REL:
07/22/2011
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2011
_________________________
2100124
_________________________
Crysten Ann Martin
v.
Gary Everett Martin
Appeal from Lee Circuit Court
(DR-09-167)
THOMAS, Judge.
Crysten Ann Martin ("the wife") appeals from a judgment
of the Lee Circuit Court ("the trial court") divorcing her
from Gary Everett Martin ("the husband").
2100124
Facts and Procedural History
The parties were married on March 28, 2002.
The parties
have one minor child –- a son who was born on May 11, 2004
("the child").
2009,
The husband filed for a divorce on May 1,
claiming
incompatibility
of
temperament
irretrievable breakdown of the marriage.
the
wife
answered
Additionally,
hearing
and
the
and
wife
relief,"
a
"motion
requesting
an
On June 12, 2009,
counterclaimed
filed
and
for
for
temporary
a
divorce.
pendente
custody
of
lite
the
child, child support, possession of the marital residence, and
that the husband be required to pay the parties' debts and
obligations pending a final hearing in the divorce action.
The trial court conducted a pendente lite hearing on
August 25, 2009.
During that hearing, the husband, the wife,
and Keela Lee Christopher, the wife's mother, testified.
The
wife testified that she had engaged in an extramarital affair
with a former coworker.
lasted
for
approximately
She testified that the affair had
six
to
eight
weeks.
The
wife
testified that she has a degree in marketing and that she
works in marketing at Hayley-Redd Development, L.L.C., as well
as conducting her own personal photography business.
2
Based on
2100124
the average combined income from her jobs, the wife testified
that she made about $3,500 per month.
She opined that it
would be best to set up two separate homes for the child,
instead of allowing both parties to remain in the marital
residence together, because of the arguments and "mood" in the
household.
The
wife
testified
that
the
"mood"
had
been
altered because the husband had become angry and unpredictable
since
filing
for
divorce.
Although
she
had
initially
requested possession of the marital residence, she testified
that she had arranged free housing for both her and the minor
child through her employer.
The wife also testified that she should receive custody
of
the
child
because
she
had
been
caregiver for the majority of his life.
the
child's
primary
Specifically, she had
stayed at home with the child during the first year of his
life; she was the only person to ever cut his fingernails or
toenails; she bought all the child's school clothes; and she
had
relationships
parents.
She
responsible
laundry,
with
further
for
keeping
cooking,
and
all
the
testified
the
child's
that
household
cleaning.
3
In
friends
she
in
was
and
the
order
contrast,
their
parent
by
doing
the
wife
2100124
explained, the husband had been responsible for the garage and
exterior of the home, which, she testified, he did not keep
clean and upon which he failed to perform normal required
maintenance.
Further, the wife testified that the husband was not a
bad father and that he had the child's best interest in mind.
However, she had concerns about his parenting ability because,
she said, the husband has attention deficit disorder ("ADD"),
for which he takes medication.
the
husband
typically
Additionally, she said that
consumes
two
beverages about five nights a week.
to
three
alcoholic
She testified that the
husband was routinely late, and she feared that the child's
routine and structure currently in place would be altered if
the husband was awarded custody.
Moreover, the wife testified
that the husband had been recording her conversations in both
the marital home and in her automobile.
testified
recordings,
that
he
which,
had
she
collected
said,
he
over
would
Specifically, she
4,000
listen
hours
to
of
with
headphones while caring for the child.
During the pendente lite hearing, the husband testified
that he works at Auburn University in the agronomy and soils
4
2100124
department and earns $2,976 per month.
per
month
coverage
for
for
health-insurance
the
child.
He
He also pays $363.47
coverage,
testified
which
that
includes
there
was
no
mortgage on the marital residence because it had been a gift
from his parents but that the marital debt consisted of a
home-equity line of credit and credit cards solely in his
name.
