Opinion
2200720
05-06-2022
Megan Brooks Burkett v. Clifton Douglas Burkett
Appeal from Butler Circuit Court (DR-20-900032) THOMPSON, Presiding Judge.
THOMPSON, Presiding Judge.
Megan Brooks Burkett ("the wife") appeals from the judgment of the Butler Circuit Court ("the trial court") divorcing her from Clifton Douglas Burkett ("the husband"). We affirm the judgment in part, but reverse in part the trial court's order denying the wife's postjudgment motion and remand the cause with instructions.
In February 2016, the husband and the wife started dating; in July 2017, they became engaged; and, in April 2018, they married. On February 25, 2019, the parties' child, E.B. ("the child), was born. On May 18, 2020, the parties separated, and on May 20, 2020, the husband filed a complaint for a divorce, alleging an irretrievable breakdown of the marriage and asking, among other things, for custody of the child. On June 3, 2020, the wife filed a motion for temporary custody of the child, child support, and possession of the marital residence. After conducting a hearing, the trial court entered a pendente lite order that, among other things, awarded the parties' joint legal and physical custody of the child, awarded the wife child support in the amount of $500 a month, and awarded the husband use and possession of the marital residence during the pendency of the divorce action. The order further provided that the trial court found the amount of temporary child support to be equitable after considering the parties' individual incomes, the award of joint physical custody of the child, and the husband's assuming responsibility to pay for the child's health insurance. The order also provided that the award of the marital residence to the husband was based on the trial court's findings, which, in turn, were based on testimony, that the husband had purchased the marital residence before the parties married and that the wife did not intend to make a claim to the residence during the proceedings.
On June 30, 2020, the wife filed an answer, in which she denied each allegation in the husband's complaint, and a counterclaim, which she subsequently amended, asking, among other things, for sole physical custody of the child.
On February 23, 2021, the trial court conducted ore tenus proceedings. The husband testified that the wife's behavior had grown increasingly erratic during the marriage. He stated that, shortly after the parties married, they began counseling sessions to resolve their marital problems but that the counseling had not been successful. The wife testified that she had suffered from postpartum depression after the child was born and that her depression had impacted the marriage. She stated that she had sought treatment for the disorder, for which she began taking medication, and that the symptoms had subsided by August 2019.
The wife further testified that the breakdown in the parties' marriage had been caused by the husband's work schedule, the demands of the husband's family, and the husband's controlling behavior. The wife stated that the husband, who was employed by his family's business, had chosen the family business over spending time with her and the child. During the marriage, the husband worked long hours and during the Christmas season it was not unusual for two weeks to pass before the husband had a day off.
The husband and the wife both testified that they loved the child. Each parent claimed to be the child's primary caregiver during the marriage. The husband testified that, since the birth of the child, he had cared for the child at night, had fixed her bottles, had changed her diapers, had purchased food for her, had stayed home with her when she was sick, and had made her doctor's appointments. According to the husband, before the parties separated, he had cared for the child at least 50% of the time. He explained that, after he had filed the divorce complaint and the trial court had entered its pendente lite order awarding the parties joint custody of the child, he and the wife had alternated weeks of custody with the child. He testified that, during the weeks that he had had custody of the child, he had adjusted his work schedule, even during the busy Christmas season, to allow him to care for and to meet the needs of the child. He stated that family is important to him and that his parents, as well as his sister and her family, were involved in the child's life.
The wife testified that she had been the child's primary caregiver during the marriage. The wife insisted that, because the husband worked constantly, he had not been present to take care of the child. For example, she stated that, from September to January each year, the husband worked over 80 hours per week and, consequently, was not home and could not take care of the child. The wife admitted that, although she did not work on Fridays, the child either stayed with a sitter or attended day care on that day.
When asked about the wife's ability to care for the child, the husband testified that, when the child was in the wife's custody, the wife did take care of the child. Similarly, when the wife was asked about the husband's ability to care for the child, she testified that, when the husband is present, he is a good dad.
