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REL: December 9, 2022




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 ALABAMA COURT OF CIVIL APPEALS
                               OCTOBER TERM, 2022-2023
                                _________________________

                                           2200969
                                   _________________________

                                      Anjanette Anderson

                                                      v.

                                        William Anderson

                      Appeal from Lauderdale Circuit Court
                                 (DR-19-900280)


MOORE, Judge.

        Anjanette Anderson ("the wife") appeals from a judgment entered

by the Lauderdale Circuit Court ("the trial court") divorcing her from

William Anderson ("the husband"). We affirm the judgment.
2200969

                              The Judgment

     On July 23, 2021, after a trial at which it received ore tenus

evidence, the trial court entered a judgment divorcing the parties on the

ground of incompatibility of temperament. The judgment, among other

things, awards the husband the marital residence, divides the parties'

personal property, requires each party to pay his or her individual debts,

and denies either party alimony.         The judgment further awards the

husband sole custody of the parties' two minor children, requires the

husband to maintain health-insurance coverage for the benefit of the

minor children, and declines to award the husband any child support. On

August 18, 2021, the wife filed a postjudgment motion, arguing, among

other things, that the trial court had erred in failing to award her periodic

alimony, in awarding the husband the marital residence, and in dividing

the parties' personal property. The trial court denied the postjudgment

motion on August 20, 2021. The wife filed a timely notice of appeal on

September 2, 2021.




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                                The Issues

     On appeal, the wife argues that the trial court erred in dividing the

marital property and in failing to award her periodic alimony.

                                 Analysis

     Under Ala. Code 1975, § 30-2-51(b)(1), a trial court, when divorcing

parties, shall make an equitable division and distribution of the marital

property.   "Equitable division and distribution involves the 'fair ...

allocation' of marital property." Corriveau v. Corriveau, [Ms. 2200425,

Nov. 19, 2021] ___ So. 3d ___, ___ (Ala. Civ. App. 2021) (quoting Black's

Law Dictionary 679 (11th ed. 2019)). When a trial court receives oral

testimony, this court presumes the correctness of the trial court's

judgment, and this court may reverse that judgment only when the

appellant shows that the trial court abused its broad discretion in

dividing the marital property. See Sumerlin v. Sumerlin,
964 So. 2d 47

(Ala. Civ. App. 2007). "A property division that favors one party over

another does not necessarily indicate an abuse of discretion by the trial

court." Fell v. Fell,
869 So. 2d 486, 496
 (Ala. Civ. App. 2003).




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     The salient evidence regarding the division of the marital property

is as follows. At the time of the trial, the husband was 60 years old and

the wife was 54 years old. The parties had been married for over 29 years

at the time of their separation on October 1, 2019. The parties had three

children, two of whom were minors at the time of the trial. The parties

separated in October 2019 following an incident at a local motel. The

husband testified that he had found the wife staying at the motel and

that, when he entered her motel room, he had found her clad in lingerie.

According to the husband, the wife had said that she had been drinking

wine with her friends. The wife testified that she had been staying at the

motel to protect herself from the husband, who she described as abusive.

The husband denied that he had ever physically abused the wife and the

wife did not produce any evidence to corroborate her allegations of abuse.

The wife also claimed that the parties' minor children had been abusing

her and had been forcing her to stay in a locked bedroom in the marital

residence, claims that the husband also denied. The husband testified

that, to the contrary, the parties' children had left the marital residence

in 2014 because of alleged physical abuse by the wife and that the State

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Department of Human Resources had twice investigated the wife for

allegedly abusing the children.

     Before their separation, the parties had lived together with the two

minor children in the marital residence in Florence. The parties did not

own any other real property. The husband testified that the marital

residence had been purchased 31 years ago and that he and the wife had

lived together in the marital residence from the time of their marriage in

1990 until the wife moved out in October 2019. According to the husband,

the mortgage payments on the note securing the mortgage of the marital

residence, which were $620 per month at the time of the trial, were paid

from a joint checking account. The wife testified that she had directly

deposited her paycheck into that account, but the husband testified that

the wife would subsequently withdraw those funds from the account, and,

thus, he said, she had not contributed to the payment of the mortgage

note. The wife disputed that testimony, but she did not proffer any direct

evidence demonstrating any contributions that she had made toward the

payment of the mortgage note. The wife also did not testify that she had

made or had contributed to any improvements to the marital residence.

