Opinion
2200988
06-30-2022
Jonathan David Jones v. Tameka Lashea Jones
Appeal from Shelby Circuit Court (DR-18-900268)
MOORE, Judge.
Jonathan David Jones ("the husband") appeals from a judgment entered by the Shelby Circuit Court ("the trial court") divorcing him from Tameka Lashea Jones ("the wife"). We affirm the judgment in part and reverse it in part.
Procedural History
In 2018, the wife filed a complaint seeking a divorce from the husband, and the husband filed a counterclaim seeking a divorce from the wife. Both parties sought an equitable division of the marital estate and joint custody of the three children born of the marriage. The wife also requested alimony and attorney's fees. In 2019, upon the motion of the wife, the trial court added Isaac Jones ("Isaac"), the husband's father, as a party. The wife amended her complaint to add a claim against Isaac; she alleged a justiciable controversy as to whether Isaac held only a nominal or some other interest in the marital residence. In 2021, Isaac filed an answer and a counterclaim, asserting, in pertinent part, that he was an owner of the marital residence and seeking a judgment declaring the parties' various ownership interests.
On April 5, 2021, the trial court appointed a private judge to preside over the case based upon a joint petition of the parties. See Ala. Code 1975, § 12-11A-3. The case was tried over three days in April 2021. On May 24, 2021, the trial court entered a judgment that, among other things, divorced the husband and the wife, awarded them "shared custody" of their children, awarded the wife rehabilitative alimony of $500 per month for 36 months, divided their personal property, and ordered the husband and the wife to pay his or her own debts and attorney's fees. The divorce judgment also provided, in pertinent part:
"3. That [Isaac] was brought into this case as a necessary party by [the wife] as his name appears on the mortgage, note and the deed on the marital residence .... [Isaac] plead[ed] and all agreed his sole involvement in this matter was to establish his ownership, if any, in the marital residence.
"4. After extensive testimony on April 6, 2021[,] only, the Court FINDS [Isaac] does have a one-half (½) interest in the marital residence .... However, the Court FINDS from testimony [Isaac] did not contribute to the down payment on the residence, did not make any mortgage payments, nor insurance payments nor payments toward any taxes on the residence. The intent of the purchase was for the property to be the marital residence of the [wife, the husband,] and [their] minor children. The [husband and the wife] filed for Homestead Exemption. The Court also FINDS the remaining one-half interest is the marital asset of the [husband and the wife] and thus can be divided by the Court between the [husband and the wife]. That division shall be address[ed] further in this Order.
"....
"21. That the marital residence of the parties ... shall be awarded to the [husband]. Parties testified to their best knowledge [that the marital residence] had a fair market value of $250,000.00. [The husband] testified [that the] mortgage balance on April 28, 2021[,] was $89,000.00. [The] Mortgage note has been in forbearance due to [the] Covid 19 [pandemic] for one (1) year. Payment will begin again on or about May 1, 2021. [The wife] is awarded as Alimony in Gross One Hundred Forty Thousand Dollars ($140,000.00) of the equity in the marital residence. Said payment shall be made to [the wife] by [the husband] on or before July 15, 2021. [The wife] shall remain in the marital residence until payment is made in full. After payment is made, in full, [the wife] shall have sixty (60) days to vacate said residence, leaving it in current condition -- no better -- no worse."(Capitalization and bold typeface in original.)
On June 22, 2021, the husband filed a postjudgment motion. The trial court entered an amended divorce judgment on July 20, 2021, in which, among other things, the husband was given until December 31, 2021, to pay the wife the alimony in gross awarded in paragraph 21. The husband filed his notice of appeal on August 31, 2021.
Issues
The husband argues that the trial court erred in ordering him to pay the wife $140,000 as alimony in gross, in ordering him to pay the wife rehabilitative alimony, and in ordering him to share custody of the parties' oldest child. We address each argument in turn.
I. Alimony in Gross
Alimony in gross is a monetary award intended to settle the parties' property rights in the marital estate. See Hager v. Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974). Traditionally, alimony in gross was awarded as compensation to the wife for the loss of her inchoate marital rights to dower, homestead, quarantine, and distributive share, but, in more modern times, alimony in gross "represent[s] a division of the fruits of the marriage where liquidation of a couple's jointly owned assets is not practicable." Id. A trial court may not award a party alimony in gross in an amount exceeding the present value of the other party's interest in the marital estate. See Ex parte Dickson, 29 So.3d 159 (Ala. 2009).