The husband testified that the home-equity line of
credit had been used to pay off the debt owed on the wife's
automobile,
to
finance
family
expenses during the marriage.
vacations,
and
for
normal
He said that the debt was in
his name alone because the wife had filed for bankruptcy in
2002.
He testified that the wife was employed during most of
the marriage, although, he said, she took a year off when the
child was born and had had short stints of unemployment after
being discharged by various employers.
He testified that he
knows how to wash dishes, to do laundry, and to clean house.
Further, the husband testified that he does take medication
for his ADD and that he drinks about two to three alcoholic
beverages per night.
5
2100124
Additionally,
the
husband
testified
that
involved in every aspect of the child's life.
he
had
been
He said that he
had taken care of the child without the assistance of the wife
on several occasions when she was out of town without any
problems.
Further, he testified that he had taken the child
on trips to visit his parents as well as the wife's parents.
The husband testified that he enjoys spending time with the
child
and
together.
that
they
engage
in
many
outdoor
activities
Moreover, he testified that the wife had attempted
to place the child on a schedule and that he had attempted to
continue
to
follow
the
schedule,
although,
he
parties had strayed from it from time to time.
said,
both
He testified
that the wife had expressed a desire to be with the child and
to continue caring for him but that he had some doubts as to
her parenting capabilities.
The husband requested that the trial court award him
custody of the child because he did not feel like the wife was
fulfilling her duties as a parent since the time she had
engaged in the affair.
financially
Specifically, he said, she had been
irresponsible
and
inattentive
to
the
child.
Additionally, he stated that he had spoken with his employer
6
2100124
and that he would be able to take the child to school and pick
him up afterwards should he be awarded custody of the child.
Mrs. Christopher, the wife's mother, testified that both
the wife and the husband were able and willing parents who had
the child's best interest in mind.
However, she opined that
the trial court should award custody to the husband because
the wife was "spinning some pretty big tales" and that she
"would
like
believed,
[the
wife]
to
get
some
help"
because,
she
the path the wife was on could affect the child.
On August 26, 2009, after considering the testimony and
the exhibits presented at the hearing, the trial court awarded
the
husband
sole
pendente
lite
custody
of
the
child
and
allowed the wife "reasonable and liberal visitation" with the
child.
Moreover, the husband was awarded exclusive control of
the marital residence pending the divorce trial, and the wife
was ordered to vacate the martial residence and to pay $786.00
per month in pendente lite child support.
On
June
4,
2010,
regarding the divorce.
the
trial
court
conducted
a
trial
The parties agreed to incorporate the
testimony from the pendente lite hearing into the record.
During the trial, the parties and several additional witnesses
7
2100124
testified.
Golden Jenkins, a licensed counselor, testified
that she had met the wife during a parenting class the parties
had been mandated to attend.
She opined that the wife had a
strong desire to be reunited with the child and that she did
not have any concerns about the wife's ability to serve as the
child's caretaker.
Jenkins said that she had met the husband
only briefly, but, she said, during that brief meeting, she
did not observe anything that gave her cause to doubt the
husband's
ability
to
care
for
the
child.
However,
she
testified that, based on information the wife had shared with
her about the husband, she did have some concerns about his
parenting abilities.
It was undisputed that the husband did
not complete the mandated parenting class during the pendency
of the divorce action.
Janet Johnson, the principal of the child's school, also
testified at trial.
tardy
13
times
She testified that the child had been
since
pendente lite custody.
the
husband
had
been
awarded
sole
Johnson testified that the wife was
active at the child's school and had visited him numerous
times during the lunch hour.
Johnson further testified that
8
2100124
the
child
never
came
to
school
unprepared,
dirty,
or
malnourished.
Dr. Larry Estep, the husband's doctor, testified that he
had been treating the husband's ADD for the last three years.
He stated that the ADD was fully controlled by medication.
Further, he testified that moderate drinking, such as two to
three
alcoholic
beverages
per
night,
in
conjunction
with
taking the husband's prescribed dosage of medication, was not
harmful.
