Opinion
2210318 2210376
11-10-2022
Marla AYERS v. Louie F. AYERS II Louie F. Ayers II v. Marla Ayers
R. Champ Crocker, Cullman, for appellant/cross-appellee Marla Ayers. Charles H. Dunn and Caleb A. Faulkner of Boyd, Fernambucq & Dunn, P.C., Birmingham, for appellee/cross-appellant Louie F. Ayers II.
R. Champ Crocker, Cullman, for appellant/cross-appellee Marla Ayers.
Charles H. Dunn and Caleb A. Faulkner of Boyd, Fernambucq & Dunn, P.C., Birmingham, for appellee/cross-appellant Louie F. Ayers II.
FRIDY, Judge.
Marla Ayers ("the wife") appeals from a partial summary judgment entered by the Cullman Circuit Court ("the trial court") determining that a prenuptial agreement between her and Louie F. Ayers II ("the husband") was enforceable and from the final judgment entered by the trial court insofar as it divorced the parties on the ground of incompatibility rather than adultery. The husband cross-appeals from the final judgment divorcing the parties insofar as it ordered him to provide the wife with health-insurance coverage. We affirm the partial summary judgment determining that the prenuptial agreement was enforceable and the final judgment insofar as it divorced the parties on the ground of incompatibility. We reverse the final judgment insofar as it directed the husband to provide health-insurance coverage for the wife.
Background
The parties married in October 2001. Both had been married previously; the husband had custody of two children from his previous marriage. Two children were born during the parties’ marriage to one another. The parties separated in June 2019, and the wife filed a complaint for divorce that month.
During the litigation, the husband filed a motion for a partial summary judgment regarding the enforceability of a prenuptial agreement that the parties had signed before their marriage. In support of his motion, the husband included a copy of the prenuptial agreement, which provided that the property owned by each party before the marriage or acquired by either party in his or her own name during the marriage would remain separately owned property, "free from any and all claims of the other party that may arise by reason of their marriage except as otherwise set out specifically in this Agreement." The prenuptial agreement also required each party "to sign a waiver of a Qualified Pre-Retirement Survivor Annuity or Qualified Joint and Survivor Annuity (as defined in the Internal Revenue Code) under any qualified retirement plan in which the owner of them shall be a participant at any time." Regarding rights to marital property, the prenuptial agreement provided:
"The parties hereby waive, release and relinquish any and all claims and rights of every kind, nature or description whether legal or equitable which they may have against the other’s separately owned property, as such property shall exist at the time of such dissolution not specifically reserved in this Agreement, including but not limited to the following:
"1. Support;
"2. Maintenance;
"3. Alimony;
"4. Attorneys fees, court costs, or other fees or expenses incurred as a result of the divorce or dissolution;
"5. Any right or claim for property settlement or other division of property;
"6. All other funds or allowances which might otherwise accrue as a result of the dissolution of the marriage;
"7. The right to obtain a Qualified Domestic Relations Order (as defined in the Internal Revenue Code) with respect to any qualified retirement plan in which the other is a participant.
… [I]n the event of divorce or dissolution of the marriage the parties shall receive their designated interest in any jointly held property, whether cash or chattels or real estate unless otherwise stated herein. Each party’s interest shall be whatever designation appears on any instrument of title to said property unless otherwise stated herein. In the event of divorce, the acquired property after the marriage shall be equally divided between the parties."
The prenuptial agreement indicated that each party was represented by an attorney and that each party had made to the other a full and complete disclosure of his or her separately owned property, including his or her assets, net worth, and income. In the prenuptial agreement, the husband and the wife each acknowledged that the other’s "assets, present net worth, and income" had been fully and fairly disclosed, that the other party had fully explained and answered questions regarding that party’s assets and present net worth, and that each party had received the advice of counsel. The acknowledgment also stated that each party understood that, by entering into the prenuptial agreement, he or she was waiving and releasing any rights to the other’s separately owned property and that he or she entered the agreement freely, voluntarily, and with full knowledge.
