Rel: September 5, 2025
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 SPECIAL TERM, 2025 _________________________
CL-2024-0875 _________________________
Kendra Satterwhite Smith
v.
Anthony Thomas Smith
Appeal from Shelby Circuit Court (DR-19-900092)
EDWARDS, Judge.
In February 2019, Kendra Satterwhite Smith ("the wife") filed in
the Shelby Circuit Court ("the trial court") a complaint seeking a divorce
from Anthony Thomas Smith ("the husband"). The husband filed an
answer and a counterclaim for a divorce. Although the trial court CL-2024-0875
initially set the trial for March 30, 2020, the trial court continued the
trial in compliance with our supreme court's administrative orders
respecting the COVID-19 pandemic. The trial court reset the trial 14
times between March 2020 and April 25, 2023. The trial was commenced
on April 25, 2023, and was continued to and concluded on July 25, 2023.
On May 23, 2024, the trial court entered a judgment divorcing the
parties. Among other things, the judgment awarded the husband the
marital residence, which the husband had owned before the parties
married in November 2015. The trial court determined that the marital
residence had appreciated over the term of the marriage in the amount
of "Two Hundred and Seventy-Six Thousand Three Hundred Dollars"
($276,300), that the wife was entitled to a "Forty Percent (40%) share of
the appreciation in equity in the marital residence," and that the 40%
share to which the wife was entitled amounted to "One Hundred Thirty
Eight One Hundred and Fifty Dollars ($106,920.00)." 1 However, the trial
court declared that, because the wife had removed $99,000 from a joint
1We recognize that the "One Hundred Thirty Eight One Hundred
and Fifty Dollars" and the $106,920 amounts stated in the judgment regarding the 40% share of the increase in the equity of the marital residence due to the wife conflict significantly and that neither amount is 40% of $276,300. 2 CL-2024-0875
bank account owned by the parties at the time of the parties' separation, 2
had "sold her pre-marital residence and kept all proceeds therefrom in
her separate [bank] account, and [had] kept all of the proceeds from the
sale of her [late] brother's [house] without apply[ing] any of the proceeds
to the marital assets," the wife's share of the equity already had been
realized. The trial court further declined to award the wife any portion
of the husband's retirement account, explaining that
"the value of the [h]usband's Southern Company Employees Savings Plan from the date of the parties' marriage until the date of the filing of the complaint for divorce in this matter increased by Fifty-Five Thousand Two Hundred and Five and 92/100 Dollars ($55,205.92). Due to the brevity of the marriage, and to the excess of marital property retained by the [w]ife during the marriage as established in the preceding paragraph [regarding the marital residence], the wife is not entitled to any portion of the [h]usband's retirement account."
The trial court also awarded the wife all rights to her real-estate business
and awarded each party any accounts maintained in his or her sole name.
The judgment made each party responsible for his or her own attorney
fees.
2Testimony in the record indicates that the joint bank account had
been depleted by the time of the trial by the wife's removal of $99,000 and the husband's removal of the remaining funds in that account. 3 CL-2024-0875
The wife filed a timely postjudgment motion directed at the
judgment. In that motion, among other arguments not pertinent to the
issues in this appeal, she argued that the trial court had made an error
in its calculation of her 40% share of the increase in the equity of the
marital residence; she correctly contended that "[f]orty percent (40%) of
was $276,300.00 [(the amount the trial court calculated to be the increase
in the equity in the marital residence)] is $110,520.00, not $106,920.00."3
She further argued that the trial court had erroneously set off certain
amounts against the award to her of a share of the increased equity in
the marital residence. Specifically, she contended that she had been
entitled to the $99,000 she had withdrawn from the joint bank account
because that amount was half of the funds in that account at that time
and that the trial court had "erroneously [determined] that [she had] kept
all proceeds from the sale of her pre-marital residence and her [late]
brother's [house] without applying any of the proceeds to the marital
assets." The wife contended that she had not received any of the proceeds
from the sale of her late brother's house. She complained that the trial
3The wife made no argument concerning the striking difference between the "One Hundred Thirty Eight One Hundred and Fifty Dollars" and the $106,920 amounts recited in the judgment. 4 CL-2024-0875
court had failed to recognize "significant contributions" she had made
from her separate funds toward the marital residence, including, she
stated, paying mortgage payments, purchasing furnishings, paying
utility bills, and funding maintenance. She also stated that "[t]he correct
figure [of her share of the marital residence], based on a fifty percent
(50%) share of the appreciation, should be $138,150.00." 4 The wife
further argued that the trial court should have awarded her one-half of
the increase in the value of the husband's retirement account and that
she should have been awarded a reasonable attorney fee. After a hearing,
the trial court denied the wife's postjudgment motion, and the wife timely
appealed.
