REL: December 9, 2022
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) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2022-2023 _________________________
2200969 _________________________
Anjanette Anderson
v.
William Anderson
Appeal from Lauderdale Circuit Court (DR-19-900280)
MOORE, Judge.
Anjanette Anderson ("the wife") appeals from a judgment entered
by the Lauderdale Circuit Court ("the trial court") divorcing her from
William Anderson ("the husband"). We affirm the judgment. 2200969
The Judgment
On July 23, 2021, after a trial at which it received ore tenus
evidence, the trial court entered a judgment divorcing the parties on the
ground of incompatibility of temperament. The judgment, among other
things, awards the husband the marital residence, divides the parties'
personal property, requires each party to pay his or her individual debts,
and denies either party alimony. The judgment further awards the
husband sole custody of the parties' two minor children, requires the
husband to maintain health-insurance coverage for the benefit of the
minor children, and declines to award the husband any child support. On
August 18, 2021, the wife filed a postjudgment motion, arguing, among
other things, that the trial court had erred in failing to award her periodic
alimony, in awarding the husband the marital residence, and in dividing
the parties' personal property. The trial court denied the postjudgment
motion on August 20, 2021. The wife filed a timely notice of appeal on
September 2, 2021.
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The Issues
On appeal, the wife argues that the trial court erred in dividing the
marital property and in failing to award her periodic alimony.
Analysis
Under Ala. Code 1975, § 30-2-51(b)(1), a trial court, when divorcing
parties, shall make an equitable division and distribution of the marital
property. "Equitable division and distribution involves the 'fair ...
allocation' of marital property." Corriveau v. Corriveau, [Ms. 2200425,
Nov. 19, 2021] ___ So. 3d ___, ___ (Ala. Civ. App. 2021) (quoting Black's
Law Dictionary 679 (11th ed. 2019)). When a trial court receives oral
testimony, this court presumes the correctness of the trial court's
judgment, and this court may reverse that judgment only when the
appellant shows that the trial court abused its broad discretion in
dividing the marital property. See Sumerlin v. Sumerlin, 964 So. 2d 47
(Ala. Civ. App. 2007). "A property division that favors one party over
another does not necessarily indicate an abuse of discretion by the trial
court." Fell v. Fell, 869 So. 2d 486, 496 (Ala. Civ. App. 2003).
3 2200969
The salient evidence regarding the division of the marital property
is as follows. At the time of the trial, the husband was 60 years old and
the wife was 54 years old. The parties had been married for over 29 years
at the time of their separation on October 1, 2019. The parties had three
children, two of whom were minors at the time of the trial. The parties
separated in October 2019 following an incident at a local motel. The
husband testified that he had found the wife staying at the motel and
that, when he entered her motel room, he had found her clad in lingerie.
According to the husband, the wife had said that she had been drinking
wine with her friends. The wife testified that she had been staying at the
motel to protect herself from the husband, who she described as abusive.
The husband denied that he had ever physically abused the wife and the
wife did not produce any evidence to corroborate her allegations of abuse.
The wife also claimed that the parties' minor children had been abusing
her and had been forcing her to stay in a locked bedroom in the marital
residence, claims that the husband also denied. The husband testified
that, to the contrary, the parties' children had left the marital residence
in 2014 because of alleged physical abuse by the wife and that the State
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Department of Human Resources had twice investigated the wife for
allegedly abusing the children.
Before their separation, the parties had lived together with the two
minor children in the marital residence in Florence. The parties did not
own any other real property. The husband testified that the marital
residence had been purchased 31 years ago and that he and the wife had
lived together in the marital residence from the time of their marriage in
1990 until the wife moved out in October 2019. According to the husband,
the mortgage payments on the note securing the mortgage of the marital
residence, which were $620 per month at the time of the trial, were paid
from a joint checking account. The wife testified that she had directly
deposited her paycheck into that account, but the husband testified that
the wife would subsequently withdraw those funds from the account, and,
thus, he said, she had not contributed to the payment of the mortgage
note. The wife disputed that testimony, but she did not proffer any direct
evidence demonstrating any contributions that she had made toward the
payment of the mortgage note. The wife also did not testify that she had
made or had contributed to any improvements to the marital residence.