Eleanor Grayson, who was hired by the parties when the child was an infant to care for the child during the day, testified that the husband had been a "hands-on" parent. For example, she said, the husband made the child breakfast, changed her diapers, and tended to her "boo-boos." Moreover, she said, when she arrived in the mornings, the husband would be attending the child and dressing the child for the day. Grayson testified that she seldom witnessed the wife caring for the child and that, even on the wife's day off, when the wife shopped, ran errands, etc., she would care for the child because the wife did not take the child with her. Grayson admitted that the husband's work schedule varied and that sometimes he worked past 5:00 p.m. She stated that, from her observations, the husband was the primary person taking care of child.
The husband testified that, when the child became old enough to attend school, he wanted to enroll the child at Fort Dale Academy, a private Christian school. He stated that he was willing to pay for the child's tuition, which is approximately $400-500 per month. He, however, asked the trial court to order that he and the wife share responsibility for other school and extracurricular expenses that they would incur regardless of whether the child attended private school or public school. The wife stated that she wanted the child to attend public school to receive a "more advanced" education.
With regard to child support, the husband testified that his income, which was derived from his employment with the family business and from Burkett Rentals, LLC, a company that he started before the marriage that purchases and rents properties, was approximately $7,200 per month. The wife testified that she worked 32 hours per week as a dental hygienist at the rate of $13 per hour. The husband stated that, although he and the wife were sharing joint physical custody of the child, he was currently paying the ordered $500 in child support and that he was willing to continue to pay that amount. He also testified that he had been maintaining health insurance for the child and wanted to continue to do so. The trial court admitted into evidence a "Child Support-Obligation Income Statement/Affidavit" (Form CS-41) from each party and a "Child-Support Guidelines" form (Form CS-42).
Each party asked the trial court to order that each party continue to maintain a life insurance policy for the benefit of the child in the amount of $200,000. The husband asked that the trial court require the policies to be maintained until the child reaches the age of 22 years old; the wife asked that the trial court require the policies to be maintained until the child reaches the age of 19 years old.
With regard to the parties' marital personal property, the husband testified that, in August 2020, after the wife had left the marital residence, the parties divided that personal property. The wife disagreed that all the marital personal property had been divided, and she testified that she would like to be awarded certain items -- household furnishings, Christmas ornaments, etc. -- that she said remained in the husband's possession. No testimony was presented with regard to the value of the marital personal property.
The wife asked the trial court to order the husband to return to her the engagement ring that the husband had given to her when she accepted his proposal of marriage. The record indicates that, in pretrial proceedings, the trial court had ordered the wife to return the engagement ring to the husband; the record, however, does not contain a transcript of a hearing or a pretrial order addressing ownership of the engagement ring. The wife testified in her deposition, which was admitted into evidence, and at trial that the engagement ring had been a gift, was her separate personal property, and was not marital personal property. She stated that she did not intend to sell the engagement ring; rather, she wanted to give the ring to the child when the child was older. She asked that, if the trial court decided to award the engagement ring to the husband, it award her the value of the ring. The husband testified that the engagement ring was a family heirloom that he had given the wife when she had accepted his proposal of marriage and he asked that he be awarded the ring. An appraisal of the engagement ring indicating its value as $4,500 was admitted into evidence.
With regard to the parties' financial accounts, the evidence indicates that the parties maintained both joint and individual banking accounts. Additionally, the husband maintained an account for Burkett Rentals. The husband testified that the parties have no joint debt. The wife testified that, in 2018, the husband had assisted her financially by helping her satisfy her student-loan debt in the amount of $7,000 with payments from their joint checking account. She admitted that her current financial situation was better than it was before the parties married, but she insisted that her low credit score, which she said was caused by all the parties' purchases having been made in the husband's name during the marriage, impacted her current ability to make purchases.
The record indicates that, during the marriage, a vehicle was purchased for the wife in the husband's name. According to the husband's testimony, he made the purchase because the wife's credit score was low and his credit score allowed them to obtain better financing rates.