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The husband testified that, at the time of the trial, the marital residence

had a fair market value of $108,000 and that $25,000 was still owed on

the mortgage note. The wife testified that the mortgage-note balance was

$27,000. At one point during the trial, the wife requested half of the

equity in the marital residence, but she later testified that "with the

equity of the home I'll just give it to the [parties' children]."

      During the marriage, the husband worked as a law-enforcement

officer and the wife worked as a nurse. The husband testified that he had

also owned a profitable car-wash business but that he had sold that

business in 2008. When the husband worked overtime, the wife would

care for the parties' children. The husband retired in 2018 and, at the

time of the trial, was receiving approximately $2,000 a month in Social

Security disability benefits.     The husband also owns an individual

retirement account ("IRA") that, at the time of the trial, had a balance of

$552,000. According to the husband, the wife had worked at a local

hospital until it closed and, upon its closing, had received a retirement

"payout." Neither party specified the amount of the payout, but the

husband testified that, at one point, the wife had deposited $15,000 into

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her separate bank account, the funds of which, he said, he had not

accessed. After the hospital closed, the wife worked as a traveling nurse,

earning $60 per hour. The husband testified that, in 2019, when the

parties separated, the wife was earning approximately $3,500 every two

weeks. The wife stated that she had been unemployed since October 2019

and that she could no longer work as a nurse because, she said, in April

2019 she had suffered a mental breakdown and her nursing license had

been revoked by the State Board of Nursing. The wife testified that, since

March 2020, she had been living in Louisiana with her fiancé, who, she

said, supports her financially and provides her with health-insurance

coverage.

     The parties had accumulated various automobiles and recreational

vehicles over the years, including a boat and several automobiles in

salvageable condition. The husband testified that he had purchased all

the automobiles and recreational vehicles, but the wife testified that she

had contributed to the purchase of a 2004 GMC Yukon Denali

automobile. The wife requested that the trial court award her the Yukon

Denali and the 2010 Chevrolet Camaro automobile that she regularly

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drove. The wife testified that she was not claiming any interest in the

recreational vehicle, including the boat or the salvageable automobiles.

     The husband testified that, before they separated, the parties had

had a joint savings account and a joint checking account.       The wife

testified that she had directly deposited her paycheck into the joint

checking account and that the husband would then give her $200 per

week as spending money. Although the checking account was a joint

account, the wife claimed that she could not access the account without

the husband's permission. The husband, on the other hand, testified that

the wife had not contributed to the joint checking account and that he

had not limited her spending to $200 per week; instead, the husband said,

although the wife's paycheck was deposited into the joint checking

account, she would immediately withdraw that money for her own use.

He testified further that the wife had withdrawn all the funds in that

account when she left the family in October 2019. The husband testified

that, in the 10 years preceding their separation, the wife had separated

herself financially from the family and had used her wages solely for her

own benefit, purchasing designer-brand clothing and accessories. The

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husband testified that, since 2008, he had paid most of the family's

expenses and all the marital debts out of his salary as a law-enforcement

officer, which was $42,000 per year, and from the proceeds he had

received from the sale of the car-wash business. The husband testified

that the wife took all of her personal property with her when she left in

October 2019 and that he had noticed that $6,000 worth of custom fishing

rods and fishing reels were also missing.

     The husband testified that, after the wife left the family in October

2019, he had cared for the minor children without any financial support

from the wife. The husband testified that he pays $800 per month for a

health-insurance policy that covers the minor children and himself, that

he had purchased a 2011 Chevrolet Malibu automobile for one of the

minor children and had been making the payments on that automobile,

and that he pays for the minor children's automobile insurance. The wife

claimed that the minor children had changed the name on her credit

cards without her permission and had made unapproved charges totaling

$35,000 on those credit cards. The husband testified that the minor




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children had charged only $700 on the wife's credit cards for clothes for

school just before the wife left the marital residence in October 2019.

