Littlepage v. Littlepage

• Decision Date: 19 August 2016
• Docket Number: 2140956.
• Citation: 217 So.3d 928
• Parties: Connie F. LITTLEPAGE III v. Virginia O. LITTLEPAGE. Virginia O. Littlepage v. Connie F. Littlepage III.
• Court: Alabama Court of Civil Appeals

217 So.3d 928

Connie F. LITTLEPAGE III

v.Virginia O. LITTLEPAGE.

Virginia O. Littlepage

v.Connie F. Littlepage III.

2140956.

Court of Civil Appeals of Alabama.

Aug. 19, 2016.

James T. Sasser, Birmingham, for appellant/cross–appellee Connie F. Littlepage III.

Kenneth R. Raines and W. Lee Webb of Raines Law Firm, Fairhope, for appellee/cross–appellant Virginia O. Littlepage.

MOORE, Judge.

Connie F. Littlepage III ("the husband") appeals from a judgment entered by the Baldwin Circuit Court ("the trial court") divorcing him from Virginia O. Littlepage ("the wife") to the extent that that judgment awarded the wife periodic alimony, awarded the wife "family support arrearages," and divided the marital property. The wife cross-appeals from the divorce judgment insofar as the trial court awarded the husband one-half of the wife's retirement accounts and failed to award her attorney's fees. With regard to the appeal, we affirm the trial court's judgment in part, reverse the judgment in part, and remand the case for further proceedings. With regard to the cross-appeal, we affirm the judgment in part, reverse the judgment in part, and remand the case for further proceedings.

Procedural History

On August 8, 2011, the wife filed a complaint seeking a divorce from the husband. On September 28, 2011, the trial court entered a pendente lite order, based on the agreement of the parties, providing, among other things, that the wife would have pendente lite custody of the parties' two children and that "[t]he Status Quo shall remain in full force and effect as to payment of all bills and expenses of the marriage." In response to various motions, the trial court entered a subsequent pendente lite order on October 1, 2013, providing, in pertinent part:

"1. [The wife] is to have sole authority to lease and collect proceeds from the Spanish Fort, Alabama property referred to as the trailer and the two Butler Alabama rental properties. [The wife] is to pay for the debts, repairs, monthly obligations and bills on these properties at this time.

"2. [The husband] is to be given notice of the identity of the individual or individuals that are to be tenants in these properties.

"3. [The husband] will pay to [the wife] the sum of $2,500.00 a month beginning September, 2013.

"4. [The husband] is to pay $5,600.00 to [the wife], prior to the date of trial on the merits, toward any back support ... that the Court may, at trial, determine[ ] due. This amount is not a final calculation of back support owed, if any. A final determination on back support due, if any, shall be made at trial of this matter."

After a trial, the trial court entered a judgment on April 16, 2015, that, among other things, divorced the parties, ordered the husband to pay "$74,550.00 as family support arrearages through February 2015," found that "all properties/accounts are indeed marital property and subject to division" and divided those properties and accounts, and ordered the husband to pay $1,000 a month in periodic alimony. On May 15, 2015, the husband and the wife filed separate postjudgment motions. On July 13, 2015, the trial court amended the judgment with regard to certain issues not related to this appeal. On August 19, 2015, the husband filed his notice of appeal. On September 2, 2015, the wife cross-appealed.

Standard of Review

" ‘In a case in which the evidence is presented to the trial court ore tenus, such as this one, the findings of the trial court are presumed correct and will not be set aside unless they are plainly and palpably wrong or unjust.’ Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala.1991). ‘Furthermore, where the trial court does not make findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous.’ Ex parte Walters, 580 So.2d 1352, 1354 (Ala.1991)."

Brown v. Brown, 26 So.3d 1210, 1213–14 (Ala.Civ.App.2007).

Discussion

On appeal, the husband argues that the trial court erred in determining that certain properties were marital property, in awarding the wife periodic alimony, and in awarding the wife "family support arrearages." On cross-appeal, the wife argues that the trial court erred in determining that certain of her financial accounts were marital property, in dividing those accounts between the parties, and by not awarding her attorney's fees.

I. Determination of and Division of Marital Property and Award of Periodic Alimony

Section 30–2–51, Ala.Code 1975, provides:

"(a) If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family. Notwithstanding the foregoing, 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.

"(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:

"(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.

"(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.

"(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court."

A. Mellen Creek, LLP, and Littlepage Properties, LLP

The undisputed evidence presented at the trial indicates that, during the marriage, the husband's father had gifted to the husband and the husband's sister a partnership interest in Mellen Creek, LLP, and Littlepage Properties, LLP. Once it has been demonstrated that property was acquired by gift or inheritance, pursuant to § 30–2–51(a), in order to make a division of that property, the trial court must find from the evidence that the property was used regularly for the common benefit of the parties during the marriage. See Shirley v. Shirley, 600 So.2d 284 (Ala.Civ.App.1992).

In the present case, the record contains no evidence indicating that Mellen Creek, which owns a subdivision referred to as "Sterling Hills," had produced any income for the husband or that the husband had put his partnership interest in Mellen Creek to some use that had benefited the parties during the marriage. Thus, the trial court erred to the extent that it determined that the husband's partnership interest in Mellen Creek was marital property.

With regard to the husband's interest in Littlepage Properties, the evidence indicates that Littlepage Properties owns several properties that are used as rental property. The wife testified that she, as a real-estate agent, had assisted Littlepage Properties by procuring tenants for those rental properties and that she had done so without taking a fee for her services. She testified further that Littlepage Properties had received most of the proceeds generated from renting those properties but that, "[o]ccasionally," during the parties' 15–year marriage, she and the husband would receive money from the rental of those properties.

This court has held that "frequent or periodic use of the gift or inheritance property to satisfy the needs of the family [is] sufficient to amount to regular use under [§ 30–2–51(a), Ala.Code 1975]." Hull v. Hull, 887 So.2d 904, 908 (Ala.Civ.App.2003). In Hull, this court discussed the case of Bushnell v. Bushnell, 713 So.2d 962, 964 (Ala.Civ.App.1997), noting that this court had determined that certain inherited funds had been used "frequently" or "periodically" "to satisfy the needs of the family" and that that was "sufficient to amount to regular use under [30–2–51(a) ]." Hull, 887 So.2d at 908. This court noted that, in Bushnell, the evidence had indicated that the funds

"had been used throughout the marriage to pay the parties' mortgage payment on occasion; to pay taxes on the parties' real property; to pay income taxes on six occasions in 1994 and on other occasions in 1993; to purchase a furnace for the marital residence; to purchase a van for the wife; to purchase a piano for the daughter; and to purchase a vacuum cleaner."

Id. The court further noted that the use of the funds was "documented in the account history the wife presented as evidence at trial." Id. In addressing the evidence presented in Hull, this court stated that

"the wife used $10,000 of the inheritance funds to remodel the kitchen while the parties undertook to remodel the marital residence as a result of hurricane damage [but that] [t]he record in this case does not include, as it did in Bushnell, the wife's bank records reflecting periodic transfers of her funds into the parties' joint account or checks written by the wife from her separate accounts to pay for the parties' household or other expenses."

Id. This court determined that the one-time use of the inherited funds was insufficient to show that they had been regularly used for the common benefit of the parties during the marriage. Id.

In the present case, the evidence indicating that rent checks had been made out to the husband and the wife clearly does not rise to the level of the extensive evidence set forth in Bushnell concerning the regular use of the inherited funds for the common benefit of the parties during the marriage. There is no evidence indicating the frequency at which the husband and the wife received those rental proceeds. Moreover, the record contains...