Cynthia Lynn Lowery v. Lilton Cary Lowery
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REL: 5/13/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter o f Decisions, A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2090849 C y n t h i a Lynn Lowery v. L i l t o n Cary Lowery Appeal from M a r s h a l l C i r c u i t Court (DR-09-537) PITTMAN, Judge. Cynthia divorcing among ("the w i f e " ) her from L i l t o n other physical Lynn Lowery things, custody Cary Lowery awarded of their appeals ("the husband") the parties children, from a judgment joint divided that, l e g a l and the parties' 2090849 marital property, alimony o r an a t t o r n e y f e e . The trial were parties in April were 14, a n d separated i n June filed custody alleged d i d n o t award married 15 years 2009, a divorce that type of 1 9 9 2 ; by the time of two s o n s and d u r i n g child she had been any a seeking, support, "stay among until she asserted, a divorce judgment entered a pendente l i t e children until trial, negative behavior The the husband wife's she needed other things, The w i f e mother and t h e the marriage support The t r i a l ordered the parties an a n s w e r allegations, but the husband court to continue he to refrain i n which he a d m i t t e d disagreed the c h i l d r e n ; i n s t e a d , the husband 2 from remarks around the c h i l d r e n . with the r e q u e s t t h a t s h e be a w a r d e d p r i m a r y p h y s i c a l a n d l e g a l of and, to maintain the p a r t i e s ' status and d e r o g a t o r y filed lite and o r d e r t h a t awarded p h y s i c a l custody o f payments and pendente c o u l d be e n t e r e d . to the wife, instructed making a l l necessary quo month t h e and alimony. a t home" parties t h e husband had been t h e f a m i l y ' s s o l e b r e a d w i n n e r , therefore, the daughter The the following primary c a r e g i v e r f o rthe c h i l d r e n throughout that a n d one old, respectively. complaint of the c h i l d r e n , the wife i n May 2010, the p a r t i e s ' 17, wife and specifically most o f wife's custody requested 2090849 that the t r i a l the court children to the p a r t i e s . parties was support, entered court 2010, at which heard The mother from that husband worked. many years reserved She n o t e d t h a t evidentiary exhibits a "stay a t home" t o and from their school medical the household while t h e husband had been who 29, of the p a r t i e s ' c h i l d r e n , scheduling and h a n d l i n g on A p r i l The and t h e w i f e . the children activities, for trial. proceeding she had been by h i s f a m i l y , sales business, child-custody, received caregiver f o r taking appointments, divorcing the the husband and t h e p r i m a r y dental order 2010; a l l 6, were court testified extracurricular An i n i t i a l an o r e t e n u s the t r i a l testimony responsible for issues conducted wife l e g a l and p h y s i c a l c u s t o d y o f on J a n u a r y and p r o p e r t y trial and award j o i n t owned a local and and the employed automobile- b u t t h a t i n 2 0 0 3 o r 2004 t h e h u s b a n d h a d b e g u n working as a r e a l - e s t a t e The wife also t e s t i f i e d had purchased several parcels she stated that agent for a local that, during she wanted realty company. t h e marriage, the husband of property a portion as i n v e s t m e n t s , of the equity and i n those parcels. The the wife pendente noted that lite order the husband i n that 3 he had f a i l e d had to abide allowed both by the 2090849 marital residence separation) the foreclosure mortgage-loan wife's he had been and t h e B e r k s h i r e c h i l d r e n had been into the (where payments; he had payments f o r that n o t made he vehicle. the husband had provided vehicle, that the had t o go applicable allowed the vehicle had a l s o been repossessed t o make t h e p a y m e n t s vehicle. noted The w i f e a 1999 model that although authorities foreclosure, the home d u r i n g and d i d not, therefore, support the marriage an e x t e n s i o n The w i f e that so t h a t she would The w i f e testified with the lending she had n o t worked except have with had given she had a t t e m p t e d t o n e g o t i a t e to avoid motor father automobile the divorce. that because the associated t h e husband's Dodge S t r a t u s t r a n s p o r t a t i o n pending She t e s t i f i e d her with a replacement husband had f a i l e d that, and m o t o r v e h i c l e t o b e r e p o s s e s s e d b e c a u s e h e h a d n o t made car-loan have the the separation) additionally, although her during (where t h e w i f e residence residing during because residing briefly on two outside occasions a credit history sufficient to of c r e d i t . also stated that time, minimum-wage Human R e s o u r c e s as a case she had been a b l e employment "Child-Support-Obligation with aide. Income 4 the local The w i f e to find part- Department offered of a