Antoinette Cahill Smith v. Shannon Cahill

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Rel: 5/06/2011 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 R e p o r t e r o f D e c i s i o n s , 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 2090469 Antoinette C a h i l l Smith v. Shannon C a h i l l Appeal from M a r s h a l l C i r c u i t (DR-05-161.01) PITTMAN, Judge. Antoinette a Court judgment Cahill that, Smith ("the f o r m e r among o t h e r enforce a claimed marital account h e l d b y Shannon C a h i l l things, interest wife") denied i n an ("the former appeals from her request t o investment-equity husband"). 2090469 The by a p a r t i e s w e r e m a r r i e d i n M a r c h 1986 judgment incorporated entered an on any chicken interest house additional property in plus both the husband had and had p a r t i c i p a t e d known work as the converted account account") with was 36,472 s h a r e s a i n which judgment custody and 6% to pay, interest equipment over for husband. former cooperative and and the years, an former wife's the marital and Beginning i n operated a poultry equity 5 the residence i n a Gold K i s t farm 1988, for Gold Kist c o o p e r a t i v e program, also program"; he continued 2004, G o l d Around association that Kist to a for-profit e v e n t u a l l y n o t i f y i n g the former husband t h a t the worth patronage equity $337,134.76 of Gold K i s t and stock. 2 of t h e former w i f e $10,000 farm the p a r t i e s ' divorce. from corporation, the former "patronage following in marital to the That o r d e r e d t o pay c h i l d s u p p o r t , has equipment" awarded former 1993. divorced were awarded t o the ordered t o pay she $20,000 interests the children t h e f o r m e r h u s b a n d was t h e f o r m e r h u s b a n d was "for 30, agreement of the p a r t i e s the p a r t i e s ' t h r e e minor wife, July and were program that he was ("the the equity entitled to 2090469 In 2005, seeking trial to the the lower former his following husband monthly year, filed a modification child-support the parties action obligation; reached an at agreement r e g a r d i n g c u s t o d y , s u p p o r t , and h e a l t h - i n s u r a n c e c o v e r a g e the children. modification parties on On June 8, judgment t h a t the issues of 2006, the trial court i n c o r p o r a t e d the child custody, for entered agreement of support, and a the health insurance. In to of January 2009, t h e f o r m e r w i f e f i l e d o b t a i n (1) p r e v i o u s l y u n p a i d c h i l d the equity account; she an a c t i o n s u p p o r t and asserted that, former husband had suppressed (2) a share throughout p a r t i e s ' d i v o r c e p r o c e e d i n g s and t h e m o d i f i c a t i o n the seeking the litigation, t h e e x i s t e n c e and value of t h e e q u i t y a c c o u n t and had c o n s i s t e n t l y u n d e r s t a t e d h i s income in order to Subsequently, filed a avoid the paying former appropriate husband c o u n t e r c l a i m i n which parties' sole hearing i n May former husband. remaining 2009, that Before minor he 3 answer; an support. he requested child. child's trial, filed child At custody a c u s t o d y was the former also of pendente the lite awarded t o husband filed the a 2090469 motion but f o r a summary j u d g m e n t a s t o t h e f o r m e r w i f e ' s t h a t m o t i o n was The trial denied. court c o n d u c t e d an o r e t e n u s p r o c e e d i n g p e n d i n g m a t t e r s over two d a y s : witnesses had O c t o b e r 22-23, 2009. were t h e p a r t i e s and t h e t h r e e reached t h e age o f m a j o r i t y bulk of the testimony that focused and, therefore, that expenses she than she should been m a r i t a l asset parties' youngest child, testified new husband u n t i l court divorce who was and t h a t entered The assets of the I n a d d i t i o n , she account had had