The only witnesses at the trial were the husband and the wife. The
wife testified that the parties had married on November 4, 2015, and that
they had separated in February 2019, shortly before she commenced her
divorce action. The wife admitted that she and the husband had been
married for only three years and three months before she commenced her
divorce action. She testified that she had sold the house that she had
4We note that this amount is the amount reflected in the written
value of the wife's 40% share of the increased equity in the marital residence contained in the judgment. 5 CL-2024-0875
lived in before the marriage and that she had received between $7,000
and $8,000 in proceeds, all of which she had deposited into her separate
bank account. She also testified that her earnings as a real-estate agent,
which, she said, were approximately $2,200 per month during the
marriage, had also been placed into her separate bank account and not
into the parties' joint bank account, which had been established in
December 2017, shortly after the birth of the parties' child. The wife
admitted that none of the funds that had been held in the joint bank
account in February 2019 had been supplied by her.
The wife admitted that she had sold real estate during the marriage
and after the parties' separation, but, she said, "not that often." She
admitted that her 2022 income-tax return reflected that her income that
year was $74,000. According to the wife, she had used her employment
income to pay for groceries and for everything required by her two older
children from a previous relationship. She also said that she had used
her income to pay for her work expenses. She testified that she had paid
the mortgage payment on the marital residence "before" but admitted
that the husband usually made that payment. She further testified that
she had expended her personal funds on "furnishings" for the marital
6 CL-2024-0875
residence, but she failed to elaborate on what furnishings she had
purchased for the marital residence.
According to the wife, in 2016, the marital residence had been
appraised at $382,000. She testified that, based on a market analysis
that she had conducted, the marital residence was, as of the time of trial,
valued at $658,300. Thus, the wife explained, the marital residence had
appreciated in value in the amount of $276,300, and she requested that
she be awarded one half of that amount, or $138,150. She also requested
one-half of the increased value of the husband's retirement account,
which, she said, totaled $55,205.
The husband testified that he had purchased the marital residence
in October 2013, before he met the wife. He said that he still owed
$190,000, "give or take $10,000," on the mortgage associated with the
marital residence. The husband conceded that the marital residence had
appreciated in value and that the marital residence was valued at
$658,300 "give or take"; he stated that it could be worth $550,000 or
$650,000 but not $750,000. He testified that he did not believe that the
wife was entitled to any of the equity in the marital residence, because,
7 CL-2024-0875
he said, he had owned it before the marriage and because she had not
contributed financially to the parties' marriage.
According to the husband, his yearly income ranged between
$90,000 and $100,000. He later testified that he had earned $103,000
through his employment in the previous year and that he also earned a
yearly bonus, which, he said, he usually received each March; he said
that he had received a $16,000 bonus in March 2023. He also testified
that the wife had not provided any of the funds in his retirement account,
which, he said, had been instituted "long before" the parties' marriage.
Thus, he stated, he did not believe that she was entitled to any portion of
his retirement account.
The husband opined that the joint bank account was not marital
property. He explained that he had initially held a separate bank
account from the wife but had opened the joint bank account after the
birth of the parties' child in 2017. He stated that the funds contained in
the joint bank account were solely his, were derived from his income, and
included $76,000 that he had borrowed from his parents in 2016. He also
said that the joint bank account contained approximately $41,000 of the
profit that he had realized from the sale of a house that he had purchased
8 CL-2024-0875
and renovated. 5 He testified that the wife had not assisted in the
renovation of that house. Like the wife, he testified that neither the
proceeds from the sale of the wife's premarital residence nor her
employment income been placed into the joint bank account. He said that
he had never asked the wife what she did with the income she earned
from her real-estate sales.
The testimony regarding the house that had been owned by the
wife's late brother indicates that the wife's brother had passed away and
that the husband had purchased his house at a foreclosure sale on the
courthouse steps. The husband testified that
"it was told to me her parents had invested a lot of money in that house, redid it, whatnot, it was an older home. The house went for sale here on the courthouse steps in foreclosure. I purchased that house cash money, fifty-eight thousand dollars roughly. They compensated me back, gave me my money back for that house, and in turn sold it for a profit of according to tax records around ninety-two thousand dollars, eighty, ninety thousand dollars profit they recovered due to that."6
5Specifically, the husband testified that he had purchased a house
for $176,000 at an auction held on "the courthouse steps" and that he had sold the house, after renovating it, for $217,000.