CS-41 Statement/Affidavit" form 2090849 indicating year. that She apartment income to be testified or been a he She occasions daily regularly stated or $8,844 been unable to with her and per rent an limited support from the husband i n order to provide a separated his he i n with heavy Although that friend's house residence. the she basis parties' two testified that had stated had sons influence the husband after been least on two that live She eviction twice separate parties had and had been been able rent a t o move the room the the she allowed husband. she and t h e d a u g h t e r l i v e d 5 had and s l e p t wife in a Berkshire b e c a u s e t h e room she r e n t e d with once the from space, a bills had to noted testified the f o r e c l o s u r e s , forced her she of alcohol, until the f a m i l y ' s limited floor to arrested drinking, following She at the p a r t i e s ' separation. h i s parents testified intoxicated had been he h a d a l w a y s p a i d father. the marriage, the husband of a l c o h o l i c beverages; f o r d r i v i n g under despite monthly $737, vehicle motor become that that, back had that, during drinker and once d u r i n g good was her monthly o b l i g a t i o n s before a she she needed testified had week. income f o r the c h i l d r e n . The w i f e that that purchase a t o meet residence had to and t h a t able her monthly The on a the wife together 2090849 in t h e room she r e n t e d b u t t h a t she h a d b e e n t r y i n g apartment again. the to so a l l t h e c h i l d r e n c o u l d The w i f e asked the t r i a l c h i l d r e n and t o o r d e r allow she the her the opportunity husband t e s t i f i e d mortgage secured by court together t o award her custody live during testified as where he the had not only the m a r i t a l allowed h a d he residence, the wife separation. to both the m a r i t a l residence properties, parents' but he then permission to admitted Properties, L L C ("TTown"), w h i c h The year. Albertville; he owned each, but they he live also husband residence, of his interest those also had been brought parents' have his at that rent-free an had an i n v e s t m e n t d i d not o w n e d two At the time o f t r i a l , s a l e a t $65,000 preceding that l e t them that he on the c h i l d r e n to a n d t h e c h i l d r e n one He in Tuscaloosa. noted defaulted and t h e B e r k s h i r e location. for and that, after f o r e c l o s u r e proceedings he h a d o f f e r e d t h e w i f e where live. that parties' of alimony to e s t a b l i s h a residence s u f f e r e d f o r e c l o s u r e on t h e B e r k s h i r e r e s i d e n c e , property an as a f a m i l y the husband t o pay p e r i o d i c and t h e c h i l d r e n c o u l d The live to f i n d in TTown condominium units u n i t s were listed had remained u n s o l d f o r the I n a d d i t i o n , TTown o w n e d two r e n t a l h o u s e s i n those properties had 6 been listed for sale at 2090849 $249,900, but j u s t before houses. The those husband properties, been insured that he h a d investment trial insisted but he he the for a total companies, had foreclosure during 2007, owned was those The by 2008, so. these that he that income his properties husband had testified real-estateand M o u n t a i n testified i n t e r e s t s because companies were already in relinquished his interests. that taxes The t o pay in LLC, f o r those t h e p a r t i e s owed a t that had not been husband a l s o f o r bankruptcy protection Despite equity i n v e s t m e n t m e m b e r s ; he and 2 0 0 9 . t h e money n e e d e d no both other Properties, payment in federal planned to f i l e he be a w a r d e d j o i n t that a s s o o n a s he the l e g a l fees financial stated paid could associated problems, the l e g a l and p h y s i c a l he with husband custody the c h i l d r e n . The ore that the husband t e s t i f i e d $71,000 of no at the time least requested there of $200,000. Willow received Moreover, doing had d e s t r o y e d c o n v e y e d h i s i n t e r e s t s i n two properties save that admitted Group, LLC, back to the other that a tornado trial tenus awarded children, court entered proceeding. joint with legal the In and parties a judgment that judgment, physical rotating 7 t h e same d a y the custody as parties of "physical the custody the were three and 2090849 visitation of expressly shared the noted custody c h i l d r e n on that of because w o u l d be to obtain c h i l d r e n ; he medical was remaining 1/3 p a r t y the ordered with the moreover, those t o be outstanding i t did and support h u s b a n d was ordered coverage of be responsible in contain a gross or the each for addition, The pay awarded for paying debt. the the judgment periodic reservation the solely possession responsible In to titled i n that party's for a l l uncovered judgment real property to alimony not child instructed The properties. solely any no f o r 2/3 was