In paragraph 21 of the amended divorce judgment, the trial court awarded the husband the marital residence and awarded the wife alimony in gross in the amount of "[$140,000] of the equity in the marital residence," payable in a lump sum due on December 31, 2021. The husband points out that the trial court determined in paragraph 4 of the amended divorce judgment that Isaac holds a one-half interest in the marital residence. Asserting that those paragraphs of the judgment should be construed in pari materia, see Frye v. Frye, 115 So.3d 932, 936 (Ala. Civ. App. 2012), the husband maintains that paragraph 21 actually awards the husband only a one-half interest in the marital residence and that the marital estate possesses only one-half of the equity in the residence. Because one-half of the equity in the marital residence amounts to only $80,500, the husband argues that an award of $140,000 in alimony in gross to the wife is impermissible. The husband further argues that it is not feasible for him to pay the award of alimony in gross as ordered because his equity is not a liquid asset and, he says, he has no other readily available resource from which to pay such a large lump sum. See McCarron v. McCarron, 168 So.3d 68 (Ala. Civ. App. 2014).
We agree with the husband that the trial court determined that the equity in the marital residence is $161,000 by deducting the mortgage balance of $89,000 from the market value of $250,000. The husband implies that the equity must be equally divided between Isaac and himself to correspond to their 50% ownership interests in the marital residence so that each would be entitled to $80,500 of the equity. In McGee v. McGee, 726 So.2d 1220, 1221 (Miss. Ct. App. 1998), Karen Rees McGee and Terry Wayne McGee, during their marriage, conveyed their marital home so that it was titled jointly in Mrs. McGee and Kristen McGee, the McGees' oldest daughter. At the time of the McGees' divorce, the equity in the marital home was $45,000. The divorce court ordered Mrs. McGee to pay Mr. McGee nearly one-half of that equity, or $22,000. On appeal, the Mississippi Court of Appeals held that, upon the valid conveyance of the marital home, Kristen had acquired a 50% interest in the property, including 50% of the equity, which, it determined, was not part of the marital estate subject to equitable distribution. Based on that holding, the Mississippi Court of Appeals concluded that the divorce court had erred in including Kristen's interest as part of the marital estate and awarding $20,000 in equity to Mr. McGee.
Alabama follows the general rule that property owned by a third party is not subject to equitable distribution. See Heyat v. Rahnemaei,127 So.3d 1209, 1216 (Ala. Civ. App. 2013); see also 1 Brett R. Turner, Equitable Distribution of Property § 5:14 (4th ed. 2019). In this case, the trial court specifically determined that Isaac "does have a one-half (½) interest" in the marital residence and acknowledged that it could consider only the remaining one-half interest in the marital residence as part of the marital estate subject to equitable distribution. Nevertheless, the trial court awarded the wife $140,000 of the equity as alimony in gross, a form of property settlement. McGee supports the husband's argument that the trial court committed reversible error by impermissibly treating property owned by a third party as part of the marital estate. See also Matajek v. Skowronska, 927 So.2d 981, 985 (Fla. Dist. Ct. App. 2006) (holding that, because former husband owned only a 50% interest in apartment complex as a tenant in common, marital estate could include only 50% of equity in complex); In re Marriage of Krutsinger, 140 Or.App. 215, 914 P.2d 1096 (1996) (reducing value of former husband's interest in real estate by one-half to account for 50% interest of third party).
In the judgment, the trial court emphasized that Isaac had not contributed financially to the purchase of the marital residence. The record bears out that the husband, with some contribution from the wife, paid the down payment and all of the mortgage payments toward the purchase of the marital residence. "A purchase-money resulting trust is implied in law when one person pays for the purchase of land and title is taken in the name of another." Woodard v. Funderburk, 846 So.2d 363, 368 (Ala. Civ. App. 2002). In such circumstances, the law deems the nonpaying grantee to hold the title in trust for the benefit of the purchaser, who holds the entire equitable interest in the property. Id. If the trial court had found that a purchase-money resulting trust existed, it would have been authorized to treat all the equity in the marital residence as part of the marital estate. However, the trial court expressly determined that Isaac holds a one-half interest in the marital residence and that only the remaining one-half interest was part of the marital estate. The trial court did not determine that Isaac held title to one-half of the marital residence solely as a trustee for the benefit of the husband or the spouses, belying any conclusion that the trial court relied on the existence of a purchase-money resulting trust.
The evidence in the record establishes that, although Isaac did not contribute to the purchase price of the marital residence, he did make improvements to the property, which he estimated to be worth $21,680. Based on that evidence, the trial court might have impliedly determined that Isaac was entitled to only $21,000 in equity in the marital residence, with the remaining $140,000 belonging to the marital estate. In partition cases, when ordering a sale for division, a trial court can adjust the equities amongst cotenants in a similar fashion, see Fundaburk v. Cody, 261 Ala. 25, 72 So.2d 710 (1954), but, in this case, the trial court did not order a sale of the marital residence and an equitable division of the sale proceeds, like in a partition case, and we do not decide whether it would have been appropriate for the trial court to do so.