Additionally, Dr. Estep opined that he had not
observed any behavior in the last three years that would limit
the husband's ability to function as a good parent.
During the trial, three of the wife's former coworkers
testified.
Justin Smith testified that he had engaged in an
affair with the wife when she worked with him at Kinnucan
Enterprises, Inc.
He stated that the affair had lasted from
the middle of March until the end of May 2009 and that they
had rekindled their relationship sometime in the fall of 2009.
He also testified that the wife had given him monetary gifts
totaling approximately $1,000.
However, he stated that he had
repaid some, but not all, of that money.
Smith opined that
the husband had taken care of the child when the wife was
9
2100124
spending time with him throughout the affair.
Robert Charles
Lake testified that he had worked with the wife when she was
a
Kinnucan's
controller.
employee.
Lake
works
at
Kinnucan's
as
a
He testified that the wife did not always tell
the truth and that he could recall several times when her
version of events did not align with his recollection of the
same events.
he
had
Additionally, Travis Scott Denley testified that
worked
in
constant
Kinnucan's employed her.
contact
with
the
wife
while
Denley testified that the wife had
a strong work ethic but that she was extremely manipulative.
He further testified that she had lied about situations and
that she was flirtatious with several people at Kinnucan's.
The
former
co-workers
also
testified
that
the
wife's
employment at Kinnucan's had been terminated, but all three
refused to testify as to the reasons because of the wife's
claim filed with the Equal Employment Opportunity Commission
and
the
confidential
settlement
agreement
regarding
that
claim.
The husband and the wife also testified at the trial.
The husband opined that it was in the child's best interest to
award him sole physical custody.
10
He testified that the wife
2100124
focused more on herself and her own materialistic needs than
on the needs of the child.
lies and manipulates.
He also testified that the wife
Further, the husband testified that the
only assets the parties had were the marital residence, which
the husband's parents had given to the parties as a gift, the
wife's Ford 500 automobile, the husband's Chevrolet Tahoe
automobile,
and
various
items
of
personal
property.
The
husband testified that the parties had $47,500 of debt in the
form of a home-equity line of credit.
Further, he testified
that the only other marital debt was a credit card with a
balance
of
around
$3,000
or
$4,000.
He
opined
portion of the marital debt was only $12,000.
that
his
The husband
also testified that he had spent $17,000 on legal fees during
the pendency of the divorce action.
In
contrast,
the
wife
testified
awarded sole physical custody.
care for the child.
that
she
should
be
She expressed her desire to
Further, she admitted to writing checks
that were drawn on the home-equity line of credit, which was
in the husband's name.
However, she testified that the checks
were used for normal marital expenses and not her own benefit.
She also testified that the Ford 500 automobile she drives was
11
2100124
worth approximately $7,000.
that
the
marital
Additionally, the wife testified
residence
approximately $191,000.
had
an
assessed
value
of
The wife also testified that she had
sold her home and had contributed the sale proceeds of roughly
$20,000 to pay off marital debt and to furnish the marital
residence.
After considering all the testimony from the pendente
lite hearing and the trial, the trial court entered a judgment
divorcing the parties on June 25, 2010.
granted the parties
The judgment also
joint legal custody of the child and
awarded sole physical custody of the child to the husband.
Further, the wife was ordered to continue paying child support
in the amount of $786 per month.
The judgment also divided
the marital property as follows: the husband was awarded all
right,
title,
husband
was
and
interest
awarded
in
the
possession
of
marital
the
residence;
Chevrolet
the
Tahoe
automobile; the husband was ordered to assume all liability on
the home-equity line of credit and the credit card; the wife
was awarded possession of the Ford 500 automobile; the wife
was ordered to contribute $10,000 to the parties' marital
12
2100124
debts; and the wife was ordered to pay $10,000 toward the
husband's attorney fees.
On July 22, 2010, the wife filed a motion
amend, or vacate the trial court's judgment.
denied by operation of law.
to alter,
The motion was
The wife timely appealed to this
court.
