Walding v. Walding

23 So. 3d 684, 2009 Ala. Civ. App. LEXIS 126, 2009 WL 1262310
CourtCourt of Civil Appeals of Alabama
DecidedMay 8, 2009
Docket2080054
StatusPublished
Cited by1 cases

This text of 23 So. 3d 684 (Walding v. Walding) 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
Walding v. Walding, 23 So. 3d 684, 2009 Ala. Civ. App. LEXIS 126, 2009 WL 1262310 (Ala. Ct. App. 2009).

Opinion

MOORE, Judge.

Henry Dan Walding (“the husband”) appeals from the Henry Circuit Court’s judgment amending the judgment divorcing him from Emma Carol Walding (“the wife”) following this court’s reversal of the parties’ original divorce judgment insofar as it divided the parties’ property. We affirm in part and reverse in part.

Facts and Procedural History

This is the second time these parties have been before this court. See Walding v. Walding, 983 So.2d 1128 (Ala.Civ.App.2007). In Walding, the husband appealed from the Henry Circuit Court’s initial divorce judgment, which was entered on February 7, 2006. On appeal, the husband argued that the trial court had erred in its division of property and in its award of an $8,500 attorney fee to the wife. We affirmed the award of an attorney fee. With regard to the division of property, the [686]*686husband argued that the trial court had exceeded its discretion (1) in awarding the wife $40,000 as her portion of the parties’ investment property and (2) in awarding the wife $15,000 for the purchase of a vehicle.

With regard to the award of $40,000 to the wife, we agreed with the husband that the trial court had exceeded its discretion. Initially, we noted that the trial court clearly had not awarded the wife any portion of the husband’s retirement accounts. Further, we noted that, pursuant to Ala. Code 1975, § 30-2-51(a), “the trial court could not have awarded the wife any portion of the husband’s nonretirement investments acquired before the marriage, or any income derived therefrom,” because the wife had failed to present any evidence indicating “that the funds from those investments had been used regularly for the common benefit of the parties during their marriage.” Walding, 983 So.2d at 1131. Next, this court noted that the evidence indicated that the husband had invested only $23,066.96 in nonretirement investment accounts during the marriage and that the only evidence in the record regarding the value of the nonretirement investments made during the marriage was that the stocks the husband had purchased in his employee-stock-purchase plan were valued at $27,676 at the time of the trial. Id. Accordingly, this court concluded that the evidence did not justify an award of $40,000 to the wife as her portion of the nonretirement investment property, and we reversed the judgment insofar as it divided the parties’ property. Walding, 983 So.2d at 1132. Because we reversed the judgment as to the property division based on the husband’s first argument, we pretermited discussion of the husband’s second argument — that the trial court had erred in awarding the wife $15,000 to purchase a vehicle — and instructed the trial court to reconsider the entire division of property on remand. Id.

On remand to the trial court, the wife served discovery requests upon the husband and requested that the trial court receive additional evidence. The husband objected to the discovery requests and to the request that the trial court receive additional evidence. The trial court held a hearing, and, after hearing arguments of counsel for both parties, the trial judge stated: “We are not opening back up for evidence. I’m going to review the record.”

On June 26, 2008, the trial court entered an amended divorce judgment, providing, in pertinent part:

“(4) That the Court is holding the proceeds in the amount of $21,561.79 from the sale of the [marital] home. That a check in the amount of $21,561.79 is to be paid to the [wife] and the [husband] is to receive credit for $10,781.00 toward any of the obligations he is ordered to pay the [wife] herein.
“(5) That within 90 days, the [husband] is to pay $15,000 to the [wife] so she may purchase a vehicle.
“(6) That each party has various investment accounts and the court finds that the [husband] had $251,000.00 to $275,000.00 in his accounts prior to the marriage. That the [husband] testified that his portfolio reflects approximately $438,000.00 in the accounts at this time.
“(7) That each party shall retain his or her own retirement accounts or accounts previously in existence in their name.
“(8) That within 90 days, the [husband] is to pay $25,000.00 to [the wife] as her portion of the accumulated investment property.
“(9) That the [wife] will make available all the personal property in her [687]*687possession that belongfs] to the [husband] ....
“(10) That the [husband] -will pay an amount equal to one half of reasonable attorney’s fees which will be awarded by the Court in a subsequent order.”

The court subsequently awarded the wife attorney fees in the amount of $8,500.

On July 24, 2008, the husband filed a motion to alter, amend, or vacate the amended divorce judgment, and, on July 25, 2008, the wife filed a “motion for reconsideration.” The trial court held a hearing on those motions on September 12, 2008. On September 26, 2008, the trial court modified the amended divorce judgment by awarding the wife interest, dating back to the entry of the initial divorce judgment, on the $25,000 awarded to the wife as her portion of the investment accounts and on the $15,000 awarded to the wife to purchase a vehicle; the trial court also awarded the wife interest on the $8,500 attorney-fee award, dating back to April 28, 2006, the date of the original order awarding those fees. The husband filed his notice of appeal on October 8, 2008.

Discussion

On appeal, the husband first argues that the trial court erred by conducting hearings after this court had remanded the case back to the trial court. He cites Kaufman v. Kaufman, 22 So.3d 458, 460 (Ala.Civ.App.2007), for the proposition that, on remand, a trial court must comply strictly with the appellate court’s mandate “ ‘ “ ‘without granting a new trial or taking additional evidence.’ ” ’ ” Kaufman, 22 So.3d at 460 (quoting Auerbach v. Parker, 558 So.2d 900, 902 (Ala.1989)) (emphasis omitted). We note, however, that the trial court specifically declined to take additional evidence on remand. Thus, we find no error on this point.

The husband next argues that the trial court erred in awarding the wife $25,000 as her portion of the investment property. In support of this argument, the husband states that this court held that the husband had invested only $23,066.96 in the nonretirement accounts during the marriage. Thus, he suggests, the trial court erred by awarding an amount larger than $23,066.96. We note, however, that this court also held that the evidence indicated that the stocks that the husband had purchased in his employee-stock-purchase plan during the marriage were valued at $27,675 at the time of the trial. Therefore, we conclude that the trial court did not, in fact, award the wife more than the value of the portion of the nonre-tirement investments accumulated during the marriage.

The husband also argues that the trial court erred in awarding the wife $15,000 to purchase a vehicle. The husband argues primarily that the award results in an inequitable division of property.1

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Bluebook (online)
23 So. 3d 684, 2009 Ala. Civ. App. LEXIS 126, 2009 WL 1262310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walding-v-walding-alacivapp-2009.