not been divided i n Lastly, the p a r t i e s ' o l d a t the time of trial, around the former wife's rather live with the former graduation. a j u d g m e n t on p a r t i a l future child-custody, share of t h e second day of t r i a l , r a i s e d by the former w i f e . only the equity judgment. he w o u l d larger have. that 17 y e a r s high-school the conclusion a t o show t h a t t h a t h e was n o t c o m f o r t a b l e boyfriend At 1993 of t r i a l . about h i s income and had borne tending the The on t h e f o r m e r w i f e ' s a l l e g a t i o n s adduced evidence an e x i s t i n g on a l l c h i l d r e n , t w o o f whom by the time the former husband had l i e d children's claims, trial f i n d i n g s as t o t h e i s s u e s The p a r t i e s ' a g r e e m e n t c h i l d - s u p p o r t , and 4 the regarding postminority-support 2090469 issues was read into incorporated in open a final f o l l o w i n g day, t h e t r i a l correct a clerical support. On postjudgment hearing a postjudgment motion. appeal. extent to She that on regarding 20, 2009, January challenges i t precludes Alabama account. was 26, 2009. The an amended j u d g m e n t t o proper the motion payment former 2010, the trial and her from court's of wife the then child filed trial a court denied judgment to claiming marital rights t h e e q u i t y account and from p r o c e e d i n g equity agreement the The f o r m e r w i f e f i l e d a t i m e l y n o t i c e o f f o r m e r h u s b a n d on c l a i m s the court entered that that on O c t o b e r In motion. conducted and judgment error November court, to t r i a l of f r a u d and c o n v e r s i o n the as against the relating to 1 law i s w e l l s e t t l e d that, "'when a trial court does not make specific d i s p o s i t i o n o f an a s s e t i n a d i v o r c e [ j u d g m e n t ] , t h e p a r t i e s a r e l e f t i n t h e same p o s i t i o n r e l a t i v e t o t h a t a s s e t as t h e y were i n b e f o r e t h e d i v o r c e . ' Ex Because t h e former w i f e d i d not r a i s e t h e argument t h a t the former husband's f a i l u r e t o p r o p e r l y r e p o r t h i s income i n the previous support-modification action resulted in underpayment of a p p r o p r i a t e c h i l d support i n her b r i e f t o t h i s c o u r t , we c o n s i d e r t h a t i s s u e t o b e w a i v e d o n a p p e a l . See T u c k e r v. C u l l m a n - J e f f e r s o n C o u n t i e s G a s D i s t . , 864 S o . 2 d 317, 319 ( A l a . 2 0 0 3 ) . 1 5 2090469 parte Davis, 495 So. 2d 672, 673 ( A l a . 1986); M c G u i r e v . H o r t o n , 586 So. 2 d 9, 9 ( A l a . C i v . A p p . 1 9 9 1 ) ; L a c y v . L a c y , 403 S o . 2 d 2 5 1 , 254 ( A l a . C i v . A p p . 1 9 8 1 ) ; a n d M i l l e r v . M i l l e r , 391 S o . 2 d 1 1 9 , 120 ( A l a . C i v . App. 1 9 8 0 ) . The f a i l u r e t o d i v i d e each item of property does not render void an o t h e r w i s e p r o p e r d i v o r c e j u d g m e n t . M i l l e r , 391 S o . 2d a t 120." Brown v. Brown, 26 So. 3d 1210, 1219 n.2 (Ala. Civ. App. 2 0 0 7 ) ; s e e a l s o S m i t h v . S m i t h , 892 So. 2d 384, 389 (Ala. Civ. App. 2003), 491 So. 247, 249 Civ. App. the Hocutt, between the p a r t i e s i s not entry of the Bromley 1984)); 395-96 v. errors, after judgment. v. see former attempting 449 a l s o Clements subject the So. v. 2d of the p a r t i e s ' divorce is by concealed assets account is a res equitable judicata, from 2d 1254 from at 10 (Ala. Civ. 990 that asserts provisions of 1252, days So. 586 30 So. former 2d 383, 2007). husband the of Clements, modify doctrine (Ala. to modification, lapse McGuire, improperly barred to See Bromley, ( A l a . C i v . App. The 2d However, a d i v o r c e judgment d i v i d i n g m a r i t a l for clerical (citing App. Hocutt 1986). property except and the retirement the former account 6 of the not that