Cynthia Lynn Lowery v. Lilton Cary Lowery.

72 So. 3d 701, 2011 Ala. Civ. App. LEXIS 126, 2011 WL 1820106
CourtCourt of Civil Appeals of Alabama
DecidedMay 13, 2011
Docket2090849
StatusPublished
Cited by6 cases

This text of 72 So. 3d 701 (Cynthia Lynn Lowery v. Lilton Cary Lowery.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cynthia Lynn Lowery v. Lilton Cary Lowery., 72 So. 3d 701, 2011 Ala. Civ. App. LEXIS 126, 2011 WL 1820106 (Ala. Ct. App. 2011).

Opinion

PITTMAN, Judge.

Cynthia Lynn Lowery (“the wife”) appeals from a judgment divorcing her from Lilton Cary Lowery (“the husband”) that, among other things, awarded the parties joint legal and physical custody of their children, divided the parties’ marital property, and did not award the wife any type of alimony or an attorney fee.

The parties were married in May 1992; by the time of trial in April 2010, the parties’ two sons and one daughter were 17, 14, and 15 years old, respectively. The parties separated in June 2009, and during the following month the wife filed a divorce complaint seeking, among other things, custody of the children, child support, and alimony. The wife alleged that she had been a “stay at home” mother and the primary caregiver for the children throughout the marriage and that the husband had been the family’s sole breadwinner, and, therefore, she asserted, she needed pendente lite support until a divorce judgment could be entered. The trial court entered a pendente lite order that awarded physical custody of the children to the wife, instructed the husband to continue making all necessary payments to maintain the parties’ status quo until trial, and ordered the parties to refrain from negative behavior and derogatory remarks around the children.

The husband filed an answer in which he admitted most of the wife’s allegations, but he disagreed with the wife’s request that she be awarded primary physical and legal custody of the children; instead, the husband specifically requested that the trial court award joint legal and physical custody of the children to the parties. An initial order divorcing the parties was entered on January 6, 2010; all child-custody, support, and property issues were reserved for trial. The trial court conducted an ore tenus proceeding on April 29, 2010, at which the trial court received evidentia-ry exhibits and heard testimony from the husband and the wife.

The wife testified that she had been a “stay at home” mother and the primary caregiver of the parties’ children, responsible for taking the children to and from school and extracurricular activities, scheduling their medical and dental appointments, and handling the household while the husband worked. She noted that the husband had been employed for many years by his family, who owned a local [703]*703automobile-sales business, but that in 2003 or 2004 the husband had begun working as a real-estate agent for a local realty company. The wife also testified that, during the marriage, the husband had purchased several parcels of property as investments, and she stated that she wanted a portion of the equity in those parcels.

The wife noted that the husband had failed to abide by the pendente lite order in that he had allowed both the marital residence (where he had been residing during the separation) and the Berkshire residence (where the wife and the children had been residing during the separation) to go into foreclosure because he had not made the applicable mortgage-loan payments; additionally, he had allowed the wife’s motor vehicle to be repossessed because he had not made the car-loan payments for that vehicle. She testified that although the husband had provided her with a replacement motor vehicle, that vehicle had also been repossessed because the husband had failed to make the payments associated with that vehicle. The wife noted that the husband’s father had given her a 1999 model Dodge Stratus automobile so that she would have transportation pending the divorce. The wife testified that, although she had attempted to negotiate with the lending authorities to avoid foreclosure, she had not worked outside the home during the marriage except briefly on two occasions and did not, therefore, have a credit history sufficient to support an extension of credit.

The wife also stated that she had been able to find part-time, minimum-wage employment with the local Department of Human Resources as a case aide. The wife offered a CS-41 “Child-Support-Obligation Income Statement/Affidavit” form indicating that her monthly income was $737, or $8,844 per year. She testified that she had been unable to rent an apartment or to purchase a motor vehicle with her limited income and that she needed support from the husband in order to be able to meet her monthly obligations and to provide a residence for the children.

The wife testified that, during the marriage, the husband had been a daily drinker of alcoholic beverages; she noted that he had regularly become intoxicated at least twice a week. She stated that he had been arrested on two separate occasions for driving under the influence of alcohol, once before and once during the parties’ separation. She testified that, despite his heavy drinking, until the parties had separated he had always paid the family’s bills and had been a good father. Although the husband had been able to move back in with his parents after the foreclosures, the wife testified that she had been forced to rent a room in a friend’s house following her eviction from the Berkshire residence. She stated that because the room she rented on a monthly basis had limited floor space, she had allowed the parties’ two sons to live with the husband. The wife testified that she and the daughter lived and slept together in the room she rented but that she had been trying to find an apartment so all the children could live together as a family again. The wife asked the trial court to award her custody of the children and to order the husband to pay periodic alimony to allow her the opportunity to establish a residence where she and the children could live.

The husband testified that not only had he defaulted on the mortgage secured by the marital residence, he also had suffered foreclosure on the Berkshire residence, an investment property where he had allowed the wife and the children to live during the parties’ separation. The husband also testified that, after foreclosure proceedings had been brought as to both the marital residence and the Berkshire residence, he [704]*704had offered the wife and the children one of his parents’ properties, but he then admitted that he did not have his parents’ permission to let them live rent-free at that location. He noted that he owned an interest in TTown Properties, LLC (“TTown”), which owned two condominium units in Tuscaloosa. At the time of trial, those units were listed for sale at $65,000 each, but they had remained unsold for the preceding year. In addition, TTown owned two rental houses in Albertville; those properties had been listed for sale at $249,900, but just before trial a tornado had destroyed both houses. The husband insisted that there was no equity in those properties, but he admitted that those properties had been insured for a total of $200,000. The husband testified that he had conveyed his interests in two other real-estate-investment companies, Willow Properties, LLC, and Mountain Group, LLC, back to the other investment members; he testified that he had received no payment for those interests because the properties owned by these companies were already in foreclosure at the time that he relinquished his interests.

Moreover, the husband testified that the parties owed at least $71,000 in federal income taxes that had not been paid during 2007, 2008, and 2009. The husband also stated that he planned to file for bankruptcy protection as soon as he could save the money needed to pay the legal fees associated with doing so. Despite his financial problems, the husband requested that he be awarded joint legal and physical custody of the children.

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Cite This Page — Counsel Stack

Bluebook (online)
72 So. 3d 701, 2011 Ala. Civ. App. LEXIS 126, 2011 WL 1820106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cynthia-lynn-lowery-v-lilton-cary-lowery-alacivapp-2011.