Issues
The wife raises three issues on appeal: (1) whether the
trial
court
custody
of
exceeded
property;
erred
the
its
and
in
minor
awarding
child;
discretion
(3)
in
whether
the
(2)
its
the
husband
sole
whether
the
division
of
trial
court
physical
trial
the
court
marital
exceeded
discretion in the award of attorney fees.
Standards of Review
"Alabama law gives neither parent priority in an
initial custody determination. Ex parte Couch, 521
So.
2d
987
(Ala.
1988).
The
controlling
consideration in such a case is the best interest of
the child. Id. In any case in which the court makes
findings of fact based on evidence presented ore
tenus, an appellate court will presume that the
trial court's judgment based on those findings is
correct, and it will reverse that judgment only if
it is found to be plainly and palpably wrong. Ex
parte Perkins, 646 So. 2d 46 (Ala. 1994).
The
presumption of correctness accorded the trial
court's judgment entered after the court has heard
13
its
2100124
evidence presented ore tenus is especially strong in
a child-custody case. Id."
Ex parte Byars, 794 So. 2d 345, 347 (Ala. 2001).
"When the trial court fashions a property division
following the presentation of ore tenus evidence,
its judgment as to that evidence is presumed correct
on appeal and will not be reversed absent a showing
that the trial court exceeded its discretion or that
its decision is plainly and palpably wrong. Roberts
v. Roberts, 802 So. 2d 230, 235 (Ala. Civ. App.
2001); Parrish v. Parrish, 617 So. 2d 1036, 1038
(Ala. Civ. App. 1993); and Hall v. Mazzone, 486 So.
2d 408, 410 (Ala. 1986).
A property division is
required to be equitable, not equal, and a
determination of what is equitable rests within the
broad discretion of the trial court. Parrish, 617
So. 2d at 1038."
Stone v. Stone, 26 So. 3d 1232, 1236 (Ala. Civ. App. 2009).
"Whether to award an attorney fee in a domestic relations
action is a matter within the sound discretion of the trial
court and, absent an abuse of that discretion, a trial ruling
will not be reversed."
Thompson v. Thompson, 650 So. 2d 928,
931 (Ala. Civ. App. 1994).
Analysis
I. Custody Determination
The wife argues on appeal that the trial court erred by
awarding
the
husband
sole
physical
custody
of
the
child
because, she asserts, evidence admitted at trial established
14
2100124
that
the wife had been the child's primary caregiver and
awarding her sole physical custody would be in best interest
of the child.
"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." Stead v. Stead, 877 So. 2d
602, 604 (Ala. Civ. App. 2003) (citing Nye v. Nye, 785 So. 2d
1147 (Ala. Civ. App. 2000)).
"In Ex parte Devine, 398 So. 2d 686, 696-97 (Ala. 1981),
the Alabama Supreme Court set forth a list of factors a
trial court may consider in making an initial award of
custody based on the best interest of the children,
including
"'[t]he sex and age of the children ...;
... the characteristics and needs of each
child, including their emotional, social,
moral, material and educational needs; the
respective home environments offered by the
parties; the characteristics of those
seeking custody, including age, character,
stability, mental and physical health; the
capacity and interest of each parent to
provide for the emotional, social, moral,
material and educational needs of the
children; the interpersonal relationship
between each child and each parent; the
interpersonal relationship between the
children; the effect on the child of
disrupting
or
continuing
an
existing
custodial status; the preference of each
child, if the child is of sufficient age
15
2100124
and maturity; the report and recommendation
of
any
expert
witnesses
or
other
independent
investigator;
available
alternatives; and any other relevant matter
the evidence may disclose.'"
Williams v. Williams, [Ms. 2090629, January 28, 2011]
3d
,
So.
(Ala. Civ. App. 2011).