In the prenuptial agreement, an attorney for each party certified that he had advised his client with respect to the prenuptial agreement, that he had explained "the meaning and legal effect of it," that his client had acknowledged a "full and complete understanding" of, and the legal consequences of, the prenuptial agreement, and that his client had freely and voluntarily executed the prenuptial agreement in his presence. An exhibit describing the parties’ assets was attached to the prenuptial agreement.
In opposing the husband’s partial-summary-judgment motion seeking enforcement of the prenuptial agreement, the wife argued that the prenuptial agreement was unenforceable under several equitable doctrines. Specifically, she contended that the enforcement of the prenuptial agreement would result in unjust enrichment to the husband, that the husband came to the action with unclean hands because, she said, he had engaged in an adulterous relationship with another woman, and that the husband was estopped from enforcing the prenuptial agreement because, she said, he had told the wife he would always take care of her.
The trial court held a hearing on the husband’s motion for a partial summary judgment at which the parties testified. In addition, the wife submitted transcripts of the parties’ depositions to the court. Regarding the creation of the prenuptial agreement, the husband testified that, after the parties decided to marry, they retained their own attorneys to prepare the prenuptial agreement to protect their assets and, he said, to protect his children from his previous marriage. The wife testified that she had participated in the preparation of the prenuptial agreement and recalled meeting with her attorney at his office one time. She also said that she had entered into the prenuptial agreement freely and that she had discussed it with her attorney before signing it. However, she said, she later realized that she did not fully understand the prenuptial agreement.
The evidence showed that the parties signed the prenuptial agreement the day before their wedding. The wife testified that she did not recall any coercion or threats being made to induce her to sign the prenuptial agreement. The husband said that he, the wife, their respective attorneys, and two witnesses gathered in a conference room and that the attorneys explained the terms of the prenuptial agreement. The wife testified that she did not recall that meeting. Nonetheless, it is undisputed that the husband, the wife, and the witnesses signed the prenuptial agreement.
Evidence showed that, when the parties married, the husband was the plant manager at Ingram Farms, earning approximately $80,000 annually, and that the wife worked as a dental hygienist. Soon after the marriage began, the husband and the wife mutually agreed that she would leave her job to be a stay-at-home mother. The wife testified that she had allowed her dental-hygienist license to lapse because, she said, she had believed that she would not need it any longer. She said that the husband had told her that she would always be taken care of and that she had believed him. The husband denied telling the wife that she would always be taken care of, explaining that he had agreed only to the terms in the prenuptial agreement. At the hearing, the husband also denied the wife’s allegation that he had had an affair.
On April 30, 2021, the trial court entered a partial summary judgment determining that the prenuptial agreement was valid and enforceable. In doing so, the trial court explicitly rejected the wife’s arguments that the prenuptial agreement was unenforceable under the equitable doctrines the wife had asserted.
On October 6, 2021, the trial court held a trial in the divorce action. At the trial, the wife contended that the husband had committed adultery with a coworker and that that was the reason she sought a divorce. She testified that she believed that, "until [she] started figuring things out," the parties had had a good marriage. The wife said that she did not confront the husband about the alleged affair; instead, she said, she simply had had him served with the divorce complaint and he had left the marital residence.
Both the husband and the coworker testified that they had not engaged in an adulterous relationship. During the husband’s testimony, the wife submitted into evidence a video containing clips of the husband and the coworker together in different vehicles. The husband testified that, when they were observed in one of the vehicles, the husband and the coworker were talking about the coworker’s divorce. In one clip, the coworker was sitting in the husband’s lap while they were in a vehicle. The husband said that one thing had led to another, and that they had hugged and kissed, but that "nothing beyond that" had ever occurred. The coworker admitted that the husband had gotten into her vehicle with her and that the two had hugged and kissed. The coworker also said that she generally sent text messages to the husband multiple times a day. She admitted that, after being instructed at her deposition to preserve her text messages, which she said that she habitually deleted, she had continued to delete messages for several days. She said that she could not recall what was in those messages but that it was "just regular stuff back and forth."