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The husband testified that, at the time of the trial, the marital residence
had a fair market value of $108,000 and that $25,000 was still owed on
the mortgage note. The wife testified that the mortgage-note balance was
$27,000. At one point during the trial, the wife requested half of the
equity in the marital residence, but she later testified that "with the
equity of the home I'll just give it to the [parties' children]."
During the marriage, the husband worked as a law-enforcement
officer and the wife worked as a nurse. The husband testified that he had
also owned a profitable car-wash business but that he had sold that
business in 2008. When the husband worked overtime, the wife would
care for the parties' children. The husband retired in 2018 and, at the
time of the trial, was receiving approximately $2,000 a month in Social
Security disability benefits. The husband also owns an individual
retirement account ("IRA") that, at the time of the trial, had a balance of
$552,000. According to the husband, the wife had worked at a local
hospital until it closed and, upon its closing, had received a retirement
"payout." Neither party specified the amount of the payout, but the
husband testified that, at one point, the wife had deposited $15,000 into
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her separate bank account, the funds of which, he said, he had not
accessed. After the hospital closed, the wife worked as a traveling nurse,
earning $60 per hour. The husband testified that, in 2019, when the
parties separated, the wife was earning approximately $3,500 every two
weeks. The wife stated that she had been unemployed since October 2019
and that she could no longer work as a nurse because, she said, in April
2019 she had suffered a mental breakdown and her nursing license had
been revoked by the State Board of Nursing. The wife testified that, since
March 2020, she had been living in Louisiana with her fiancé, who, she
said, supports her financially and provides her with health-insurance
coverage.
The parties had accumulated various automobiles and recreational
vehicles over the years, including a boat and several automobiles in
salvageable condition. The husband testified that he had purchased all
the automobiles and recreational vehicles, but the wife testified that she
had contributed to the purchase of a 2004 GMC Yukon Denali
automobile. The wife requested that the trial court award her the Yukon
Denali and the 2010 Chevrolet Camaro automobile that she regularly
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drove. The wife testified that she was not claiming any interest in the
recreational vehicle, including the boat or the salvageable automobiles.
The husband testified that, before they separated, the parties had
had a joint savings account and a joint checking account. The wife
testified that she had directly deposited her paycheck into the joint
checking account and that the husband would then give her $200 per
week as spending money. Although the checking account was a joint
account, the wife claimed that she could not access the account without
the husband's permission. The husband, on the other hand, testified that
the wife had not contributed to the joint checking account and that he
had not limited her spending to $200 per week; instead, the husband said,
although the wife's paycheck was deposited into the joint checking
account, she would immediately withdraw that money for her own use.
He testified further that the wife had withdrawn all the funds in that
account when she left the family in October 2019. The husband testified
that, in the 10 years preceding their separation, the wife had separated
herself financially from the family and had used her wages solely for her
own benefit, purchasing designer-brand clothing and accessories. The
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husband testified that, since 2008, he had paid most of the family's
expenses and all the marital debts out of his salary as a law-enforcement
officer, which was $42,000 per year, and from the proceeds he had
received from the sale of the car-wash business. The husband testified
that the wife took all of her personal property with her when she left in
October 2019 and that he had noticed that $6,000 worth of custom fishing
rods and fishing reels were also missing.
The husband testified that, after the wife left the family in October
2019, he had cared for the minor children without any financial support
from the wife. The husband testified that he pays $800 per month for a
health-insurance policy that covers the minor children and himself, that
he had purchased a 2011 Chevrolet Malibu automobile for one of the
minor children and had been making the payments on that automobile,
and that he pays for the minor children's automobile insurance. The wife
claimed that the minor children had changed the name on her credit
cards without her permission and had made unapproved charges totaling
$35,000 on those credit cards. The husband testified that the minor
9 2200969
children had charged only $700 on the wife's credit cards for clothes for
school just before the wife left the marital residence in October 2019.