The wife argues that, because evidence presented at trial
established
that
the
wife
had
been
the
child's
primary
caregiver, she should have been awarded sole physical custody
of the child.
the
parent
The wife also highlights the fact that she was
responsible
for
setting
up
the
child's
home
environment and keeping the home clean and safe for the child.
Further, testimony at trial established that the wife had been
the party responsible for placing the child on a routine,
which the husband still attempts to follow.
Additionally, it
was undisputed that the husband failed to attend the mandated
parenting class.
Although that evidence could have supported an award of
sole physical custody to the wife, the trial court heard other
evidence that supported a finding that the best interest of
the
child
would
be
served
by
physical custody of the child.
awarding
the
husband
sole
For example, the wife's mother
16
2100124
opined that the husband should be awarded custody because the
wife was "spinning some big tales" and, she believed, the
wife's behavior could eventually affect the child.
Further,
two of the wife's former coworkers testified that the wife was
known to lie and manipulate.
Additionally, the wife testified
that the husband was a good parent and that he had the child's
best interest in mind.
Accordingly, we conclude that the portion of the trial
court's judgment awarding the husband sole physical custody of
the child is supported by the evidence and
is
due to be
affirmed.
II. Property Division
The wife argues on appeal that the trial court exceeded
its discretion in its division of marital property.
More
specifically, she asserts, the trial court erred in awarding
the husband all right, title, and interest in the marital
residence.
We agree.
"The law is clear that matters such as alimony
and property division pursuant to divorce rest
soundly within the discretion of the trial court and
will not be disturbed on appeal except where such
discretion was palpably abused. Montgomery [v.
Montgomery, 519 So. 2d 525 (Ala. Civ. App. 1987)].
The issues concerning alimony and the division of
property are interrelated, and in determining
whether the trial court abused its discretion as to
17
2100124
either of those issues, the entire judgment must be
considered. Montgomery, supra.
Many factors,
including the conduct of the parties regarding the
cause of the divorce, are proper to consider in
making an equitable division. Lutz v. Lutz, 485 So.
2d 1174 (Ala. Civ. App. 1986).
The award is not
required to be equal, but must be equitable in light
of the evidence, and what is equitable rests within
the sound discretion of the trial court. Ross [v.
Ross, 447 So. 2d 812 (Ala. Civ. App. 1984)].
An
award that favors one party over the other is not in
and of itself an abuse of discretion. Jordan v.
Jordan, 547 So. 2d 574 (Ala. Civ. App. 1989)."
Boykin v. Boykin, 628 So. 2d 949, 952 (Ala. Civ. App. 1993).
Moreover, this court has stated that
"[t]he factors the trial court should consider in
dividing the marital property include 'the ages and
health of the parties, the length of their marriage,
their station in life and their future prospects,
their standard of living and each party's potential
for maintaining that standard after the divorce, the
value and the type of property they own, and the
source of their common property.' Covington v.
Covington, 675 So. 2d 436, 438 (Ala. Civ. App.
1996)."
Courtright v. Courtright, 757 So. 2d 453, 456 (Ala. Civ. App.
2000).
rear,
"Also, where there are minor children to sustain and
the
well-being
of
the
children
is
an
important
consideration." Mack v. Mack, 389 So. 2d 1156, 1159 (Ala. Civ.
App. 1980) (citing Ray v. Ray, 379 So. 2d 627 (Ala. Civ. App.
1980), and Bailey v. Bailey, 345 So. 2d 304 (Ala. Civ. App.
1977)).
Further, "[i]n examining whether the trial court's
18
2100124
property division amounts to an abuse of its discretion, the
proper
question
to
be
resolved
is
whether
the
property
division was equitable under the facts of the case." Sumerlin
v. Sumerlin, 964 So. 2d 47, 49 (Ala. Civ. App. 2007) (citing
Golden v. Golden, 681 So. 2d 605 (Ala. Civ. App. 1996)).
The wife argues that the trial court erred in awarding
the husband all right, title, and interest in the marital
residence because the marital residence was a gift to the
couple from the husband's parents.