her laches former wife, and wife is property-settlement judgment, defense that the and and by husband that subject the to action the never equity division 2090469 pursuant to § former wife reopen but the insists of that she Code 1975. has the equity that had the parties' points out that the m a r i t a l a s s e t , and she that same a s i s the Davis, 495 trial, So. the claims 2d at former throughout proceedings; the the with and 36,472 s h a r e s of G o l d K i s t s t o c k , the court d i d not to the the value former wife adduced p r i c e of Gold K i s t stock and had at the evidence i n May So. that 2d the that See Ex at 9. indicating in equity divorce 2004 r e s u l t e d i n an award t h e p r o c e e d s o f w h i c h he i n March 2005. t i m e t h a t he his of had Although former husband to t e s t i f y as liquidated i t , indicating that 2 0 0 5 was 7 to of the during She interest in 586 value admitted account a l l o w the of t h a t s t o c k as evidence the account marriage. McGuire, concealed martial equity silent to judgment 1988-1993). the adduced Gold K i s t i n t o a brokerage was during husband deposited the the attempted t h a t , t h e r e f o r e , her marriage former working judgment wife account trial part, divorce from 673, former husband had of the in i t was that the years of (i.e., divorce At her improperly accrued marriage asset For i s instead asserting a right to a claimed during parte not p r o p e r t y - d i v i s i o n aspects t h a t she share 30-2-51(b), A l a . $21.81 per the market share, for 2090469 a t o t a l p o t e n t i a l value former 1988 husband's and 1993, equity of She earnings publicly and asserts of res her from a i n value of the nationwide during 06. rebuttal, to the time fiscal 2004, the of of the 1990-91 to a Kist's farmers to account a had $337,134.76. equity her account during should previous have the laches from b r i n g i n g t h i s asset the years Gold equity of itemized According 2 cooperative in value that f o r the the between ($61,511.69); e q u i t a b l e defense of the latest, at a former husband contends t h a t the j u d i c a t a bar to provided that, report ($39,734.02). corporation that the claim In 1992-93 statement notice financial 1989-90 Although the had a show accrued had from Gold K i s t traded increased account former wife used to received ($30,383.06); conversion documents equity offered The ($66,200.44); 1988-89 financial accounting the $197,829.21. of $758,951. and former marriage, the former wife testified because asserted, modification proceeding that he doctrine a c t i o n now been wife at in the the 2005¬ former We cannot determine from the testimony and t h e other a d m i t t e d documents r e g a r d i n g the e q u i t y account whether the f i s c a l y e a r 1 9 9 1 - 9 2 was i n a d v e r t e n t l y omitted, whether no e a r n i n g s o c c u r r e d i n t h a t year, or whether the p a r t i e s were separated during that year. 2 8 2090469 husband had he had i n c l u d e d the prepared f o r the moreover, his not she parties' n o t e d t h a t he had original failed divorce She offered h u s b a n d ' s S e p t e m b e r 27, that asset," the modification but that equity During asserted that on he remaining assets composter, been $84,000 and 72 and insured the [was] copy modification of the in which include the 36,472 s h a r e s he litigation, requests listed brokerage of former "every account, Gold K i s t the stock. former husband Income f o r m t h a t h i s m o n t h l y i n c o m e was $2,582; of at that proceeding "two homes, land, chicken had ... owed a K a b o t a RTV, chicken a disclose "Child-Support-Obligation were: acres that " [ a ] n RTV, in the [respectively]. $140,000 cake or testified destroyed $84,000 d i d not CS-41 Statement/Affidavit" exhibit or the list proceeding; 2005, r e s p o n s e s t o d i s c o v e r y modification his moreover, an