former husband had always had possession of the vehicle after the former husband had "repossessed" the vehicle following the parties' divorce. The former wife testified that when the former husband filed his rule nisi petition was the...