With regard to retirement accounts, the husband testified that, when the parties married in April 2018, he had an existing individual retirement account that had a balance of $27,000, and he stated that, when he filed the divorce complaint in May 2020, the balance of that account was $32,000. The wife testified that she maintained a retirement account through her employment and that it contained approximately $1,000.
The husband testified that the parties had maintained a savings account for the child's college education ("the 529 account") that contained approximately $2,000. He stated that, during the marriage, a monthly deposit of $150 from one of the parties' joint accounts had been made into the 529 account, that the funds in that joint account had come from his income, that after the separation he had continued to fund the 529 account, and that he would like to maintain the 529 account. The wife testified that, since the parties had separated, she had not contributed to the child's 529 account. She stated that, when her financial circumstances improved, she would like to make regular contributions.
The husband testified that he purchased the marital residence before the parties were married. According to the husband, the wife participated in the renovation of the residence by selecting paint colors. The wife testified that, when the husband purchased the residence, it was not habitable. She stated that she cleaned the residence, helped pull up flooring, selected paint colors, and purchased with her money "little items here and there." According to the wife, the wife's father had assisted with the renovation but had not been paid for his labor. The wife further testified that she and the husband moved into the marital residence at the same time in January 2017. The trial court admitted into evidence a document submitted by the husband indicating that he had purchased the residence in November 2016, that the loan amount to purchase the residence was $96,000, that the loan balance as of July 2020 was $85,936, that the tax value of the marital residence was $97,000, and that, in the husband's opinion, the value of the marital residence was $97,000. The wife did not submit any evidence concerning the value of the marital residence.
The husband testified that he is the sole member of Burkett Rentals and that at the time of the trial, the company owned seven rental properties. He testified that he had found the properties and had secured the financing to make the acquisitions, with the exception of one property, which had been given to him by his mother. Four properties, including the gifted property, were acquired during the marriage. With regard to the gifted property, the husband explained that, in November 2019, his mother had given that property to him because she had given his sister a comparable gift and wanted to do the same for him. Similar testimony explaining the acquisition of the gifted property was presented by the husband's mother. The husband testified that each property rented for between $500-$750 per month. The husband asked the trial court to award him all the properties owned by Burkett Rentals. The trial court admitted into evidence a document submitted by the husband that indicates that three properties owned by Burkett Rentals were purchased before the parties married. The document further indicates the following with regard to the four properties acquired during the marriage: The property acquired in November 2018 was purchased with a loan for $36,000; as of July 2020, $34,101 remained on the loan; and the tax value of the property was $47,200. The property acquired in August 2018 was purchased with a loan for $45,000; as of July 2020, $41,959 remained on the loan; and the tax value of the property was $56,300. The gifted property was acquired in November 2019 and had a tax value of $29,200. The property acquired in May 2020, after the husband had filed the complaint for a divorce, was purchased with a loan for $36,800; as of July 2020, $36,800 remained on the loan; the tax value of the property was $20,100; and the husband indicated that the value of that property was $40,000. The wife did not present any evidence regarding the value of the properties owned by Burkett Rentals.
Shannon Carroll, an employee of the business owned by the husband's family, testified that the husband is a hard worker who sometimes has to work more than eight hours a day. She testified that, before the parties separated, the husband worked a lot of hours, which fluctuated depending upon his responsibilities, and that he arrived before 7:00 a.m. on some mornings and left around 8:00 p.m. on some evenings.
Because demands were placed on the family business during the Christmas season, Carroll said, the husband frequently worked seven days a week from October to January. According to Carroll, before the parties separated, the child seldom came to the store operated by the family business but, after the separation, when the husband had custody of the child, he left work earlier and on occasion brought the child to work with him.