litigation list account, as asset to accurately finances during the d i v o r c e proceeding proceeding. in e q u i t y account i n the been ... for on four a new those for [a houses [having 9 a] houses, of which $7 0 , 00 0 a had and for for c]omposter assets." a Toyota pick-up [two total [constructed] house $115,000, his chicken houses rebuilt] that He truck, fair ... also listed a tiller market and value for of 2090469 $300, and a sprayer interrogatory husband the answered account, [into in for a request you In modification savings account, which $115." have] to litigation, disclose "each with a totaling only husband of discovery admitted t h r e e bank former every bank maintained since i n the that he accounts an the day or of $5,500. During list into to the and or c h e c k i n g account, d e p o s i t e d funds divorce" response having deposits instant the opened had litigation, a brokerage account M a r c h 22, 2005, a n d t h a t he h a d f u n d e d t h a t a c c o u n t w i t h from the equity Gold Kist former account stock. brokerage-account action, that asserted, former account, husband modification of adduced also 29, had action 2005, systematically marital such that the the sale funds of according the to a during discovery i n this documentation d i s c o v e r e d the t r u t h because See July of c o n t a i n e d $754,751.23. substantial refused to f u l l y the proceeds statement produced account and a As and on The former wife that the indicating, concealed asset, during former the the wife could the former husband had equity previous not have failed or c o m p l y w i t h R u l e 2 6 ( e ) ( 2 ) ( A ) , A l a . R. C i v . P. B a r g a n i e r v. B a r g a n i e r , 669 10 So. 2d 933, 937 (Ala. 2090469 Civ. App. 1995), Civ. App. doctrine t h e same i s s u e s identical 778-79 was 1190, 1199 Corp., judgment or could have ( A l a . 1978); undisputed account from interests elements i s an a b s o l u t e of action, litigated see a l s o Ex p a r t e ( A l a . 2000). the existence her and t h e court to the effect opportunity N e a l v. N e a l , " I f these been that to litigate i n the equity Because account, are i n c l u d i n g any i n the former value Dev. wife husband of the i n the previous the former wife prior 364 S o . Capstone The and 856 b a r t o any she had n o t had a f u l l the issue o f (1) on t h e m e r i t s evidence r e v e a l i n g that the former a c t i o n s between t h e p a r t i e s . evidence (Ala. substantially v. F i r s t Alabama Bank o f Birmingham, systematically hidden equity cause 779 So. 2 d 1 2 1 6 , 1218 adduced had jurisdiction." o n t h e same a c t i o n . " Wheeler 2d relitigation adjudicated ( A l a . 2002). the former suit which (3) f i n a l l y o f competent then subsequent issue of res judicata bars p a r t i e s and 766, present, 49 S o . 3 d 7 0 0 , 702 (2) p r e v i o u s l y l i t i g a t e d b e t w e e n (4) b y a c o u r t 2d v. W i c k s, 2010). "The So. and Wicks two adduced and fair of the parties' relative and because parties' the i n t e r e s t s i n t h e e q u i t y a c c o u n t h a v e n e v e r b e e n a d j u d i c a t e d on 11 2090469 t h e m e r i t s , we c o n c l u d e t h a t t h e d o c t r i n e o f r e s j u d i c a t a d o e s not apply equitable i n this defense case; of On the record, address the former account, as noted neither does the laches. the t r i a l wife's court marital that interest i n order i n the to equity a signed document i n d i c a t i n g Although the former husband which may be e n t i t l e d d i d not exist separate entry t o produce opined s h e was a c o - o w n e r o f t h a t a c c o u n t . that she needed below, property until because 2004 the equity discovery i n this equity parties account jo i n t l y former wife at purchased Kist stock, the earliest, that stock was h i s following the t h e same i s n o t t r u e The d o c u m e n t s p