The husband's parents
deeded the marital residence to the parties as joint tenants
with the right of survivorship. It was undisputed that the
husband's parents gave the parties the marital residence as a
gift, during the course of the marriage.
The trial court's judgment does not indicate its reasons
for awarding the husband all right, title, and interest in the
marital residence.
However, the husband's brief to this court
indicates that awarding any interest in the marital residence
to the wife would give her a "windfall" from a gift that was
intended
for
the
parties
to
use
only
as
a
marital
home.
Further, the husband's brief draws parallels to the supreme
court's decision in Ex parte Bland, 796 So. 2d 340 (Ala.
2000).
In
Ex
parte
Bland,
our
19
supreme
court
reversed
a
2100124
decision of this court, which had reversed a trial court's
property
funds
division, 1
inherited
by
because
the
this
husband
court
were
had
used
concluded
for
the
that
common
benefit of the parties and, therefore, that, pursuant to § 302-51(a),
Ala.
Code
1975,
those
funds
were
to
be
divided
between the parties. Bland v. Bland, 796 So. 2d 335 (Ala. Civ.
App. 1999).
Thus, Ex parte Bland focuses on inherited funds,
which were part of the husband's separate estate, that were
used for the common benefit of the parties and whether, under
the facts of that case, the trial court should have equally
divided those funds.
However, this case is unlike Ex parte
Bland because it does not involve any inherited property or
require application of § 30-2-51(a), Ala. Code 1975; instead,
this case involves a gift to the parties jointly during the
course of their marriage.
Therefore, the husband's emphasis
on Ex parte Bland is misplaced.
Essentially, in this case, the trial court divided the
marital debt and awarded the only substantial marital asset,
1
The trial court had ordered that the marital home be sold
and that the husband be awarded the first $76,000 of the
proceeds from the sale, with the remaining proceeds to be
split equally between the parties, because the husband had
contributed $76,000 of his inheritance to purchase the home.
Ex parte Bland, 796 So. 2d at 344.
20
2100124
the
marital
residence,
to
the
undisputed that the marital
parties.
husband,
although
it
was
residence was a gift to both
In light of the fact that this asset was a gift
given to the parties during the course of the marriage, we
agree with the wife that the trial court erred in awarding the
husband
all
right,
title,
and
interest
in
the
marital
residence. See Mayhann v. Mayhann, 820 So. 2d 836, 839 (Ala.
Civ. App. 2001) (reversing a property division because the
award of property was inequitable and left the wife nothing
but an automobile, a bedroom suite, and cookware and china);
Stewart v. Stewart, [Ms. 2090218, November 5, 2010]
,
So. 3d
(Ala. Civ. App. 2010) (reversing a property division
because the inequitable distribution of assets, in comparison
to
marital
debts,
left
the
wife
with
nothing
from
the
distribution); and Childree v. Childree, 831 So. 2d 635, 639
(Ala.
Civ.
App.
2002)
(holding
that
the
inequity
of
the
property division and alimony award required reversal).
The evidence concerning the value of the marital property
indicated that the marital residence had an assessed value of
$191,000 and, based on the wife's testimony, that the value of
the Ford 500 automobile was approximately $7,000.
There was
no testimony as to the value of the Chevrolet Tahoe or the
21
2100124
value
of
the
parties'
personal
property.
The
evidence
submitted at trial established that the marital debt totaled
approximately $51,000 and that the debt was in the form of a
home-equity line of credit with a balance of $47,500 and a
credit card with a $3,000 to $4,000 balance.
Therefore, the
marital home was the only substantial asset of the marriage.
The husband was awarded all right, title, and interest in the
marital residence worth approximately $191,000. Additionally,
the husband was ordered to assume roughly $40,000 in debt.
In
contrast, the wife was awarded an automobile worth $7,000 and
was required to take on $10,000 in debt.
This award of assets
cannot be considered equitable under the circumstances of this
case,
even
in
light
of
the
wife's
admitted
extramarital
affair.