      In her brief to this court, the wife asserts that the husband received

the entirety of the marital property with the lone exception of her

personal automobile. The wife overlooks the evidence indicating that she

had separated herself financially from the husband in the 10 years before

the parties separated; that she had used her retirement payout solely for

her own personal benefit; that, when she left the family, she had taken

with her all of her personal property as well as all the funds in the parties'

joint checking account, which was estimated by the husband to be

between $5,000 and $6,000; that she was relieved of the duty to repay the

mortgage note associated with the marital residence, which had a

balance of approximately $25,000; and that she was not ordered to pay

any child support for the benefit of the parties' minor children. The wife

nevertheless argues that she should have received a portion of the equity

in the marital residence and a portion of the funds in the husband's IRA.

      From the conflicting evidence in the record, the trial court could

have determined that the equity in the marital residence was

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2200969

approximately $80,000 and that the wife had not directly contributed to

the payments on the debt for that marital asset, which, it could have

determined, were made solely with funds contributed by the husband.

See Courtright v. Courtright,
757 So. 2d 453, 456
 (Ala. Civ. App. 2000)

(requiring a court to consider the source of the marital property when

dividing the marital estate). The trial court could also have determined

that the wife had disclaimed any interest in the equity in that asset

because the wife had testified that, if her award of marital property

included any part of the value of the marital residence, she would give

that money to the parties' children. Based on those determinations, the

trial court could have exercised its discretion to determine that the wife

should not be awarded any part of the equity in the marital residence.

See Lo Porto v. Lo Porto,
717 So. 2d 418, 421
 (Ala. Civ. App. 1998)

(quoting Pattillo v. Pattillo,
414 So. 2d 915, 917
 (Ala. 1982)) ("The purpose

of the division of marital property is to give 'each spouse the value of [his

or her] interest in the marriage.' ").

      When deciding whether to award a spouse an interest in the

retirement benefits of the other spouse, a trial court is guided by the same

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factors relating to the overall division and distribution of the marital

estate.   See § 30-2-51(b).   The court can consider the source of the

retirement benefits; any contributions, financial or otherwise, that the

spouse of the retiree made toward the accumulation of those benefits; any

debts or liabilities owed by the retiree and the spouse under the divorce

judgment or otherwise; the age, health, future prospects, and ability to

earn of the retiree and the spouse; the cause of the breakdown of the

marriage; and any other factor weighing on the determination of the

equities of the case. See Kline v. Kline, [Ms. 2200164, Oct. 8, 2021] ___

So. 3d ___ (Ala. Civ. App. 2021). The term "retirement benefits" includes

a party's interest in a retirement account. See § 30-2-51(b)(1).

     Based on its consideration of the evidence and its own independent

weighing of the evidence, the trial court could have determined that it

would be inequitable to award the wife any portion of the husband's IRA.

In addition to the evidence indicating that the wife had treated her own

retirement payout as her separate property, some evidence in the record,

although disputed, indicates that the wife had long separated herself

financially from the husband before the trial, and one view of the

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evidence indicates that the wife had abandoned the family and had

assumed a relationship with another man, whom she described as her

fiancé. Furthermore, the evidence was undisputed that the husband had

retired in 2018 and that his sole source of income was $2,000 per month

in Social Security disability benefits.     The trial court could have

determined that the husband, who was 60 years old at the time of the

trial and evidently disabled, would be depending on his IRA and Social

Security disability benefits to support himself for the remainder of his

life. Although the wife testified that she could not work, the trial court

could have disbelieved her testimony and determined that she could earn

sufficient funds to support herself. Additionally, the trial court did not

award the husband any child support, so his IRA and Social Security

disability benefits would also be needed to support the parties' minor

children, at least until they reached the age of majority.      The wife

presented almost no evidence of any nonfinancial contributions to the

marriage. At one point, the husband testified that the wife had cared for

the parties' children while he was working a great deal of overtime, but

the trial court also heard evidence indicating that the husband had been

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the sole caretaker of the parties' minor children after the wife separated

from the family in October 2019 and that he would continue that role as

their sole custodian. Thus, the trial court could have discounted the

wife's nonfinancial contributions to the marriage.