6We are uncertain whether the foreclosure sale took place before
the death of the wife's late brother, when he owned the house, or whether it took place after his death, when the house was owned by either his estate or one or more of his heirs. The record also fails to reflect exactly 9 CL-2024-0875
The husband presented no evidence indicating that he had ever held an
ownership interest in the late brother's house or what, if any, agreement
he may have had with the wife or her parents regarding his purchase of
the late brother's house at the foreclosure sale and the subsequent sale
of that house. However, the husband stated that he had not received any
of the profit on the sale of the wife's late brother's house and, specifically,
that none of the proceeds from its sale had been placed into the joint bank
account.
When asked if she had realized any proceeds from the sale of her
late brother's house, the wife testified that she "wasn't in that transition
[sic]."7 She said that her late brother's house had not been titled in her
name but had instead been titled in the name of her parents. She
explained that her mother had kept the proceeds from the sale of that
house.
when the husband assisted in the purchase of the late brother's house, when the husband was reimbursed for his expenditure, and when the house was ultimately sold.
7We question whether the wife actually testified that she had not
been involved in the "transaction" that resulted in the sale of her late brother's house. 10 CL-2024-0875
The wife testified that she had separated from the husband because
she was worried about her safety and the safety of the parties' child. She
explained that the environment in the marital residence had been "very
unpleasant" and "controlled, mood swings, not healthy for [the child] to
be around." She indicated that the husband had spoken to her in a
negative way and that "his temperament had started to rise again."
On appeal, the wife argues that the division of the marital property
was inequitable. In her brief, the wife indicates that the marital estate
comprised the $200,000 contained in the joint bank account, the $276,300
appreciation in the value of the marital residence, and the $55,205
appreciation in the value of the husband's retirement account, which
total $531,505. She complains that the trial court incorrectly calculated
her 40% share of the $276,300 in increased equity in the marital
residence, which, she said, should be $110,520 and not $106,920; she
further contends that she was entitled to a greater share of the
appreciation in the value of the marital residence than the 40% the trial
court awarded. She further argues that the trial court should not have
considered the proceeds she received from the sale of her premarital
residence or the alleged proceeds from the sale of her late brother's house,
11 CL-2024-0875
which she testified she had not received, in determining that she had
"realized" her share of the increased equity in the marital residence. In
addition, she complains that she was entitled to the $99,000 that she had
withdrawn from the joint bank account as an equal division of a marital
asset. She also contends that she was entitled to one-half of the $55,205
appreciation in the value of the husband's retirement account. Finally,
she contends that the trial court should have awarded her a reasonable
attorney fee.
We begin our analysis by observing the oft-stated principle that
" ' "[p]roperty divisions are not required to be equal, but must be equitable
in light of the evidence, and the determination as to what is equitable
rests within the sound discretion of the trial court." ' " Ex parte Durbin,
818 So. 2d 404, 408-09 (Ala. 2001) (quoting Morgan v. Morgan, 686 So.
2d 308, 310 (Ala. Civ. App. 1996), quoting in turn Duckett v. Duckett, 669
So. 2d 195, 197 (Ala. Civ. App. 1995)). The wife concedes that a trial court
dividing the property of the parties upon a divorce "'should consider
several factors, including the length of the marriage; the age and health
of the parties; the future prospects of the parties; the source, type, and
value of the property; the standard of living to which the parties have
12 CL-2024-0875
become accustomed during the marriage; and the fault of the parties
contributing to the breakup of the marriage.'" Yokley v. Yokley, 231 So.
3d 355, 360 (Ala. Civ. App. 2017) (quoting Golden v. Golden, 681 So. 2d
605, 608 (Ala. Civ. App. 1996)). Because "'[m]atters of property division
rest soundly within the trial court's discretion[,] its determination
regarding those matters will not be disturbed on appeal unless its
discretion was plainly and palpably abused.'" Id.
The trial court's judgment is, in a word, unclear regarding the
amount that the wife is due as her share of the equity in the marital
residence. According to the terms of the judgment, the wife is entitled to
either 40% of $276,300, which is, if correctly calculated, $110,520; "One
Hundred Thirty Eight One Hundred and Fifty Dollars" ($138,150, which
is one half of $276,300); or $106,920, which is the numerical statement of
the amount stated in the judgment. Although the wife complained in her
postjudgment motion that the trial court's percentage calculation in the
judgment was incorrect, the trial court failed to issue a corrected
judgment to clear up the miscalculation or to address the ambiguity in
the award. Thus, we must reverse the judgment and remand the case to
the trial court for it to indicate clearly the share of the equity to which
13 CL-2024-0875
the wife is entitled. See Shipp v. Shipp, 435 So. 2d 1298, 1299 (Ala. Civ.