In her brief to this court, the wife asserts that the husband received
the entirety of the marital property with the lone exception of her
personal automobile. The wife overlooks the evidence indicating that she
had separated herself financially from the husband in the 10 years before
the parties separated; that she had used her retirement payout solely for
her own personal benefit; that, when she left the family, she had taken
with her all of her personal property as well as all the funds in the parties'
joint checking account, which was estimated by the husband to be
between $5,000 and $6,000; that she was relieved of the duty to repay the
mortgage note associated with the marital residence, which had a
balance of approximately $25,000; and that she was not ordered to pay
any child support for the benefit of the parties' minor children. The wife
nevertheless argues that she should have received a portion of the equity
in the marital residence and a portion of the funds in the husband's IRA.
From the conflicting evidence in the record, the trial court could
have determined that the equity in the marital residence was
10 2200969
approximately $80,000 and that the wife had not directly contributed to
the payments on the debt for that marital asset, which, it could have
determined, were made solely with funds contributed by the husband.
See Courtright v. Courtright, 757 So. 2d 453, 456 (Ala. Civ. App. 2000)
(requiring a court to consider the source of the marital property when
dividing the marital estate). The trial court could also have determined
that the wife had disclaimed any interest in the equity in that asset
because the wife had testified that, if her award of marital property
included any part of the value of the marital residence, she would give
that money to the parties' children. Based on those determinations, the
trial court could have exercised its discretion to determine that the wife
should not be awarded any part of the equity in the marital residence.
See Lo Porto v. Lo Porto, 717 So. 2d 418, 421 (Ala. Civ. App. 1998)
(quoting Pattillo v. Pattillo, 414 So. 2d 915, 917 (Ala. 1982)) ("The purpose
of the division of marital property is to give 'each spouse the value of [his
or her] interest in the marriage.' ").
When deciding whether to award a spouse an interest in the
retirement benefits of the other spouse, a trial court is guided by the same
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factors relating to the overall division and distribution of the marital
estate. See § 30-2-51(b). The court can consider the source of the
retirement benefits; any contributions, financial or otherwise, that the
spouse of the retiree made toward the accumulation of those benefits; any
debts or liabilities owed by the retiree and the spouse under the divorce
judgment or otherwise; the age, health, future prospects, and ability to
earn of the retiree and the spouse; the cause of the breakdown of the
marriage; and any other factor weighing on the determination of the
equities of the case. See Kline v. Kline, [Ms. 2200164, Oct. 8, 2021] ___
So. 3d ___ (Ala. Civ. App. 2021). The term "retirement benefits" includes
a party's interest in a retirement account. See § 30-2-51(b)(1).
Based on its consideration of the evidence and its own independent
weighing of the evidence, the trial court could have determined that it
would be inequitable to award the wife any portion of the husband's IRA.
In addition to the evidence indicating that the wife had treated her own
retirement payout as her separate property, some evidence in the record,
although disputed, indicates that the wife had long separated herself
financially from the husband before the trial, and one view of the
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evidence indicates that the wife had abandoned the family and had
assumed a relationship with another man, whom she described as her
fiancé. Furthermore, the evidence was undisputed that the husband had
retired in 2018 and that his sole source of income was $2,000 per month
in Social Security disability benefits. The trial court could have
determined that the husband, who was 60 years old at the time of the
trial and evidently disabled, would be depending on his IRA and Social
Security disability benefits to support himself for the remainder of his
life. Although the wife testified that she could not work, the trial court
could have disbelieved her testimony and determined that she could earn
sufficient funds to support herself. Additionally, the trial court did not
award the husband any child support, so his IRA and Social Security
disability benefits would also be needed to support the parties' minor
children, at least until they reached the age of majority. The wife
presented almost no evidence of any nonfinancial contributions to the
marriage. At one point, the husband testified that the wife had cared for
the parties' children while he was working a great deal of overtime, but
the trial court also heard evidence indicating that the husband had been
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the sole caretaker of the parties' minor children after the wife separated
from the family in October 2019 and that he would continue that role as
their sole custodian. Thus, the trial court could have discounted the
wife's nonfinancial contributions to the marriage.