The only real property the parties owned was the marital residence. The parties agreed that the residence had a fair-market value of about $700,000 and that the note secured by a mortgage on the martial residence had a balance of approximately $29,000. The husband estimated that each party’s share of the equity in the marital residence would be approximately $335,500, which the wife did not dispute. The wife and the husband were also in agreement regarding the fair-market value of personal property that they had acquired during the marriage, such as boats, vehicles, furniture, and personal possessions.
Testimony indicated that, about six years before the divorce trial, the husband had left Ingram Farms to work for Mar-Jac, a poultry company, in a role that the wife characterized as a division manager. At Mar-Jac, the husband’s salary had increased to more than $550,000 annually. At trial, the wife argued that the prenuptial agreement did not cover the husband’s retirement accounts that came into existence during the marriage, but the trial court disagreed. The trial court did, however, allow the wife to make a record of the value of the challenged accounts for purposes of appeal.
On November 4, 2021, the trial court entered a final judgment divorcing the parties and dividing the marital property. The trial court specifically found that none of the marital property fell outside the terms of the prenuptial agreement, and it ordered a division of the marital property pursuant to the terms of the prenuptial agreement. The trial court ordered the parties to sell the marital residence and to divide the proceeds from the sale equally after the payment of closing costs. The trial court noted that, without taking into account the division of the proceeds from the sale of the marital residence, the wife was receiving marital property with an estimated value of $171,750, or 50.15% of the total estimated value of the marital property, and the husband was receiving marital property with an estimated value of $170,750, or 49.85% of the total estimated value of the marital property. The trial court attached exhibits to the judgment setting forth the specific marital property awarded to each party, as well as the separate property each was to receive in accordance with the prenuptial agreement.
Both parties filed motions to alter, amend, or vacate the judgment, which the trial court denied. The wife filed a timely notice of appeal to this court, and the husband filed a timely notice of cross-appeal.
The Wife’s Appeal (Appeal No. 2210318)
In her appeal, the wife contends that the trial court erred when it granted the husband’s motion for a partial summary judgment and determined that the prenuptial agreement was enforceable. Our review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). In reviewing a summary judgment, we apply the same standard that the trial court applied, determining whether the movant made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. If this showing is made, the burden shifts to the nonmovant to rebut the movant’s prima facie showing by "substantial evidence" to create a genuine issue of material fact. First Fin. Ins. Co. v. Tillery, 626 So. 2d 1252, 1254 (Ala. 1993). We are required to view the evidence in a light most favorable to the nonmovant, and we must entertain all reasonable inferences from the evidence in favor of the nonmovant. Id.
[1] As she did in the trial court, the wife argues that the prenuptial agreement was unenforceable for several reasons. First, she contends, the prenuptial agreement "was intended to shield her family’s assets" and therefore was unenforceable under the circumstances of this case. In support of that contention, she argues that "[t]he fundamental determination in the legal construction of contracts ‘is the real intention of the parties’" and that the trial court should have ascertained and given effect to the "common intention of the parties, so far as that may be done without contravention of legal principles, statutes, or public policy." Wife’s brief at 37. We disagree.
[2, 3] The purpose of an agreement "must be derived from the text, not from extrinsic sources such as … an assumption about the legal drafter’s desires." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 2 at 56 (Thomson/West 2012). Additionally, "purpose … cannot be used to contradict text or to supplement it. Purpose sheds light only on deciding which of various textually permissible meanings should be adopted." Id. at 57.
[4–8] "The interpretation of a provision in an antenuptial agreement, like the interpretation of any provision in any contract, is a question of law for the trial court." Peden v. Peden, 972 So. 2d 106, 110 (Ala. Civ. App. 2007). It is well settled that a contract or agreement that, by its terms, is plain and free from ambiguity must be enforced as written. SE Prop. Holdings, LLC v. Bama Bayou, LLC, 329 So. 3d 1250, 1267 (Ala. 2020). When interpreting a contract, a court should give the terms of the contract their clear and plain meaning and should presume that the parties intended what the terms of the contract clearly state. Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So. 2d 409 (Ala. 1993). If only one reasonable meaning clearly emerges, then the agreement is unambiguous. R.G. v. G.G., 771 So. 2d 490, 494 (Ala. Civ. App. 2000). Finally, if a provision of an agreement is certain and clear, it is the duty of the trial court to determine its meaning, and the court’s determination is afforded a heavy presumption of correctness and will not be disturbed unless it is clearly erroneous. Id. "Alabama appellate courts have stated that a court will not look beyond the four corners of a written instrument unless the instrument contains latent ambiguities." Judge v. Judge, 14 So. 3d 162, 165 (Ala. Civ. App. 2009).