expenses. federal-income-tax wife awarded of the in and a l l debt husband parties' did not alimony; power to alimony. The in those wife title-holder ordered award the judgment been time, The to pay name o r p r e s e n t l y the associated award of equal The had medical-insurance ordered and parties required. specific personal that party's was also expenses the approximately from e i t h e r p a r t y "immediately" a weekly b a s i s . " wife appeals i t s child-custody e i t h e r alimony i n gross award her parties an stand attorney on an and asserts award, in that the trial d e c l i n i n g to award o r p e r i o d i c a l i m o n y , and fee. In original equal footing 8 no erred the wife in failing to actions, the presumption of divorce with court 2090849 entitlement to custody i n u r i n g Couch, So. 521 S m i t h , 727 concern 987 , So. 2 d 1 1 3 , i n making incident to children. J.S.D., end, 2d 114 an So. trial 2d ( A l a . C i v . App. 521 620, court i s the So. 621 2d at wide abuse 697 4, of n o t be discretion. ( A l a . C i v . App. 5 2008); ( A l a . C i v . App. The position ore tenus w i t n e s s e s and See Ex p a r t e Fann, Kent, 701 cases especially, is great of So. 2d child see v. also custody of the also C.B.B. 2002). To in v. that awarding a showing Kovakas, Kent 12 of a So. v. G r e e n , clear 3d 701 693, So. 2d 1996). rule of the t r i a l and Kovakas primary i t s d e t e r m i n a t i o n of r e v e r s e d absent See see v. The discretion and Smith interests ( A l a . C i v . App. i s given Ex p a r t e also 1998). best 98 9; c u s t o d y and e s t a b l i s h i n g v i s i t a t i o n , such matters w i l l see d e t e r m i n a t i o n of action Couch, p a r e n t . See ( A l a . 1 98 8 ) ; initial divorce See 831 the a 989 to e i t h e r court to based, So. 5. their 2d 1981)). Factors t o be 633 402 Fann, So. 2d on the unique observe the parties o f an 810 "'[i]n 2d 1032 c o n s i d e r e d i n making 9 credibility. child attentive So. 1029, and ( A l a . 2001); Additionally, importance.'" v. W i l l i a m s , part, demeanor 631, the p e r c e p t i o n Williams in to p e r s o n a l l y assess 810 at is at see custody trial 633 judge (quoting (Ala. Civ. a also App. child-custody 2090849 award include emotional, the age and sex of character, their stability, respective custody children; this (Ala. parents needs; and including marriage, incident abusing alcohol arrest. primary He health, and See Ex p a r t e Devine, 398 sought a to the p a r t i e s ' that intended to more are within the Bryowsky, he last favorable divorce. child- The knew trial had court of had been t h e their teenagers youth, their activities based on "Appellate custody reweigh the 10 (Ala. but and t h a t courts evidence on and court. do n o t s i t hearing." 1996). he conflicting e v i d e n c e t h a t was p r e s e n t e d in a during stopped t h e sound d i s c r e t i o n of t h e t r i a l 676 S o . 2 d 1 3 2 2 , 1324 to he the wife during determinations 831 S o . 2 d a t 6 2 2 . permitted that supportive that wife driving-while-intoxicated f o r the c h i l d r e n judgment o f d i s p u t e d before not that Factual C.B.B., his stated t h e c h i l d r e n h a d become be interests. in after caregiver evidence the husband stated asserted See but their and p h y s i c a l t e s t i f i e d t h a t the husband had r e g u l a r l y abused a l c o h o l the their 1981). both case, award mental custody, home e n v i r o n m e n t s . 2d 686, 696-97 In the s o c i a l , m o r a l , m a t e r i a l , and e d u c a t i o n a l c h a r a c t e r i s t i c s of those seeking age, So. the This ore tenus Ex parte court i s appeal or to 2090849 substitute parte i t s judgment Patronas, testimony the of the cannot the managed 475 the to joint legal in this wife next court and lite, not trial court. had such that p h y s i c a l custody parents impacted record to in the of reversal children to case. asserts that the trial court erred i t s f a i l u r e t o a w a r d any alimony is well her. Alabama law d i v i s i o n i s s u e s are w i t h i n the t r i a l and of a j u d g m e n t must be that appeal. plainly d i s c r e t i o n before See (Ala. Civ. trial court McClelland App. 2002). should the v. of When consider the and palpably judgment and type of property- beyond the can 841 be So. disturbed 2d factors, scope 1264, on 1271 property, including a the h e a l t h of the p a r t i e s ; the p a r t i e s ; the 11 that dividing marital several age settled in its court's broad d i s c r e t i o n , McClelland, l e n g t h of the m a r r i a g e ; the future prospects by evidence, m a r i t a l - p r o p e r t y d i v i s i o n and to that shared- both erred Ex the evidence been a d v e r s e l y court See Besides establish a B a s e d upon the the and trial (Ala. 1997). develop action. that the trial pendente divorce of 473, parents, conclude parents The 2d that t h a t the c h i l d r e n had pending awarding had So. arrangement testified we the parties custody 693 for source, type, and value 2090849 of the p r o p e r t y ; the standard of living to which have become a c c u s t o m e d d u r i n g t h e m a r r i a g e ; the parties G o l d e n v. c o n t r i b u t i n g to the Golden, 681 So. 2d 605, So. see a l s o Ex p a r t e E l l i o t t , 782 and Morrison 540 1989) was v. Morrison, (affirming awarded "A alimony division a l l the court has need particular only facts 311; see App. 2004). its also the the the Hall v. in whether entire fault marriage. 