App. 1983) (reversing a divorce judgment because a provision within the
judgment was ambiguous and uncertain). However, because the trial
court also determined that the wife's share of the equity, whatever
amount that might be, had been realized through her withdrawal of the
$99,000 from the joint bank account, her retention of the proceeds derived
from the sale of her premarital residence, and her alleged retention of an
unspecified amount of proceeds from the sale of her late brother's house,
and because those same issues will likely recur when the trial court
considers entering a new judgment on remand, we address, in part, the
wife's arguments relating to those issues.
The fact that the husband created a joint bank account held jointly
by him and the wife, coupled with the reasonable inference, based on the
husband's testimony that his income was placed into the joint bank
account, that the husband paid his expenses, including the mortgage
payment on the marital residence, from the joint bank account, supports
a conclusion that the joint bank account is marital property subject to
division. See Huckabee v. Huckabee, 544 So. 2d 170, 172 (Ala. Civ. App.
1989) (determining that "money received from [an oil] lease [on property
14 CL-2024-0875
owned by the husband before the marriage] was placed in a certificate of
deposit jointly owned by the parties" and stating that, "[u]nder these
circumstances, the source of marital property is not controlling"); Isham
v. Isham, 464 So. 2d 109, 111 (Ala. Civ. App. 1985) (affirming the award
to a wife of certain portions of certificates of deposit and money-market
accounts because they had been "taken in the joint names of the parties"
and stating that "[i]t has been held that the trial court is under no
requirement to attempt to set aside gifts or inheritances when these
assets become the property of both spouses"). Indeed, the trial court
references the joint bank account as being a "marital account," indicating,
perhaps, that it considered the joint bank account to have been a marital
asset. In contrast, the judgment appears to conclude that the wife was
not entitled to any portion of the funds contained in the joint bank
account at the time of the separation of the parties and that the entirety
of the $99,000 the wife removed from the joint bank account should serve
to satisfy, at least in part, the portion of the increase in the equity of the
marital residence to which the trial court determined that the wife was
entitled. Certainly, the evidence before the trial court supports the
conclusion that the joint bank account had not, in fact, been funded by
15 CL-2024-0875
joint contributions from the parties during the marriage. Instead, the
husband testified that the funds in the joint bank account were provided
solely by him, and the wife admitted that she had not placed any money
that she had earned from her employment or the proceeds that she had
received from the sale of her premarital residence into the joint bank
account, which, notably, did not exist at the time she sold her premarital
residence. Thus, the trial court could have, based on the source of the
funds contained in the joint bank account or the relatively short duration
of the marriage, both of which are factors relevant to the division of
property upon a divorce, reasonably determined that the funds in the
joint bank account should not be equally divided between the parties.
Because we are reversing the trial court's judgment based on the
ambiguity and uncertainty in the amount of the increase in the equity in
the marital residence actually due to the wife, we instruct the trial court,
on remand, as part of its clarification of the property division in the
judgment, to consider the joint bank account as marital property and to
determine the portion of the account, if any, to which the wife is entitled.
On appeal, the wife further contends that the trial court erred by
setting off against the equity to which she was entitled from the marital
16 CL-2024-0875
residence the proceeds that she received from the sale of her premarital
residence and any unspecified proceeds that trial court determined that
she received from the sale of her late brother's house. The wife's
premarital residence was clearly her separate property at the time of the
marriage. See Nichols v. Nichols, 824 So. 2d 797, 802 (Ala. Civ. App.
2001) ("The separate estate of the parties in a divorce proceeding includes
property owned prior to the marriage .…"). A party's separate property
may not be considered in a division of the marital estate. See Ex parte
LaMoreaux, 845 So. 2d 801, 806 (Ala. 2002) (explaining that property
acquired by gift or through inheritance by a spouse during a marriage
retains its status as separate property of the recipient spouse unless the
property is used for the common benefit of the marriage and that, unless
it is used for the common benefit of the marriage, the property may not
be considered in the division of the parties' property); and Hull v. Hull,
887 So. 2d 904, 908-09 (Ala. Civ. App. 2003) (reversing a judgment
because the trial court considered in its division of property a wife's
separate property that had not been used for the common benefit of the
parties and stating that "the trial court was precluded by [Ala. Code
1975,] § 30-2-51(a)[,] from considering [that separate property] at all in
17 CL-2024-0875
dividing the parties' marital property" (emphasis added)). Although the
wife's decision to retain the proceeds she received from the sale of her
premarital residence in her separate bank account could have
maintained the status of that money as her separate property such that
it could not be considered in the trial court's division of marital property,
see Ala. Code 1975, § 30-2-51(a) ("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 property, or income produced by the property, has
been used regularly for the common benefit of the parties during their
marriage."), the wife testified that she had used money from her separate
bank account to pay for "all the groceries," i.e., that she regularly paid for
certain of the parties' living expenses out of her separate bank account.