The parties’ prenuptial agreement itself includes no indication that its purpose was solely to protect the wife’s family’s assets. In arguing that the trial court was required to ascertain the "real intent of the parties in entering into" the prenuptial agreement, wife’s brief at 39, the wife does not assert that the prenuptial agreement contained ambiguities that would trigger a need for the trial court to look outside of the four corners of the agreement to determine its meaning. In short, the purpose of the prenuptial agreement is plain from its text, and the text of the prenuptial agreement provides no basis on which to conclude that it was entered into only to protect the wife’s family’s property from the husband.
[9] The wife next contends that the husband is estopped from enforcing the prenuptial agreement because, she says, he told her that she would always be taken care of and because she had believed that she had allowed her dental-hygienist license to lapse. In support of her argument, the wife relies on Mazer v. Jackson Insurance Agency, 340 So. 2d 770 (Ala. 1976), which discusses both equitable estoppel and promissory estoppel, noting that, except for the nature of the conduct on which the estoppel is based, the elements of equitable estoppel and promissory estoppel are essentially the same. The Mazer court, citing 3 Pomeroy, Equity Jurisprudence § 805 (5th ed. 1941), set forth the following elements to support estoppel: (1) there must be conduct amounting to a representation or a concealment of material facts; (2) the facts must be known to the party engaged in that conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him or her; (3) the truth concerning those facts must be unknown to the other party at the time when such conduct was done and at the time when it was acted upon; (4) the conduct must be performed with the intention or expectation that the other party will act upon it, or under such circumstances that it is both natural and probable that it will be so acted upon; (5) the other party must rely and be led to act on the conduct; and (6) the other party must act on the conduct in such a manner as to change his or her position for the worse. 340 So. 2d at 773. In describing the "material facts" necessary to sustain promissory estoppel, our supreme court has said that the promise expected to induce the other party to act or refrain from acting must be "‘of a definite and substantial character.’" Bush v. Bush, 278 Ala. 244, 245, 177 So. 2d 568, 578 (1964) (quoting Restatement of the Law of Contracts, § 90, page 110); see also Mazer, 340 So. 2d at 772-73.
The trial court specifically found that, even if the husband had stated that he would always take care of the wife, which the husband denied, that statement would not constitute a promise of a "definite and substantial character" so as to satisfy the requirement of the concealment of "material facts." Additionally, the trial court found that the wife had failed to produce "any substantial evidence that the husband promised to invalidate their [prenuptial] agreement if she stayed home with the children or quit her job." Indeed, there is no evidence to suggest that, when the parties agreed during the marriage that the wife would quit working outside the home, anything was said about revoking the prenuptial agreement. See, e.g., Arnold v. Hyundai Motor Mfg. Alabama, LLC, 292 So. 3d 1042 (Ala. 2019). The decision regarding whether the wife would leave her job, made once the parties had already manned, had no bearing on their decision to enter into the prenuptial agreement. We agree with the trial court that the wife failed to establish a basis for determining that the husband was estopped, under either promissory or equitable estoppel, from enforcing the prenuptial agreement.
[10–12] The wife also contends that the trial court erred in enforcing the prenuptial agreement because, she says, the husband’s alleged affair with his coworker would have nullified the prenuptial agreement under the clean-hands doctrine. The clean-hands doctrine "prevent[s] a party from asserting his … rights under the law when that party’s own wrongful conduct renders the assertion of such legal rights ‘contrary to equity and good conscience.’" J & M Bail Bonding Co. v. Hayes, 748 So. 2d 198, 199 (Ala. 1999) (quoting Draughon v. General Fin. Credit Corp., 362 So. 2d 880, 884 (Ala. 1978)). Whether a party has "unclean hands" is a determination that is vested in the sound discretion of the trial court. Curtis v. Curtis, 367 So. 3d 1088 (Ala. Civ. App. 2021).