     The evidence as to the parties' personal property was limited. The

husband testified that the wife had withdrawn all the funds in their joint

checking account when she left the family in October 2019 and that she

had taken a 2010 Chevrolet Camaro automobile, which was awarded to

the wife in the divorce judgment. In addition, the husband indicated that

the wife had taken all of her other personal property with her and that

she might have taken $6,000 worth of his custom fishing rods and fishing

reels as well. The specific nature of the personal property that the wife

allegedly took is not disclosed in the record, but the husband testified

that, over the years, the wife had purchased many luxury items with her

own funds, so the trial court could have inferred that the wife had

retained those items. The wife specifically testified that she did not want

any interest in the salvageable automobiles and boat. The judgment

essentially provided that each party would retain the personal property

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2200969

in his or her possession. Given the scant evidence on this point, the

record does not indicate that the trial court abused its discretion by

dividing the parties' personal property as it did.

     Finally, the trial court did not abuse its discretion by denying the

wife periodic alimony. In her postjudgment motion, the wife argued to

the trial court that it had erred in denying her "alimony" because, she

asserted, she was not working, she did not have a sufficient estate to

provide for herself, and the parties had been married for more than 29

years at the time of their separation. We infer that by making that

argument, the wife was referring to periodic alimony, which is an

allowance for future support, as opposed to alimony in gross, which is "a

monetary award intended to settle the parties' property rights in the

marital estate." Jones v. Jones, [Ms. 2200988, June 30, 2022] ___ So. 3d

___, ___ (Ala. Civ. App. 2022).      On appeal, the wife reiterates the

arguments she made in her postjudgment motion, citing Ala. Code 1975,

§ 30-2-57, which governs solely periodic and rehabilitative alimony and

not alimony in gross. In her brief, the wife mentions alimony in gross, in

passing, but she does not develop any argument that she should have

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been awarded alimony in gross, see May v. May,
292 So. 3d 385
, 388 (Ala.

Civ. App. 2019) (stating that this court will not consider an undeveloped

argument as a basis for reversing a judgment), which argument this court

could not have considered because any alleged error in failing to award

alimony in gross was not first raised in the trial court. See Andrews v.

Merritt Oil Co.,
612 So. 2d 409, 410
 (Ala. 1992) ("This Court cannot

consider arguments raised for the first time on appeal; rather, our review

is   restricted   to    the   evidence        and   arguments   considered   by

the trial court."). In response to the argument the wife made to the trial

court and now makes to this court on appeal -- that she should have been

awarded periodic alimony -- the wife testified that, at the time of the trial,

she was cohabiting with her fiancé, who, she said, was financially

supporting her. Under Ala. Code 1975, § 30-2-55, alimony is not payable

when a former spouse is cohabiting with another adult individual in that

type of relationship.

      For the foregoing reasons, the judgment of the trial court is

affirmed.

      AFFIRMED.

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    Edwards, Hanson, and Fridy, JJ., concur.

    Thompson, P.J., dissents, with opinion.




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THOMPSON, Presiding Judge, dissenting.

     The record contains disputed evidence with regard to the marriage

of Anjanette Anderson ("the wife") and William Anderson ("the

husband"), such as who contributed to the purchase of the marital

residence and the parties' level of commitment to the marriage in the last

few years preceding the divorce. However, undisputed evidence was

presented that the parties had been married for 29 years and that, until

the parties separated, the wife had lived in the marital residence and had

helped to care for the parties' two minor children.          Additionally,

undisputed evidence was presented indicating that the wife could no

longer work in her chosen profession and that she was dependent on

another for financial support and health insurance.