Thus, at the trial court's discretion, the wife's separate bank account
could have been considered in the division of property. See Morgan v.
Morgan, 322 So. 3d 531, 540 (Ala. Civ. App. 2020) (explaining that
"[n]othing in the language of § 30-2-51(a) indicates that property
acquired by one spouse before marriage or property acquired through
inheritance or gift is transmuted into marital property by its use for the
18 CL-2024-0875
common benefit of the parties" and instead that a trial court may, in its
discretion, consider such property in its division of the marital estate);
see also Ex parte Durbin, 818 So. 2d at 408, and Ex parte Drummond,
785 So. 2d 358, 362 (Ala. 2000). We question how the trial court could
have considered the wife's separate bank account in its division of the
marital property, however, because the record contains no indication of
the value of that account at the time of the parties' separation or at the
time of the trial. If the trial court concluded that the wife's separate bank
account should not be considered in the division of marital property, the
trial court should not have considered the proceeds from the sale of the
wife's premarital residence in making its division of property. See Ex
parte LaMoreaux, 845 So. 2d at 806; Hull, 887 So. 2d at 908.
As the wife argues, the trial court's decision to offset the wife's
interest in the increase in the equity in the marital residence by the
proceeds from the sale of her late brother's house is error. The husband
presented no evidence that he held an ownership interest in that house
or that the wife had realized any profit or had retained any proceeds from
the sale of that house. Instead, he testified that he had been told that
the wife's parents had put a lot of money into that house, that "they" had
19 CL-2024-0875
reimbursed him the $58,000 he had used to purchase the house at the
foreclosure sale, and that "they" had sold it for a profit. Thus, the
husband testified that the wife's parents -- not the wife -- sold the late
brother's house for a profit. The wife testified that she had not held any
ownership interest in the late brother's house and that her mother had
retained any proceeds or profit realized from the sale; the record contains
no contrary evidence. We recognize that, under the ore tenus rule, a trial
court may disbelieve or discount all or part of the testimony of a witness.
See Williams v. Williams, 905 So. 2d 820, 826 (Ala. Civ. App. 2004)
(quoting Glazner v. Glazner, 807 So. 2d 555, 559 (Ala. Civ. App. 2001))
("The presumption of correctness under the ore tenus rule 'is based on
the trial court's unique position to observe the witnesses and to assess
their demeanor and credibility.' "). However, the trial court may not
indulge in an inference that is not fairly deducible from the evidence
presented. Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So. 2d 1220,
1224 (Ala. 1992) (explaining that "[a]n 'inference' is a reasonable
deduction of fact, unknown or unproved, from a fact that is known or
proved" and that "[a]n inference must be based on a known or proved
fact"). Because the record contains no evidence indicating that the wife
20 CL-2024-0875
received any proceeds from the sale of her late brother's house, the trial
court erred in using some unspecified amount of proceeds from the sale
of the late brother's house to offset the wife's share of the increase in the
equity in the marital residence. On remand, the trial court may not
include any unspecified share of proceeds realized from the sale of the
late brother's house in fashioning its property division.
In conclusion, we reverse the judgment of the trial court relating to
the award to the wife of a share of the increased equity in the marital
residence, and we remand the cause with instructions that the trial court
specify the exact amount of the equity in the marital residence to which
the wife is entitled. In addition, the trial court should determine whether
the wife's separate bank account should be included in the division of the
parties' property and should adjust the property division as necessary
based on that conclusion. Because we have also determined that the trial
court may not offset the proceeds the wife received from the sale of her
late brother's house and because we have instructed the trial court to
consider what portion, if any, of the funds held in the joint bank account
should be awarded to the wife, the trial court is permitted upon remand
to reconsider all aspects of the property division and to adjust the equities
21 CL-2024-0875
based upon the evidence contained in the record. We therefore pretermit
consideration of the wife's arguments relating to the overall inequity of
the property division, including her arguments relating to her request for
an award of a portion of the husband's retirement account and the trial
court's decision not to award her an attorney fee.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Moore, P.J., and Hanson, Fridy, and Bowden, JJ., concur.