In the partial summary judgment, the trial court pointed out that the wife had cited no legal authority supporting her claim that the clean-hands doctrine precludes a court from enforcing a prenuptial agreement when one of the parties to that agreement is alleged to have engaged in adulterous conduct. Furthermore, the prenuptial agreement at issue in this case did not contain any restrictions or set forth any grounds under which it would be rendered invalid or unenforceable. See, e.g., Thacker v. Thacker, 298 So. 3d 502, 503 (Ala. Civ. App. 2020) (construing prenuptial agreement providing that, if adultery was proven and wife initiated divorce proceedings for that reason, husband agreed to pay wife a certain sum as part of the divorce judgment). Indeed, this court has held that evidence indicating that a husband or a wife may have engaged in adultery does not render a prenuptial agreement void or constitute a defense to enforcement of the agreement. Hubbard v. Bentley, 17 So. 3d 652, 654 (Ala. Civ. App. 2008). In Hubbard, this court adopted the reasoning of the Ohio Supreme Court, which wrote:
"‘[P]arties … who enter into [prenuptial agreements] specifically provide for a possible "parting of the twain" by way of divorce or separation. It would seem that some misconduct was contemplated at that time. If there would be no basic circumstance present which could occasion a separation or divorce of the parties, how could the provisions in the contemplated contract ever be meaningful as to either party? Any other view taken of such agreements would undermine and render inane the basic purpose of such agreements. If the parties had intended that the subsequent marital misconduct would extinguish the mutual promises in the agreement, either voiding the provisions or permitting only the one not at fault to enforce such provisions, the parties could very well have made this clear within the terms of the agreement.
"‘….
"‘As to this issue, we conclude the better view to be, and so hold, that antenuptial agreements providing for division of property and containing provisions for sustenance alimony, if otherwise found to be valid, are not abrogated as to either party for marital misconduct arising after the marriage.’
"Gross v. Gross, 11 Ohio St. 3d 99, 107-08, 464 N.E.2d 500, 508 (1984); accord
Maloy v. Maloy, 362 So. 2d 484, 485 (Fla. Dist. Ct. App. 1978)."
Even if the husband had not disputed the wife’s allegation of adultery, as a matter of law such conduct would not result in the invalidation of the prenuptial agreement. We will not hold the trial court in error for refusing to apply the clean-hands doctrine in this situation.
[13] The wife next contends that enforcement of the prenuptial agreement would unjustly enrich the husband. The only authority the wife cites in support of this contention is a general statement of law regarding the elements of unjust enrichment. She cites no authority to support her contention that a claim of unjust enrichment can be used to bar enforcement of a valid prenuptial agreement. See Rule 28(a)(10), Ala. R. App. P. (providing that an appellate argument must contain supporting authority for the grounds upon which an appellant seeks reversal of a judgment); S.B. v. Saint James Sch., 959 So. 2d 72, 89 (Ala. 2006) (stating that general propositions of law are not considered "supporting authority" for purposes of Rule 28).
[14] Furthermore, the elements of unjust enrichment are simply not met by the evidence. "To prevail on a claim of unjust enrichment under Alabama law, a plaintiff must show that: (1) the defendant knowingly accepted and retained a benefit, (2) provided by another, (3) who has a reasonable expectation of compensation." Portofino Seaport Vili., LLC v. Welch, 4 So. 3d 1095, 1098 (Ala. 2008). Here, the wife failed to show that she had a reasonable expectation of compensation in the form of the husband’s forbearance from enforcing the prenuptial agreement, which they had willingly entered into, in exchange for her providing the husband with a benefit in the form of agreement to be a stay-at-home mother. Thus, the wife cannot show that the prenuptial agreement is unenforceable as unjustly enriching the husband.