We cannot discern any legal theory that supports the trial court's implied determination that the marital estate includes $140,000 of the equity in the marital residence. We note that the husband raised this issue in his postjudgment motion, which the trial court denied without comment. Accordingly, we reverse the judgment as to the alimony-in-gross award and remand the case with instructions that the trial court vacate its award of alimony in gross, reconsider the equitable distribution of the marital estate, and take such other actions as are consistent with this opinion. Because we are reversing the judgment on this issue, we pretermit any discussion regarding the ability of the husband to pay the award of alimony in gross in a lump sum as ordered.
II. Rehabilitative Alimony
Based on our disposition of the award of alimony in gross, we also pretermit any discussion of the propriety of the award of rehabilitative alimony. In Sumerlin v. Sumerlin, 964 So.2d 47, 50 (Ala. Civ. App. 2007), this court explained:
"The division of property and the award of alimony are interrelated, and appellate courts review the entire judgment in determining whether the trial court abused its discretion as to either issue. See O'Neal v. O'Neal, 678 So.2d 161, 164 (Ala. Civ. App. 1996). 'A court has no fixed standard to follow in awarding alimony or in dividing marital property[; r]ather the award or division need only be equitable and be supported by the particular facts of the case.' Ex parte Elliott, 782 So.2d 308, 311 (Ala. 2000)."
Because we have ordered the trial court to reconsider its equitable distribution of the marital estate on remand, we also reverse the judgment as to the rehabilitative-alimony award and remand the case for the trial court to reconsider its award of rehabilitative alimony.
III. Custody
The husband finally argues that the trial court erred in ordering the parties to share joint custody of the parties' oldest child, R.J. The husband specifically argues that R.J. and the wife have a poor relationship because, he says, the wife left the marital residence in January 2020 and took the children with her to live in a hotel and at a shelter for a combined total of approximately five weeks. The husband testified that the wife had prevented him from communicating with the children when they were living in the hotel and at the shelter and that the wife had also taken the children out of school for approximately one week during that time. According to the husband, the wife had told R.J. that the husband was dangerous, had not helped R.J. with his schoolwork, and had failed to make counseling appointments for R.J. The husband additionally argues that the wife had allowed the marital residence to fall into disrepair, which, he asserts, negatively impacted R.J.
With regard to this court's review of custody judgments, this court has explained:
"'When evidence in a child custody case has been presented ore tenus to the trial court, that
court's findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination -- it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994), wherein this Court, quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993), set out the well-established rule:
"' "'Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So.2d 440 (Ala. Civ. App. 1989), and Vail v. Vail, 532 So.2d 639 (Ala. Civ. App. 1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So.2d 1343 (Ala. Civ. App. 1990); Flowers v. Flowers, 479 So.2d 1257 (Ala. Civ. App. 1985).' "'
"Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala. 1996). We also note that, '[w]hen a trial court does not make specific findings of fact concerning an issue, an appellate court will
assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.' McGough v. McGough, 710 So.2d 452, 453 (Ala. Civ. App. 1997) (citing Ex parte Bryowsky, 676 So.2d at 1324). '[T]he resolution of conflicting evidence is within the exclusive province of the trial court ....' Hedgemon v. United Parcel Serv., Inc., 832 So.2d 656, 659 (Ala. Civ. App. 2002).
" '"When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the 'best interest of the child' standard will generally apply. Nye v. Nye, 785 So.2d 1147 (Ala. Civ. App. 2000); see also Ex parte Byars, 794 So.2d 345 (Ala. 2001). In making an initial award of custody based on the best interests of the children, a trial court may consider factors such as the '"characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent."' Graham v. Graham, 640 So.2d 963, 964 (Ala. Civ. App. 1994) (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981)) .... Other factors the trial court may consider in making a custody determination include 'the sex and age of the [children], as well as each parent's ability to provide for the [children's] educational, emotional, material, moral, and social needs.' Tims v. Tims, 519 So.2d 558, 559 (Ala. Civ. App. 1987).
The overall focus of the trial court's decision is the best interests and welfare of the children."
"'Steed v. Steed, 877 So.2d 602, 604 (Ala. Civ. App. 2003).
"'Furthermore, when evidence is presented ore tenus, the trial court is "'unique[ly] position[ed] to directly observe the witnesses and to assess their demeanor and credibility.'" Ex parte T.V., 971 So.2d 1, 4 (Ala. 2007) (quoting Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001)). Therefore, a presumption of correctness attaches to a trial court's factual findings premised on ore tenus evidence. Ex parte J.E., 1 So.3d 1002, 1008 (Ala. 2008).'"Bedard v. Bedard, 266 So.3d 1113, 1123-24 (Ala. Civ. App. 2018)." Treadway v. Treadway, 324 So.3d 842, 848-49 (Ala. Civ. App. 2020).