On March 10, 2021, the trial court entered a judgment of divorce ("the divorce judgment"). The trial court awarded the parties joint legal and physical custody of the child, with the husband having final decision-making authority with respect to the child's educational needs and the wife having final decision-making authority with respect to the child's medical needs. The husband was ordered to pay the wife $500 per month in child support, to continue to provide the child's medical insurance, and to pay the child's tuition to attend Fort Dale Academy. The parties were ordered to divide equally the child's noncovered medical expenses, day care and school expenses (other than the tuition to Fort Dale Academy) and agreed upon extracurricular-activity expenses. The trial court awarded the husband the marital residence and 100% of his ownership interest in Burkett Rentals and the properties owned by Burkett Rentals. The trial court specifically found that three properties owned by Burkett Rentals had been purchased during the marriage, which had benefited both parties, and awarded the wife $10,000 to compensate her for her equitable interest in those properties. The trial court further found that the wife did not have an equitable interest in the gifted property. The trial court awarded each party various financial accounts and awarded each party his or her individual retirement account. The trial court ordered each party to maintain a life-insurance policy in the minimum amount of $200,000, naming the child as a beneficiary, until the child reaches 22 years of age, marries, or otherwise becomes self-supporting. The trial court found that the marital personal property already had been divided and awarded each party the marital personal property in his or her possession as of February 23, 2021. Lastly, the trial court denied any relief requested by the parties that was not specifically addressed in the divorce judgment.
On March 25, 2021, the wife filed a postjudgment motion, pursuant to Rule 59, Ala. R. Civ. P., asking the trial court to conduct a hearing to address her grounds that the trial court had erred by awarding the parties joint physical custody of the child during the months of September through January, when the husband's work schedule was most demanding; by failing to include income derived from the rental properties owned by Burkett Rentals when calculating the child-support award; in dividing the marital real property and personal property; and by failing to award her the engagement ring or the value thereof. Specifically, with regard to the engagement ring, the wife alleged that "the [trial] court failed to consider the value of the engagement ring in the undisputed amount of $4,500.00. A gift prior to the marriage that should be retained by [the wife]." On April 1, 2021, the husband filed a response to the wife's postjudgment motion. In his response, the husband argued that the evidence did not support a finding that his work schedule during the months of September through January prevented him from properly caring for the child when the child was in his custody. Additionally, he argued that the real-property division was equitable because, he said, the evidence established that the rental properties had not been used for the benefit of the parties during their two-year marriage. With regard to the personal-property award, the husband noted that no evidence had been presented from which the trial court could determine the value of the marital personal property. On May 3, 2021, the trial court, without conducting a hearing, denied the wife's postjudgment motion. On June 22, 2021, the wife filed her notice of appeal.
" 'When a trial court hears ore tenus evidence, its judgment based on facts found from that evidence will not be disturbed on appeal unless the judgment is not supported by the evidence and is plainly and palpably wrong. Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala. Civ. App. 1990). Further, matters of child support are within the sound discretion of the trial court and will not be disturbed absent evidence of an abuse of discretion or evidence that the judgment is plainly and palpably wrong. Id.'
"Spencer v. Spencer, 812 So.2d 1284, 1286 (Ala. Civ. App. 2001). However, the trial court's application of law to facts is reviewed de novo. See Ladden v. Ladden, 49 So.3d 702, 712 (Ala. Civ. App. 2010)."Jones v. Jones, 101 So.3d 798, 802 (Ala. Civ. App. 2012).
On appeal, the wife contends that the trial court exceeded its discretion by failing to conduct a hearing on her postjudgment motion.
" 'Generally, when a party requests a hearing on a postjudgment motion [filed pursuant to Rule 59], the court must grant that request.' Mobile Cnty. Dep't of Human Res. v. C.S., 89 So.3d 780, 784 (Ala. Civ. App.2012). Rule 59(g), Ala. R. Civ. P., provides that a postjudgment motion 'shall not be ruled upon until the parties have had opportunity to be heard thereon.' We have also held that,
" '[a]lthough it is error for the trial court not to grant such a hearing, this error is not necessarily reversible error. For example, if an appellate court determines that there was no probable merit to the motion, it may affirm based on the harmless-error rule. See Rule 45, Ala. R. App. P.; and Kitchens v. Maye, 623 So.2d 1082, 1088 (Ala.1993)("failure to grant a hearing on a motion for new trial pursuant to Rule 59(g) is reversible error only if it 'probably injuriously affected substantial rights of the parties' ").'"Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala. 2000).