[15] The wife next contends that, assuming that the prenuptial agreement is enforceable, the trial court erred in concluding in the final judgment that the husband’s retirement accounts were not subject to division under the prenuptial agreement. The wife argues that the provisions of the prenuptial agreement regarding retirement accounts were ambiguous. Specifically, she attempts to contrast Section II.(b)12, of the prenuptial agreement, under which she says each party waived his or her rights in any retirement account the other owned at the time of the marriage, with Section III.(a)7, under which she says each party waived his or her rights in any retirement account the other owned at the time of the divorce. She argues that the two provisions "cannot be harmonized to make all the terms operative unless the husband’s post-marital retirement accounts are divisible." Wife’s brief at 56-57. The "temporal inconsistency among the various provisions creates an ambiguity," the wife claims. Id. at 57.
In Section I.(a) of the prenuptial agreement, the parties agreed that
"after the solemnization of the marriage, all property, whether real, personal, now owned by each of the parties or hereafter acquired in his or her own name, shall remain the separately owned property of such party and shall be free from all claims of the other party that may arise by reason of their marriage except as otherwise set out specifically in this Agreement."
The exception noted at the end of Section I.(a) relates to the ownership of the marital residence and is not applicable to the parties’ retirement accounts.
Section I.(c) provides that "[e]ach party also agrees to sign a waiver of a Qualified Pre-Retirement Survivor Annuity or Qualified Joint and Survivor Annuity (as defined in the Internal Revenue Code) under any qualified retirement plan in which the owner of them shall be a participant at any time." Section II.(b)12. provides that each party
"waives, releases and relinquishes any and all claims and rights of every kind, nature or description that he or she may acquire by reason of the marriage in the other party’s separately owned property or estate under the present or future laws of the State of Alabama or any other jurisdiction, including but not limited to:
"….
"12. The right to receive any Qualified Pre-Retirement Survivor Annuity, or Qualified Joint and Survivor Annuity (as defined in the Internal Revenue Code) or any other payment from any qualified retirement plan in which he/she is a participant or from any Individual Retirement Accounts which they may have."
Section III.(a)7. provides:
"The parties hereby waive, release and relinquish any and all claims and rights of every kind, nature or description whether legal or equitable which they may have against the other’s separately owned property, as such property shall exist at the time of such dissolution not specifically reserved in this Agreement, including but not limited to the following;
"….
"7. The right to obtain a Qualified Domestic Relations Order (as defined in the internal Revenue Code) with respect to any qualified retirement plan in which the other is a participant."
[16, 17] In construing a contract or agreement, the trial court "should give the terms of the agreement their clear and plain meaning and should presume that the parties intended what the terms of the agreement clearly state." Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 36 (Ala. 1998). The trial court must determine whether a contract is ambiguous. Crest Homeowners Ass’n v. Onsite Wastewater Maint., LLC, 290 So. 3d 826, 828 (Ala. Civ. App. 2019). "An ambiguity exists if the agreement is susceptible to more than one meaning. Vainrib v. Downey, 565 So. 2d 647 (Ala. Civ. App. 1990). However, if only one reasonable meaning clearly emerges, then the agreement is unambiguous." R.G. v. G.G., 771 So. 2d 490, 494 (Ala. Civ. App. 2000). If no ambiguity exists, then the trial court must determine the force and effect of the terms of the contract as a matter of law. Crest, 290 So. 3d at 828.
We disagree with wife’s reading of Section II.(b)12. There is no language in Section II that limits its operation to the property that the parties had in 2001. Instead, the plain language of that section says that it applies to the claims or rights that the parties acquired by reason of the marriage and, in addition to the retirement accounts the wife challenges, includes such things as the homestead exemption or other exemptions, the right to take "against any present or future last will and testament or codicil of the other party," and each party’s intestate share of the other party’s estate. There is no basis for the wife’s contention that her claims or rights to such interests were limited to the parties’ separate estates in 2001, when the marriage took place.