In Burkett v. Burkett, [Ms. 2200720, May 6, 2022] __So. 3d__ (Ala. Civ. App. 2022), Megan Brooks Burkett, the mother in that case, appealed the judgment entered by the Butler Circuit Court divorcing her from Clifton Douglas Burkett, the father. In pertinent part, the mother challenged that aspect of the judgment that awarded the parties joint custody of their child. This court affirmed the award of joint custody, noting, in part, that the evidence was in conflict with respect to which parent had been the primary caregiver during the marriage. The trial court had found that, "although evidence was presented indicating that each of the parents may have engaged in erratic behavior, no testimony was presented indicating that either parent had harmed the child or that either parent was concerned that the other parent would harm the child in the future." __So. 3d at __. The trial court also found that the father had changed his work schedule after the parties' separation to enable him to care for the child. This court therefore concluded that "sufficient evidence was presented from which the trial court could have inferred that it was in the best interests of the child to award the parties joint physical custody of the child." __So. 3d at __.
In the present case, the wife testified that, although the husband had stepped up in his role as a father since the parties' separation, she had been the primary caregiver of the children during the parties' marriage. Although the evidence indicates that the wife initially moved out of the marital residence with the children and did not allow contact between the husband and the children, the wife testified that she had been afraid of the husband because he had threatened her. Additionally, the husband does not argue that the wife has attempted to keep the children from him since that time, and, at the time of trial, the wife and the children had been residing in the marital residence since February 2020, pursuant to a pendente lite order entered by the trial court. Although the husband asserts that the wife told R.J. that the husband was dangerous, the wife testified that the husband had told R.J. that the divorce was all her fault. Therefore, the trial court heard evidence indicating that both parties had spoken inappropriately to R.J. about the other parent. With respect to R.J.'s schoolwork, the wife testified that she had addressed that issue, albeit not in the specific manner that the husband had desired, and that R.J.'s grades had improved. As to counseling, the wife testified that she had attempted to schedule counseling appointments for R.J. but that, at times, R.J.'s counselor's schedule had been full, so she had been unable to meet with R.J. The wife and R.J. both testified that, with counseling, their relationship had improved leading up to the divorce trial. With respect to the state of the marital residence, the evidence indicated that the house had already been in need of repair but that the state of disrepair had declined more after the husband had moved out. The wife testified that she had attempted to fix some of the problems in the house, but she also testified that the husband had taken funds received from an insurance claim on the marital residence and had not used those funds to repair the related damage.
In summary, we note that, like in Burkett, there was conflicting evidence presented in this case. Although there had been issues regarding R.J., the wife testified that she had taken steps to resolve those issues and that the circumstances regarding R.J. had improved leading up to the trial. Considering the foregoing evidence, as well as our ore tenus standard of review, we cannot conclude that the trial court erred in determining that R.J.'s best interests would be served by the award of joint physical custody to the parties. See, e.g., Ala. Code 1975, § 30-3-152(b) ("The court may order a form of joint custody without the consent of both parents, when it is in the best interest of the child.").
The husband also points out that R.J., who was 14 years old at the time he testified at the trial, stated that he wanted to live with his father. He asserts, citing Toler v. Toler, 947 So.2d 416 (Ala. Civ. App. 2006), that the trial court erred in not giving R.J.'s wishes weight in entering the custody determination. We note, however, that Toler also points out that a child's preference is not dispositive. Under the terms of the divorce judgment, R.J. will have the opportunity to spend equal time with both parents. Considering the wife's testimony that she had been the primary caregiver of the children, that she had taken steps to address R.J.'s problems, and that the relationship between R.J. and the wife was improving, we cannot conclude that the trial court erred in declining to enter a judgment in accordance with R.J.'s wishes. Based on the foregoing, we affirm the trial court's judgment awarding the parties' joint physical custody of all three children.
Finally, we recognize that the wife argues in her brief to this court that the trial court erred in awarding the husband joint physical custody of the children. We note, however, that the wife did not file a cross-appeal. Therefore, we will not address her arguments. See, e.g., Robicheaux v. Robicheaux, 731 So.2d 1222, 1224 (Ala. Civ. App. 1998) (holding that, because "the wife did not perfect a cross[-]appeal under Rule 4(a)(2)," Ala. R. App. P., this court would "not address the issue she raised").
Conclusion
Based on the foregoing, we reverse the trial court's judgment insofar as it awarded the wife alimony in gross in the amount of $140,000 and rehabilitative alimony in the amount of $500 per month for 36 months, and we remand the cause for the trial court to reconsider the division of property and the award of alimony in light of this opinion. The trial court's judgment is affirmed in all other respects.
The wife's request for an award of attorney's fees on appeal is denied. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Hanson and Fridy, JJ., concur.
Edwards, J., concurs in the result, without opinion.