" '" 'Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.'" '
"DWOC, LLC v. TRX Alliance, Inc., 99 So.3d 1233, 1236 (Ala. Civ. App. 2012)(quoting Kitchens v. Maye, 623 So.2d 1082, 1088-89 (Ala. 1993), quoting in turn Greene v. Thompson, 554 So.2d 376, 381 (Ala. 1989))."House v. House, 185 So.3d 1112, 1117-18 (Ala. Civ. App. 2015). Accordingly, to determine whether the trial court committed reversible error by not conducting a hearing on the wife' postjudgment motion, this court must consider whether a ground raised in the wife's postjudgment motion, and argued on appeal, has probable merit or whether this court may, as a matter of law, resolve the ground adversely to her.
Initially, we observe that the wife's contentions, raised on appeal, that the trial court exceeded its discretion by ordering the parties to maintain life insurance for the benefit of the child until the child reaches the age of 22 old; by deviating from the Rule 32, Ala. R. Jud., Admin., child-support guidelines without setting forth its reasons for the deviation in the divorce judgment; by ordering the parties to divide equally the child's expenses for extracurricular activities, for her education, other than tuition for Fort Dale Academy, and for noncovered medical issues; and by failing to award the wife a portion of the funds in the husband's individual retirement account that had accrued during the marriage were not presented to the trial court as grounds of error in her postjudgment motion.
Although, as we decide in this opinion, this issue is not properly before this court, we observe that, in Whitten v. Whitten, 592 So.2d 183 (Ala. 1991), our supreme court held that a husband's obligation, under a divorce judgment, to maintain a life-insurance policy naming the child as a beneficiary terminated when the child reached the age of majority and that, thereafter, the husband was free to terminate or modify the policy.
As noted earlier, in her postjudgment motion, the wife argued that the trial court had exceeded its discretion in calculating child support because it had not included income derived from the rental properties owned by Burkett Rentals in the husband's income.
In Docen v. Docen, 294 So.3d 767, 773 (Ala. Civ. App. 2019), the husband in that case, in his postjudgment motion, alleged that the child-support award "'seemed high based on the testimony and the joint custody arrangement....'" At the hearing on the postjudgment motion, the husband's attorney argued that the trial court had exceeded its discretion in calculating the child-support award in light of the joint-custody award and the disparity between the parties' incomes. On appeal, the husband argued that, because the parties" 'shared custody'" of the child, the trial court should have, pursuant to Rule 32(A)(1)(a), Ala. R. Jud. Admin., deviated from the child-support guidelines. We observed that our supreme court has held:
"' Specific objections or motions are generally necessary before the ruling of the trial judge is subject to review, unless the ground is so obvious that the trial court's failure to act constitutes prejudicial error.' Lawrence v. State, 409 So.2d 987, 989 (Ala.Crim.App.1982). See also Ex parte Works, 640 So.2d 1056, 1058 (Ala. 1994)(recognizing that '[t]he purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury')."Ex parte J.W.B., 230 So.3d 783, 791 (Ala. 2016). We held in Docen that, because the husband had not sufficiently apprised the trial court of the objections he argued on appeal, we could not hold the trial court in error for failing to address those objections.
Like the husband in Docen, the wife in this case did not raise in the trial court the previously identified grounds presented on appeal. Because this court may not hold a trial court in error with regard to grounds not presented to that court, Allsopp v. Bolding, 86 So.3d 952, 962 (Ala. 2011), we cannot hold that the trial court erred by refusing to conduct a hearing on grounds that were not presented in the wife's postjudgment motion. Accordingly, any error by the trial court in failing to conduct a hearing regarding those issues is harmless.
Next, we address the wife's contention that the trial court exceeded its discretion by awarding joint physical custody of the child to the parties because, she says, it is not in the best interests of the child to be in the husband's custody due to his work schedule.
" '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).