In considering the plain language of the two provisions the wife says create an ambiguity (Section II.(b)12. and Section III.(a)7.), we are unable to discern the inconsistency or ambiguity, especially the "temporal inconsistency," that the wife claims. Moreover, the evidence indicates that the husband’s retirement accounts were in his name only and, under the provisions of the prenuptial agreement, were not subject to division in the event the parties’ marriage ended. We reject the wife’s contention that the prenuptial agreement was ambiguous and that the trial court misapplied the terms of the prenuptial agreement when it refused to award her a portion of the husband’s retirement accounts.
[18] Finally, the wife contends that the trial court’s division of marital assets in the final judgment did not fully and equally divide the parties’ assets and left multiple assets undivided. Specifically, the wife says that the trial court failed to dispose of a "Stieffel account" acquired during the marriage, their daughter’s car, which, the wife says, the husband retained, the parties’ Corvette, and "$10,400 left by the wife in the parties’ joint account at the outset of the divorce."
The husband testified that the "Stieffel account" was also known as the Cullman Savings Bank stock. In her motion to alter, amend, or vacate the judgment, the wife also said that the "Stieffel account" was the Cullman Savings Bank stock. In the final judgment, the trial court found that no separate property fell outside of the scope of the prenuptial agreement. Therefore, because the "Stieffel account" was solely in the husband’s name, he would have retained it pursuant to the terms of prenuptial agreement, even though it was not included as a separate entry on the list of the property awarded to the husband. Regarding the daughter’s car, the record indicates that the husband purchased the vehicle, but no evidence was produced at trial to indicate that he retained it, as the wife contends.
As to the Corvette and the $10,400 the wife said that she had left in the parties’ joint account "at the outset of the divorce," our review of the record indicates that that property was not addressed during the trial, and the wife does not provide us a cite to the record concerning that property. The wife raised the need to dispose of the Corvette and the $10,400 for the first time in her verified motion to alter, amend, or vacate.
Our supreme court has held that a party submitting new evidence, as opposed to newly discovered evidence, for the first time in a postjudgment motion is required to justify why the evidence had not been previously submitted; otherwise, the supreme court held, the trial court lacks the discretion to consider the new evidence. Alfa Mut. Ins. Co. v. Culverhouse, 149 So. 3d 1072, 1077 (Ala. 2014). In her motion to alter, amend, or vacate the judgment, the wife did not justify why the property discussed for the first time in that motion had not been discussed at trial. Therefore, the trial court could not consider that property in fashioning its division of marital property.
[19] "An error asserted on appeal must be affirmatively demonstrated by the record, and if the record does not disclose the facts upon which the asserted error is based, such error may not be considered on appeal." Martin v. Martin, 656 So. 2d 846, 848 (Ala. Civ. App. 1995). As the party claiming error, the wife carried the burden of ensuring that the record on appeal disclosed the facts upon which the, alleged error was based. Perkins v. Perkins, 465 So. 2d 414 (Ala. Civ. App. 1984). The wife failed to demonstrate that the trial court erred in not disposing of property that was either not mentioned during the trial, or that the evidence shows belonged to the parties’ daughter, or that appears to have been adequately addressed in the judgment. [20] Finally, the wife argues that the trial court should have divorced the parties on the ground of adultery and not on the ground of incompatibility. She argues that the consequences of a divorce on the ground of adultery should be imposed on the husband. However, she does not explain what those consequences are.
[21] The trial court received ore tenus evidence regarding whether the husband had committed adultery. Therefore, its judgment will be affirmed if, "under any reasonable aspect of the testimony, there is credible evidence to support the judgment." River Conservancy Co. v. Gulf States Paper Corp., 837 So. 2d 801, 806 (Ala. 2002). "When the evidence in a case is in conflict, the trier of fact has to resolve the conflicts in the testimony, and it is not within the province of the appellate court to reweigh the testimony and substitute its own judgment for that of the trier of fact." Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So. 2d 911, 913 (Ala. Civ. App. 1985).