311-12 80, 81 of See 1996); (Ala. 2000), (Ala. Civ. under which one App. spouse property). standard equitable Hall, to follow to marriage; 8 95 after the So. the award in awarding supported 2d 299, 303 O'Neal v. So. the 2d at (Ala. Civ. court acted w i t h i n parties' alimony, 782 by or an property appellate O'Neal, 678 or court So. 2d 1996). the p a r t i e s ' been be whether the t r i a l j u d g m e n t . See husband had and Ex p a r t e E l l i o t t , dividing ( A l a . C i v . App. Regarding that be In examining determining 164 fixed of the case." discretion 161, 2d the the ( A l a . C i v . App. 2d 3 0 8 , So. real of and parties or i n d i v i d i n g m a r i t a l p r o p e r t y [ ; r ] a t h e r the award division reviews 608 of p r o p e r t y marital no breakup the f i n a n c e s , the the primary parties 12 had testimony breadwinner married, the was clear throughout wife had 2090849 stayed for home t o r e a r t h e c h i l d r e n and t h e husband h i s family business and i n v e s t e d becoming l i c e n s e d as a r e a l t o r , for a local ongoing financial 2009. the 2010 bank indicate $3,118.50 first + that children break. allowed to the Gulf had earned $8,562.99 from the realty her nonpayment, two motor vehicles The w i f e , n o t h a v i n g credit history company ($3,300.94 during + the t h a t , t h e month days during spring to be repossessed for on t h e i r e l d e s t s o n ' s insurance. w o r k e d f o r a number o f y e a r s , and has been of t h e same t i m e t h e h u s b a n d h e h a d made a l l t h e p a y m e n t s motor v e h i c l e and automobile W-2 t o a f f o r d t o take the f o r several She a l s o n o t e d t h a t , d u r i n g a Form two months company The w i f e t e s t i f i e d coast concerning l a c k o f income, the f i r s t t h e husband had been able After working from the r e a l t y from he $2,143.55) trial, submitted h i sprofessed statements 60 d a y s o f t h e y e a r . before $70,000 In addition, despite husband's testimony problems, t h e husband t h a t he h a d e a r n e d estate. t h e husband had begun r e a l - e s t a t e company; d e s p i t e indicating in i n real had worked unable to afford h a s no t o rent an apartment o r t o pay f o r a motor v e h i c l e d u r i n g t h e pendency o f the divorce action. Even i fthe t r i a l 13 court could properly 2090849 conclude t h a t the c o n f l i c t i n g evidence r e g a r d i n g the husband's investment properties left no equity to divide between the p a r t i e s as a l i m o n y i n g r o s s , t h e w i f e ' s m o n t h l y income o f $737 is the husband's substantially The wide less disparity than between the monthly husband's earnings. monthly income (ranging a t a minimum between $3,000 the wife l e a d s us t o t h e i n e v i t a b l e c o n c l u s i o n t h a t t h e court erred periodic when i t failed alimony. t o award t h e r e f o r e must r e v e r s e award the wife discussion We the we simply trial are the note that the parties, of the l i t i g a t i o n , and services performed by 174, 17 6 the and, where experience 14 t o be 1 996) we to pretermit considered the Glover the value v. (quoting by financial conduct, appropriate, to and award t o the w i f e . parties' the attorney.'" ( A l a . C i v . App. we include the as wife for failure support, certain "'[f]actors the of issue. judgment c o u r t when a w a r d i n g s u c h f e e s of that of trial some a m o u n t of support, on t h a t some a m o u n t o f s p o u s a l knowledge 2d the judgment reversing court's So. some t y p e o f t h e l a c k o f an a t t o r n e y - f e e circumstances results the wife I t i s c l e a r from the r e c o r d cannot p r e s e n t l y s u r v i v e without Because and $4,400) and t h a t the trial of the Glover, 678 Figures v. 2090849 Figures, 624 Considering minimal So. the 2d 188, 191 of the outcome income, (Ala. Civ. litigation an attorney-fee court's judgment award App. and on 1993)). the remand wife's may be appropriate. The the trial child-custody award and award p e r i o d i c alimony awarded $2,000 as an a t t o r n e y i s due reversed or support t o be as to P.J., and f e e on Bryan, concur. 15 the to the wife. as to failure to The wife i s appeal. A F F I R M E D I N PART; R E V E R S E D I N PART; AND Thompson, affirmed Thomas, REMANDED. and Moore, JJ.,
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