A review of the record supports the trial court's award of joint physical custody of the child to the parties. Evidence was presented indicating that both parents love the child. Conflicting evidence was presented as to which parent was the primary caregiver before the parties separated. The record, however, contains ample evidence from which the trial court could have inferred that, even if the husband had been absent from the home during the marriage, the husband, after the parties separated, had adjusted his work schedule to accommodate the needs of the child. Additionally, 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. Thus, 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, and the failure of the trial court to conduct a hearing on this ground raised in the postjudgment motion was harmless.
The wife further contends that the trial court exceeded its discretion in its division of the parties' real and personal property.
"A trial court is free to consider the facts and circumstances unique to each individual case in fashioning an award. Brewer v. Brewer, 695 So.2d 1 (Ala. Civ. App. 1996). The only limitation on the trial court's broad discretion in dividing the marital estate is that the property division must be equitable under the circumstances of the particular case; the task of determining what is equitable falls to the trial court. Cantrell v. Cantrell, 773 So.2d 487 (Ala. Civ. App. 2000). A trial court's determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. See Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala. Civ. App.1993). 'This presumption of correctness is based on the trial court's being in the unique position of being able to observe the witnesses and to assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986).' Walls v. Walls, 860 So.2d 352, 357 (Ala. Civ. App. 2003).
" 'A division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. When dividing
marital property, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage.'
"Golden v. Golden, 681 So.2d 605, 608 (Ala. Civ. App.1996) (citation omitted)."Yohey v. Yohey, 890 So.2d 160, 164-65 (Ala. Civ. App. 2004). Additionally,
"[i]t is well-settled that where a trial court does not make specific factual findings, the appellate court must assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Ex parte Fann, 810 So.2d 631 (Ala. 2001); Ex parte Bryowsky, 676 So.2d 1322 (Ala. 1996)."Baggett v. Baggett, 855 So.2d 556, 559-560 (Ala. Civ. App. 2003).
With regard to the marital real property, the trial court awarded the husband the marital residence and 100% of his ownership interest in Burkett Rentals and the properties owned by Burkett Rentals. The evidence indicates that the marital residence was purchased by the husband and owned by him for approximately a year and five months before he and the wife married and that the parties lived in the residence for approximately two years after they married. The evidence further indicates that, since the purchase of the marital residence, the value of the residence has increased by only $1,000. Conflicting evidence was presented as to the wife's contribution to the renovation of the marital residence, which occurred before the parties married. Considering that the marital residence was used "for the common benefit of the parties during their marriage," see § 30-2-51(a), Ala. Code 1975, for only two years, and the evidence indicating that the value of the marital residence had increased by only $1,000 since its purchase, we cannot conclude that the trial court exceeded its discretion by awarding the husband the marital residence or by failing to award the wife an equitable interest in the marital residence.
Section 30-2-51(a), Ala. Code 1975, provides:
"If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage."
Additionally, the record indicates that the trial court did not exceed its discretion by awarding the husband 100% of his ownership interest in Burkett Rentals and the properties owned by Burkett Rentals and by awarding the wife $10,000 to compensate her for her equitable interest in the three real properties that were purchased during the marriage. In her postjudgment motion, the wife argued that because the evidence established that, when the debt owed on the three properties purchased during the marriage ($112,860) is subtracted from the value of the three properties purchased during the marriage ($143,500), the equity in those properties amounts to $30,640, thus, she says, making the $10,000 award to her unfair. The wife further argued that "[t]he amount awarded is an unfair division of property acquired during the marriage especially when [the husband] mortgaged [the property purchased after the gifted property] and left the gifted property free and clear." The wife reasons that those properties were used "for the common benefit of the parties during their marriage," §30-2-51(a) and that the award with regard to those properties is therefore inequitable.
A review of the record, however, establishes that the trial court's award to the husband of 100% of his ownership interest in Burkett Rentals and the properties owned by Burkett Rentals and the award to the wife of a lump sum of $10,000 are equitable. The three properties purchased during the marriage by Burkett Rentals were "used regularly for the common benefit of the parties during their marriage." § 30-2-51(a). The husband included income from Burkett Rentals ($1,000 per month) on his child-support affidavit. The husband testified that he had located the properties, had secured their financing, and had overseen their renovation and maintenance. No evidence was presented indicating that the wife had been involved in Burkett Rentals or that she had engaged in any business transactions or had any responsibilities with regard to the rental properties. Considering that the record supports a finding that, at most, the equity in the properties purchased during the marriage was $30,640 and that the trial court awarded the wife $10,000, we cannot conclude that this award is inequitable. See Baggett v. Baggett, 855 So.2d at 559 ("A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court.").
Likewise, the evidence supports the trial court's award of the marital personal property. Conflicting evidence that the trial court had to resolve with regard to the division of marital personal property was presented. The husband testified that the parties had divided the marital personal property before the trial. The wife testified that, although they had divided some of the marital personal property, some property, i.e., household furnishings, Christmas ornaments, etc., remained in the husband's possession and had not been divided. No evidence was presented as to the value of the marital personal property.
In Howell v. Howell, 479 So.2d 46, 46-47 (Ala. Civ. App. 1985), this court stated:
"Since the trial court heard the evidence, its finding as to the division of property is presumed to be correct and will be set aside on appeal only if it was so unsupported by the evidence as to be palpably wrong. The trial court's decision on the issue fell within that court's judicial discretion and is reversible only for an abuse thereof."
The record contains evidence in support of the trial court's determination that the marital personal property had been divided before trial, and we have no basis to conclude that the trial court's determination is erroneous or that the marital personal property had not been equitably divided. Because we have determined that the wife's arguments regarding the division of the parties' real and personal property did not have probable merit, the trial court's failure to hold a hearing on this ground raised in the wife's postjudgment motion was harmless.
We, however, cannot conclude, as a matter of law, that the trial court did not exceed its discretion with regard to its determination of the ownership of the engagement ring. Throughout the litigation, the wife contended that the engagement ring was her separate personal property, which was not subject to division, and that she should be awarded the engagement ring or, in the alternative, the value of the engagement ring. The wife alleged in her postjudgment motion that the trial court had erred by awarding the engagement ring to the husband in the divorce judgment, and she raises the same issue in this court. The trial court did not make a specific finding of fact in the divorce judgment regarding ownership of the engagement ring. However, by apparently awarding possession of the engagement ring to the husband in pretrial proceedings and by not awarding the wife the value of the engagement ring in the divorce judgment, the trial court implicitly held in the divorce judgment that the engagement ring was the husband's property. Cf. Hocutt v. Hocutt, 491 So.2d 247, 249 (Ala. Civ. App. 1986) ("In essence, when the trial judge does not alter ownership that, in and of itself, disposes of the issue, and the title to the property is left undisturbed by the judgment."). After the wife filed her appeal, this court in Hattaway v. Coulter, [Ms. 2200502, Dec. 17, 2021] So.3d (Ala. Civ. App. 2021), held that as a matter of law, an engagement ring, as a matter of law, is a gift conditioned upon the fulfillment of marriage. Hattaway "addressed whether an unjust-enrichment action is a proper means for a donor to seek to recover an engagement ring or its value." So.3d at . This court held "that, when an engagement is terminated, the donor has the right to request the return of the engagement ring and that, when such a request is refused, an unjust-enrichment cause of action exists." So.3d at . In reaching our holding in Hattaway, this court considered Judge Crawley's dissenting opinion in Phillips v. Phillips, 705 So.2d 512, 513-14 (Ala. Civ. App. 1997), discussing whether a wedding ring may be considered an inter vivos gift and, consequently, the wife's personal property. Judge Crawley opined:
"Under Alabama law, to establish that the ring was a gift, the wife has the burden of proving by clear and convincing evidence that the husband intended the ring to be an inter vivos gift to her. Ford v. Stinson, 679 So.2d 1104, 1105 (Ala. Civ. App. 1996). To satisfy her burden, she would have to prove (1) donative intent on the part of her husband, (2) an effective delivery of the ring to her, and (3) her acceptance of the ring. Ford, 679 So.2d at 1105. ...