[22] "A trial judge does not have to grant a divorce on the grounds of adultery or to divide the property in light of one party’s adultery unless the failure to do so would be palpably wrong in light of extensive evidence of adultery." Ex parte O’Daniel, 515 So. 2d 1250, 1253 (Ala. 1987) (emphasis added); see also Martin v. Martin, 623 So. 2d 1167, 1169 (Ala. Civ. App. 1993) (same). The evidence in this case regarding whether the husband engaged in adulterous conduct was strongly disputed. The trial court implicitly resolved that dispute by divorcing the parties on the ground of incompatibility rather than the ground of adultery, and, in light of the evidence, we cannot hold the trial court in error in its resolution of the issue. See B.G.K. v. A.A.B., 329 So. 3d 639, 643 (Ala. Civ. App. 2020).
The Husband’s Cross-Appeal (Appeal No. 2210376)
[23] In his cross-appeal, the husband argues that the trial court erred in ordering him to provide COBRA health-insurance coverage to the wife for one year because, he says, such an order violated the provision in the prenuptial agreement pursuant to which the parties waived the right to support, maintenance, or alimony if they should divorce. In support of his contention, the husband cites Peace v. Peace, 137 So. 3d 905, 910 (Ala. Civ. App. 2012), in which this court held that the trial court’s award of health-insurance coverage to the former wife "constituted spousal support in the nature of periodic alimony because the award was intended to compensate the former wife for a routine living expense and thereby to equalize the apparent disparity in the parties’ incomes, not to award her property." Although Peace did not involve the interpretation of a prenuptial agreement, the rationale this court used to determine that the provision of health-insurance coverage constituted spousal support suggests that requiring one spouse to provide health-insurance coverage for the other spouse would not be permissible under a prenuptial agreement pursuant to which the spouses had waived any claim or right to support, maintenance, or alimony.
In Peace, we pointed out that, in past opinions, we had recognized that the provision of health-insurance coverage may constitute periodic alimony, citing Robinson v. Robinson, 795 So. 2d 729, 731 (Ala. Civ. App. 2001) (observing that the trial court "awarded the wife periodic alimony in the form of a requirement that the husband pay for her health insurance for 36 months"); Parker v. Parker, 639 So. 2d 1376, 1380 (Ala. Civ. App. 1994) (noting that "the wife was awarded $500 per month plus $215 per month for COBRA [health-insurance] coverage as periodic alimony"); and Elliott v. Elliott, 579 So. 2d 1383, 1384 (Ala. Civ. App. 1991) (affirming an award to the wife of "$125.00 per week alimony as long as the husband maintains a specific hospital and medical insurance benefit for the wife, but should that insurance cease, the alimony payments increase to $150.00 per week"). We also recognized that this court has held that the provision of health-insurance coverage is an obligation that is modifiable. See Brinkley v. Brinkley, 646 So. 2d 49 (Ala. Civ. App. 1994).
Here, under the heading of "Medical Insurance for Minor Children" in the final judgment, the trial court directed the husband "to keep and maintain a COBRA medical insurance policy for the [wife] for at least 12 months from the date of this judgment or until such time as the [wife] obtains or has medical insurance available to her through her employment, whichever shall first occur." Based on the authority previously mentioned, we conclude that the trial court’s requirement that the husband provide health-insurance coverage to the wife provided her with a form of spousal support in contravention of the terms of the prenuptial agreement. The trial court did not have the authority to award spousal support in the divorce judgment in a manner that was inconsistent with the prenuptial agreement. See Murphy v. Murphy, 253 So. 3d 403, 407 (Ala. Civ. App. 2017). Therefore, the trial court erred in directing the husband to provide COBRA health-insurance coverage for the wife for up to a year and that portion of the judgment making such an award is due to be reversed.
Conclusion
For the reasons set forth herein, we affirm the partial summary judgment finding that the prenuptial agreement was enforceable, affirm the trial court’s divorce judgment with regard to the issues the wife raises on appeal, reverse the divorce judgment insofar as it orders the husband to provide COBRA health-insurance coverage for the wife, and remand the cause to the trial court for the entry of a judgment consistent with this opinion.
The husband’s request for an attorney fee on appeal is denied.
2210318—AFFIRMED.
2210376—REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur.