Paulk v. Paulk

97 So. 3d 753, 2012 Ala. Civ. App. LEXIS 9, 2012 WL 29180
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 6, 2012
Docket2100345
StatusPublished
Cited by1 cases

This text of 97 So. 3d 753 (Paulk v. Paulk) 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
Paulk v. Paulk, 97 So. 3d 753, 2012 Ala. Civ. App. LEXIS 9, 2012 WL 29180 (Ala. Ct. App. 2012).

Opinion

BRYAN, Judge.

Charles Lance Paulk (“the husband”) appeals from a judgment entered by the Winston Circuit Court (“the trial court”) that divorced him from Vickie Gail Paulk (“the wife”). For the reasons set forth herein, we remand the cause with instructions to the trial court to clarify its judgment.

The wife filed a complaint for a divorce on January 9, 2009. In her complaint, she alleged that the parties had married on April 15, 2006, and that they had separated on December 6, 2008. The husband subsequently filed an answer to the wife’s complaint and a counterclaim for a divorce. There were no children born during the parties’ marriage, and the parties sought only a division of their property and debts. The trial court conducted an ore tenus hearing on June 24, 2010, but the transcript of that proceeding abruptly ends during the direct examination of the wife by her attorney after a discussion was held off the record. No other testimony was presented at an ore tenus hearing. On August 3, 2010, the wife filed a written summary of her testimony with the trial court, and, on October 7, 2010, the husband filed a written summary of his testimony with the trial court.

On October 26, 2010, the trial court entered a judgment divorcing the parties and dividing their real and personal property. Pursuant to that judgment, each party was awarded any real property that that party owned before the marriage and each party was assigned any indebtedness on the property that party was awarded. The husband was awarded all personal property that he owned before the parties married, and he was assigned responsibility for any indebtedness on that property. The wife was awarded the real property described as “the farm,” and all personal property located thereon. The wife was assigned any outstanding indebtedness on the farm, and both parties were assigned responsibility for any other debts in their names.

The husband filed a motion to alter, amend, or vacate the trial court’s judgment pursuant to Rule 59, Ala. R. Civ. P. The husband raised issues about certain items of personal property that were located at the farm, and he argued that the trial court had erred by failing to award him any interest in the farm. The trial court denied the husband’s postjudgment motion, and the husband timely appealed.

On appeal, the husband first argues that the trial court erred by restricting his ability to present ore tenus testimony.1 The husband specifically contends that the trial court erred by restricting his right to cross-examine the wife and by restricting his right to present evidence in support of his claim. In her brief on appeal, the wife argues that this court cannot consider these arguments because the husband failed to raise any objection before the [756]*756trial court regarding how the proceedings below were conducted. Indeed, our review of the record reveals that the husband failed to raise the arguments he now presents on appeal. It is well settled that this court cannot consider an argument that is raised for the first time on appeal. See Lewis v. Lewis, 958 So.2d 896, 899 (Ala.Civ.App.2006) (holding that the mother did not preserve for appellate review her argument that the trial court had erred by limiting the testimony she presented during trial because she did not object to the time limitation or request additional time in which to complete presentation of her evidence); and Davis v. Southland Corp., 465 So.2d 397, 402 (Ala.1985) (“Timely objection is a condition precedent to raising an error on appeal.”). Accordingly, we cannot consider these arguments on appeal.

Next, the husband argues that the trial court’s division of property was inequitable because it failed to award him any interest in the real property known as “the farm.” Before we begin our discussion of this issue, however, we must first determine our standard of review of the trial court’s judgment in light of the fact that the record indicates that the only ore tenus testimony presented to the trial court was a partial direct examination of the wife; the remainder of the evidence that was presented to the trial court was in the form of exhibits and written “testimony.”

This court was faced with a similar situation in Hospital Corp. of America v. Springhill Hospitals, Inc., 472 So.2d 1059, 1060-61 (AIa.Civ.App.1985). In that case, the trial court heard live testimony from one witness called by the plaintiffs; the plaintiffs did not finish their examination of that witness, and the defendants were not given an opportunity to cross-examine the witness. Id. at 1060. The case was then submitted on briefs, depositions, and exhibits filed with the trial court. Id. In discussing what standard of review should apply to the trial court’s judgment, we stated:

“We are aware of the cases holding that when the evidence is taken ore tenus before the trial court, or partly so, on review we grant the trial court a presumption of correctness. See, e.g., Jones v. Moore [295 Ala. 31], 322 So.2d 682 (Ala.1975); Air Movers of America, Inc. v. State National Bank, 293 Ala. 312, 302 So.2d 517 (1974); State v. Frazier, 222 Ala. 180, 131 So. 442 (1930); Penn v. Penn, 437 So.2d 1053 (Ala.Civ.App.1983); Nero v. Moore-Handley, Inc., 370 So.2d 1043 (Ala.Civ.App.1979). However, in each of these cases at least one witness was examined and cross examined orally before the trial court.
“The rationale behind the ore tenus rule has historically been that the trial court deserves a presumption of correctness when it is in a position to actually see and hear the testimony, observing firsthand the demeanor of the witnesses. Christian v. Reed, 265 Ala. 533, 92 So.2d 881 (1957); Steed v. Bailey, 247 Ala. 407, 24 So.2d 765 (1946); Barran v. Barran, 431 So.2d 1278 (Ala.Civ.App.1983).

Considering that the trial court heard only part of the testimony of one witness, including only a partial direct examination and no cross examination, and that the case was otherwise tried exclusively on the basis of numerous depositions and exhibits, we hold that the ore tenus rule does not apply. Consequently, no presumption of correctness will be accorded the trial court’s findings on the evidence, and this court will sit in judgment on the evidence as if it had been presented de novo. Smith v. Dalrymple, 275 Ala. 529, 156 So.2d 622 (1963); Lepeska Leasing Corp. v. State Department of Revenue, 395 So.2d 82 (Ala.Civ.[757]*757App. [1980) ], writ denied, 395 So.2d 85 (Ala.1981).”

Id. at 1060-61.

Accordingly, we will not apply the presumption of correctness that would usually accompany the trial court’s findings of fact that support its judgment dividing the parties’ marital property, see, e.g., Long v. Long, 824 So.2d 778, 781 (Ala.Civ.App.2001), because the divorce judgment in the present case was not based on ore tenus testimony. As we did in Hospital Corp. of America, supra, we will review the trial court’s judgment de novo.

The record indicates that the wife owned a home on a lake free of any mortgage indebtedness before the parties married and that the husband owned a home, a rental house and lot, and a vacant lot before the parties married. The record indicates, however, that the husband sold his home during the parties’ marriage.

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Bluebook (online)
97 So. 3d 753, 2012 Ala. Civ. App. LEXIS 9, 2012 WL 29180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paulk-v-paulk-alacivapp-2012.