     "[T]he judgment of a trial court following an ore tenus
     proceeding is presumed to be correct and will not be reversed
     absent plain and palpable error. Hamby v. Hamby,
575 So. 2d 580
 (Ala. Civ. App. 1991). Further, matters involving alimony
     and property settlement incident to divorce are within the
     sound discretion of the trial court and will not be disturbed on
     appeal except where such discretion was palpably abused.
     Kelley v. Kelley,
579 So. 2d 1362
 (Ala. Civ. App. 1991). The
     issues concerning alimony and property division are
     interrelated, and the entire judgment must be considered in
     determining whether the trial court abused its discretion.
     Montgomery v. Montgomery,
519 So. 2d 525
 (Ala. Civ. App.
                                     18
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     1987). The property division need not be equal, but must be
     equitable [in light of the evidence], and a determination of
     what is equitable rests within the broad discretion of the trial
     court. Daugherty v. Daugherty,
579 So. 2d 1377
 (Ala. Civ.
     App. 1991);
Kelley, supra.
"

Parrish v. Parrish,
617 So. 2d 1036, 1038
 (Ala. Civ. App. 1993). It is well

established that a property division "that favors one party over the other

is not in and of itself an abuse of discretion." See Boykin v. Boykin,
628 So. 2d 949, 952
 (Ala. Civ. App. 1993)(citing Jordan v. Jordan,
547 So. 2d 574
 (Ala. Civ. App. 1983)). However, a property division that heavily

favors one party over another at the end of a lengthy marriage

necessitates careful scrutiny of the facts to ensure that the property

division is equitable.

     After considering the evidence presented, I cannot conclude that the

property division in this case is equitable. "The purpose of a property

settlement in a divorce action is to give 'each spouse the value of [his or

her] interest in the marriage.' Pattillo v. Pattillo,
414 So. 2d 915, 917

(Ala. 1972)." Spuhl v. Spuhl,
120 So. 3d 1071, 1075
 (Ala. Civ. App. 2013).

In Adams v. Adams,
778 So. 2d 825
 (Ala. Civ. App. 2000), the trial court

awarded the wife approximately 16% of the value of the marital property

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and the husband approximately 84% of the value of the marital property.

This court held "that the property award to the wife [was] so

disproportionate as to be inequitable" and reversed the judgment.
778 So. 2d at 827
.

     In this case, after a 29-year marriage, the wife was awarded a 2010

Chevrolet Camaro automobile, her remaining retirement funds, and her

personal property, the total value of which constitutes less than 10% of

the value of the marital property. The husband was awarded a 2014

Chevrolet Silverado automobile, a 2004 GMC Yukon Denali automobile,

the marital residence with equity in the amount of $83,000, his

retirement account in the amount of $552,000, and his personal property.

In my opinion, the trial court's failure to award the wife any part of the

equity in the marital residence or the husband's retirement account -- the

two largest assets in the marriage valued at approximately $635,000 --

resulted in an inequitable division of marital property. See Stewart v.

Stewart,
62 So. 3d 523, 530
 (Ala. Civ. App. 2010)(holding that property

division was inequitable when the husband was awarded $46,000 in the

marital property and the wife was "essentially awarded nothing"). Like

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the wife in Stewart, the wife in this case was "essentially awarded

nothing" from a 29-year marriage; therefore, I would reverse the portion

of the trial court's judgment addressing property division and alimony

and would remand the case to allow the trial court to enter an equitable

judgment.1

     Additionally, I cannot agree with the main opinion that the trial

court could infer that the wife disclaimed any interest in the equity in the

marital residence from her statement that she would give any funds she

received from her interest in the marital residence to the children. Unlike

her statement that she did not "want" the salvageable vehicles or the

boat, which indicates that she did not claim any interest in those items,

the wife's statement about the marital residence indicates that she



     1Although    evidence was presented from which the trial court could
have concluded that the wife was not entitled to periodic alimony, see §
30-2-55, Ala. Code 1975, evidence was also presented from which the trial
court could conclude that the wife qualified for an award of alimony in
gross, see § 30-2-57, Ala. Code 1975. Thus, reversal of the alimony award
in light of its interrelationship to the property division is proper. See
Powell v. Powell,
628 So. 2d 832, 834
 (Ala. Civ. App. 1993)(recognizing
that "funds paid into a retirement plan are an asset of the husband which
may be considered by the court in effecting an equitable property division
or an award of alimony in gross").
                                     21
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believes that she does have an interest in that property. I cannot agree

that the wife's testimony that she would give the children any funds she

received from the equity in the marital residence negates "the value of

[her] interest in the marriage." Spuhl,
120 So. 3d at 1075
.

     For the foregoing reasons, I respectfully dissent.




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