The evidence as to the parties' personal property was limited. The
husband testified that the wife had withdrawn all the funds in their joint
checking account when she left the family in October 2019 and that she
had taken a 2010 Chevrolet Camaro automobile, which was awarded to
the wife in the divorce judgment. In addition, the husband indicated that
the wife had taken all of her other personal property with her and that
she might have taken $6,000 worth of his custom fishing rods and fishing
reels as well. The specific nature of the personal property that the wife
allegedly took is not disclosed in the record, but the husband testified
that, over the years, the wife had purchased many luxury items with her
own funds, so the trial court could have inferred that the wife had
retained those items. The wife specifically testified that she did not want
any interest in the salvageable automobiles and boat. The judgment
essentially provided that each party would retain the personal property
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in his or her possession. Given the scant evidence on this point, the
record does not indicate that the trial court abused its discretion by
dividing the parties' personal property as it did.
Finally, the trial court did not abuse its discretion by denying the
wife periodic alimony. In her postjudgment motion, the wife argued to
the trial court that it had erred in denying her "alimony" because, she
asserted, she was not working, she did not have a sufficient estate to
provide for herself, and the parties had been married for more than 29
years at the time of their separation. We infer that by making that
argument, the wife was referring to periodic alimony, which is an
allowance for future support, as opposed to alimony in gross, which is "a
monetary award intended to settle the parties' property rights in the
marital estate." Jones v. Jones, [Ms. 2200988, June 30, 2022] ___ So. 3d
___, ___ (Ala. Civ. App. 2022). On appeal, the wife reiterates the
arguments she made in her postjudgment motion, citing Ala. Code 1975,
§ 30-2-57, which governs solely periodic and rehabilitative alimony and
not alimony in gross. In her brief, the wife mentions alimony in gross, in
passing, but she does not develop any argument that she should have
15 2200969
been awarded alimony in gross, see May v. May, 292 So. 3d 385, 388 (Ala.
Civ. App. 2019) (stating that this court will not consider an undeveloped
argument as a basis for reversing a judgment), which argument this court
could not have considered because any alleged error in failing to award
alimony in gross was not first raised in the trial court. See Andrews v.
Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992) ("This Court cannot
consider arguments raised for the first time on appeal; rather, our review
is restricted to the evidence and arguments considered by
the trial court."). In response to the argument the wife made to the trial
court and now makes to this court on appeal -- that she should have been
awarded periodic alimony -- the wife testified that, at the time of the trial,
she was cohabiting with her fiancé, who, she said, was financially
supporting her. Under Ala. Code 1975, § 30-2-55, alimony is not payable
when a former spouse is cohabiting with another adult individual in that
type of relationship.
For the foregoing reasons, the judgment of the trial court is
affirmed.
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Edwards, Hanson, and Fridy, JJ., concur.
Thompson, P.J., dissents, with opinion.
17 2200969
THOMPSON, Presiding Judge, dissenting.
The record contains disputed evidence with regard to the marriage
of Anjanette Anderson ("the wife") and William Anderson ("the
husband"), such as who contributed to the purchase of the marital
residence and the parties' level of commitment to the marriage in the last
few years preceding the divorce. However, undisputed evidence was
presented that the parties had been married for 29 years and that, until
the parties separated, the wife had lived in the marital residence and had
helped to care for the parties' two minor children. Additionally,
undisputed evidence was presented indicating that the wife could no
longer work in her chosen profession and that she was dependent on
another for financial support and health insurance.
"[T]he judgment of a trial court following an ore tenus proceeding is presumed to be correct and will not be reversed absent plain and palpable error. Hamby v. Hamby, 575 So. 2d 580 (Ala. Civ. App. 1991). Further, matters involving alimony and property settlement incident to divorce are within the sound discretion of the trial court and will not be disturbed on appeal except where such discretion was palpably abused. Kelley v. Kelley, 579 So. 2d 1362 (Ala. Civ. App. 1991). The issues concerning alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion. Montgomery v. Montgomery, 519 So. 2d 525 (Ala. Civ. App. 18 2200969
1987). The property division need not be equal, but must be equitable [in light of the evidence], and a determination of what is equitable rests within the broad discretion of the trial court. Daugherty v. Daugherty, 579 So. 2d 1377 (Ala. Civ. App. 1991); Kelley, supra."
Parrish v. Parrish, 617 So. 2d 1036, 1038 (Ala. Civ. App. 1993). It is well
established that a property division "that favors one party over the other
is not in and of itself an abuse of discretion." See Boykin v. Boykin, 628
So. 2d 949, 952 (Ala. Civ. App. 1993)(citing Jordan v. Jordan, 547 So. 2d
574 (Ala. Civ. App. 1983)). However, a property division that heavily
favors one party over another at the end of a lengthy marriage
necessitates careful scrutiny of the facts to ensure that the property
division is equitable.
After considering the evidence presented, I cannot conclude that the
property division in this case is equitable. "The purpose of a property
settlement in a divorce action is to give 'each spouse the value of [his or
her] interest in the marriage.' Pattillo v. Pattillo, 414 So. 2d 915, 917
(Ala. 1972)." Spuhl v. Spuhl, 120 So. 3d 1071, 1075 (Ala. Civ. App. 2013).
In Adams v. Adams, 778 So. 2d 825 (Ala. Civ. App. 2000), the trial court
awarded the wife approximately 16% of the value of the marital property
19 2200969
and the husband approximately 84% of the value of the marital property.
This court held "that the property award to the wife [was] so
disproportionate as to be inequitable" and reversed the judgment. 778
So. 2d at 827.
In this case, after a 29-year marriage, the wife was awarded a 2010
Chevrolet Camaro automobile, her remaining retirement funds, and her
personal property, the total value of which constitutes less than 10% of
the value of the marital property. The husband was awarded a 2014
Chevrolet Silverado automobile, a 2004 GMC Yukon Denali automobile,
the marital residence with equity in the amount of $83,000, his
retirement account in the amount of $552,000, and his personal property.
In my opinion, the trial court's failure to award the wife any part of the
equity in the marital residence or the husband's retirement account -- the
two largest assets in the marriage valued at approximately $635,000 --
resulted in an inequitable division of marital property. See Stewart v.
Stewart, 62 So. 3d 523, 530 (Ala. Civ. App. 2010)(holding that property
division was inequitable when the husband was awarded $46,000 in the
marital property and the wife was "essentially awarded nothing"). Like
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the wife in Stewart, the wife in this case was "essentially awarded
nothing" from a 29-year marriage; therefore, I would reverse the portion
of the trial court's judgment addressing property division and alimony
and would remand the case to allow the trial court to enter an equitable
judgment.1
Additionally, I cannot agree with the main opinion that the trial
court could infer that the wife disclaimed any interest in the equity in the
marital residence from her statement that she would give any funds she
received from her interest in the marital residence to the children. Unlike
her statement that she did not "want" the salvageable vehicles or the
boat, which indicates that she did not claim any interest in those items,
the wife's statement about the marital residence indicates that she
1Although evidence was presented from which the trial court could have concluded that the wife was not entitled to periodic alimony, see § 30-2-55, Ala. Code 1975, evidence was also presented from which the trial court could conclude that the wife qualified for an award of alimony in gross, see § 30-2-57, Ala. Code 1975. Thus, reversal of the alimony award in light of its interrelationship to the property division is proper. See Powell v. Powell, 628 So. 2d 832, 834 (Ala. Civ. App. 1993)(recognizing that "funds paid into a retirement plan are an asset of the husband which may be considered by the court in effecting an equitable property division or an award of alimony in gross"). 21 2200969
believes that she does have an interest in that property. I cannot agree
that the wife's testimony that she would give the children any funds she
received from the equity in the marital residence negates "the value of
[her] interest in the marriage." Spuhl, 120 So. 3d at 1075.
For the foregoing reasons, I respectfully dissent.