We
conclude
that
we
must
reverse
the
trial
court's
property division because of the inequity of the award.
On
remand, the trial court is instructed to adjust the property
division as it considers appropriate in light of the fact that
the marital residence was a gift to both parties and, thus,
was marital property and not the sole property of the husband.
III. Attorney Fees
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Finally, the wife argues that, considering the relatively
equal
incomes
of
the
parties,
and
the
lack
of
testimony
regarding the husband's need for an award of an attorney fee,
the trial court erred in its attorney-fee award of $10,000 to
the husband.
It is without question that the trial court has
wide discretion in awarding attorney fees to parties in a
divorce proceeding. Hansen v. Hansen, 401 So. 2d 105, 107
(Ala. Civ App. 1981).
"Whether to award an attorney fee in a domestic
relations case is within the sound discretion of the
trial court and, absent an abuse of that discretion,
its ruling on that question will not be reversed.
Thompson v. Thompson, 650 So. 2d 928 (Ala. Civ. App.
1994). 'Factors to be considered by the trial court
when awarding such fees include the financial
circumstances of the parties, the parties' conduct,
the
results
of
the
litigation,
and,
where
appropriate,
the
trial
court's
knowledge
and
experience as to the value of the services performed
by the attorney.' Figures v. Figures, 624 So. 2d
188, 191 (Ala. Civ. App. 1993).
Additionally, a
trial court is presumed to have knowledge from which
it may set a reasonable attorney fee even when there
is no evidence as to the reasonableness of the
attorney fee. Taylor v. Taylor, 486 So. 2d 1294
(Ala. Civ. App. 1986)."
Glover v. Glover, 678 So. 2d 174, 176 (Ala. Civ. App. 1996).
We
pretermit
attorney-fee
award.
discussion
In
this
of
the
case,
husband's
the
results
$10,000
of
the
litigation are undetermined because this court has reversed
23
2100124
the
property
division
consideration.
and
remanded
the
case
for
further
Thus, the outcome of the litigation and the
financial obligations of the parties are dependent on the
trial court's actions on remand. Accordingly, we reverse the
attorney-fee
award
and
direct
the
trial
court
to
further
evaluate this issue.
Conclusion
Accordingly, we affirm the judgment of the trial court
insofar as it awarded the husband sole physical custody of the
child; we reverse the judgment of the trial court insofar as
it awarded the husband all right, title, and interest in the
marital residence, divided the parties' marital debts, and
awarded the husband $10,000 in attorney fees; and we remand
the cause to the trial court with instructions to reconsider
the property division and attorney-fee award.
The husband requests the award of an attorney fee on
appeal.
We deny the husband's request.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH
INSTRUCTIONS.
Thompson, P.J., and Pittman, and Moore, JJ., concur.
Bryan, J., concurs in part and concurs in the result,
with writing.
24
2100124
BRYAN, Judge, concurring in part and concurring in the result
in part.
I concur in the main opinion insofar as it affirms the
judgment of the trial court regarding custody of the child and
insofar
as
it
pretermits
discussion
attorney's fee to the husband.
of
the
award
of
an
I concur in the result of the
main opinion insofar as it reverses that part of the divorce
judgment regarding the division of marital property and debts.
The trial court is free to consider the conduct of the wife,
Crysten Ann Martin, in making a division of marital property
and debt that favors the husband, Gary Everett Martin. See
Brown v. Brown, 26 So. 3d 1210, 1221 (Ala. Civ. App. 2007)
(holding
that
the
trial
court
may
consider
the
husband's
admitted acts of adultery when making a property division and
affirming a division of marital property that awarded the
husband only 22.4% of the martial assets).
However, I agree
that the trial court's division of property and allocation of
debt
in
this
considering
particular
that
the
case
division
was
of
inequitable,
property
in
especially
the
divorce
judgment resulted in a negative property award to the wife.
25