"The wife testified that she and her future husband had gone to a jeweler in search of a ring because '[h]e said he wanted to give me a ring.' The wife further testified that they selected a stone at the jewelry store and that the store mounted the stone in a setting she selected. The wife also testified that when the ring was ready she went to pick it up because the husband was back at work in Illinois. According to the wife's testimony, the husband proposed to her again when she called him to let him know she had picked up the ring and said to her that 'he just wished he could be there to put it on my hand.'
"The husband testified that he purchased the $4,700 ring for his wife because 'I was willing to get her what she wanted if she was going to be my wife.' ...
"The evidence clearly demonstrates that the husband intended to make a gift of the ring to the wife, that the ring was delivered to her, and that she accepted the ring. ... [A] completed gift is irrevocable. Patterson v. Leonard, 240 Ala. 652, 200 So. 759 (1941); see also Lipton [v. Lipton], 134 Misc.2d [1076, ] 1077, 514 N.Y.S.2d [158, ] 159-60 [(Sup. Ct. 1986)]. Because the ring is property acquired by gift, and because the husband did not (and arguably cannot) contend that the ring was used for the benefit of the parties during the marriage, the ring is not marital property, see § 30-2-51, [Ala. Code 1975] …."Phillips v. Phillips, 705 So.2d at 514.
Although neither this court nor our supreme court has directly addressed whether an engagement ring is considered to be the wife's personal property or is considered to be marital personal property subject to division, based on our holding in Hattaway, supra, we determined that the evidence in the record clearly establishes that the engagement ring is the wife's personal property and that the trial court exceeded its discretion by awarding the engagement ring to the husband. The wife's deposition testimony and her testimony at trial establish that the husband gave the engagement ring to the wife as a gift in contemplation of marriage and that the wife fulfilled her obligation for the conditional gift by marrying the husband. The husband did not dispute this evidence. The record further reflects that it was undisputed that the engagement ring was an heirloom of the husband's family and that the husband wanted the engagement ring returned. Thus, the evidence clearly establishes that the husband intended to make a gift of the ring to the wife on the condition that she marry him, that the engagement ring was delivered to her, that she accepted the engagement ring, and that she, subsequently, married the husband. The husband's gift to the wife of the engagement ring is a completed gift and, consequently, is irrevocable. See Patterson v. Leonard, 240 Ala. 652, 200 So. 759 (1941). Because the engagement ring is the wife's property acquired by a completed gift, the trial court exceeded its discretion by not awarding the wife the engagement ring or, in the alternative in light of her testimony, its value. Therefore, based on our determinations in this opinion that the record clearly establishes that the engagement ring is the wife's personal property and that the trial court exceeded its discretion by awarding the engagement ring to the husband, we reverse in part the trial court's order denying the wife's postjudgment motion and remand this cause for the trial court to conduct a hearing, see House, supra, and to enter a judgment awarding the wife the engagement ring or the value thereof.
Lastly, the wife and the husband each request an award of attorney fees on appeal. "The award of attorney fees on appeal is within the authority and discretion of this court. See Ex parte Bland, 796 So.2d [340, ] 345 [(Ala. 2000)] (citing Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974))." K.D.H. v. T.L.H., 3 So.3d 894, 902 (Ala. Civ. App. 2008). Each party's attorney submitted an affidavit attesting that he or she had incurred fees and expenses in connection with the appellate litigation. In light of our review of the record, the circumstances presented in this case, and our resolution of the issues presented on appeal, we decline to award any attorney fee to either party on appeal.
In summary, we affirm the divorce judgment insofar as it awarded joint physical custody of the child to the parties and divided the parties' marital property. We reverse in part the trial court's May 3, 2021, order denying the wife's postjudgment motion and remand the cause for the trial court to conduct a hearing and to enter a judgment awarding the wife the engagement ring or the value thereof.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Moore, Edwards, Hanson, and Fridy, JJ., concur.