r o d u c e d modification to the Gold judgment, account. began that he o b t a i n e d of the p a r t i e s ' divorce regarding signed t o argue litigation accumulate indicate that the value the poultry during as farm soon as t h e i n 1988. The o f f e r e d documents i n d i c a t i n g t h a t t h e p a r t i e s had a contract t o purchase t h e farm, relying p r i m a r i l y on a down p a y m e n t f r o m t h e f o r m e r h u s b a n d ' s s a l e o f h i s b u s i n e s s and the former wife's for the purchase. annual nurse's Although s a l a r y as t h e c o l l a t e r a l the parties' divorce judgment awarded t h e farm, t h e p o u l t r y , and t h e r e l a t e d farm equipment 12 2090469 to the not mentioned Thus, all. f o r m e r h u s b a n d , t h e e q u i t y a c c o u n t was that account we agree remained an with the undivided former joint wife marital asset t h e e n t r y o f t h e d i v o r c e j u d g m e n t . See Ex p a r t e 2d So. at 673, and M c G u i r e v. In B a r g a n i e r v. Horton, Barganier, 586 supra, this 2d the court equity following Davis, at 495 9. noted: "A p r o p e r t y a g r e e m e n t may be a l t e r e d , a m e n d e d , o r v a c a t e d i f one p a r t y p r o c u r e s t h e a g r e e m e n t b y f r a u d o r c o n c e a l s a s s e t s o r l i a b i l i t i e s . Ex p a r t e B r i c e , 340 So. 2d 792, 7 94-95 ( A l a . 1976); Nelson v. N e l s o n , 408 So. 2d 1 0 1 , 103 ( A l a . C i v . App. 1981). Our appellate courts have p r e v i o u s l y sanctioned e f f o r t s to set a s i d e or modify d i v o r c e judgments that were o b t a i n e d on the basis of information w i t h h e l d f r o m one p a r t y b y t h e o t h e r . S e e , e.g., Brice, 340 So. 2d at 7 94-95 (the t r i a l court's m o d i f i c a t i o n o f t h e d i v o r c e j u d g m e n t was affirmed b e c a u s e the w i f e had c o n c e a l e d s e v e r a l debts from the husband and the court during negotiations regarding the terms of the parties' separation a g r e e m e n t ) ; W o r t h e y v . W o r t h e y , 491 So. 2 d 953 ( A l a . Civ. App. 1986) (a s u m m a r y j u d g m e n t e n t e r e d i n t h e w i f e ' s a c t i o n t o s e t a s i d e t h e d i v o r c e j u d g m e n t was r e v e r s e d a n d t h e c a s e was r e m a n d e d f o r t r i a l b e c a u s e the husband had induced the wife to sign a s e p a r a t i o n a g r e e m e n t by m i s r e p r e s e n t i n g t o t h e w i f e the p a r t i e s ' net w o r t h , t e l l i n g her the p a r t i e s had o n l y d e b t s when t h e y a c t u a l l y h a d a n e t w o r t h o f approximately $1,000,000). A s e p a r a t i o n agreement i n c o r p o r a t e d i n t o a d i v o r c e j u d g m e n t m u s t be fair, reasonable, and j u s t , and f r e e f r o m f r a u d , duress, o r o t h e r c o e r c i o n . K u n k e l v . K u n k e l , 547 So. 2 d 5 5 5 , 556 ( A l a . C i v . App. 1989)." 13 at So. 2090469 669 So. 2d a t 9 3 7 - 3 8 . Worthey, court 491 So. reversed action the a which because misrepresentations Here, is because still an former wife or 2006 60(b), case had been the 1986), sought based asset -- asset, i n no impinges been the former upon t h e because, granting based on husband. account relief finality of to of the -¬ the 1993 3 C i v . P., he agreement the e q u i t y marital A l a . R. their had undivided way set aside to i n an an by this husband upon agreement assets t o Worthy v. i n which f o r a former had the u n d i s c l o s e d former husband interpreting wife regarding judgments. The similarities ( A l a . C i v . App. former judgment, parties, 953 case has a summary j u d g m e n t i n which divorce 2d This also asserts that application bars the former wife's claims, i t establish that that rule and requests Rule action i n this Alabama for of relief caselaw from a R e g a r d i n g t h e f o r m e r h u s b a n d ' s l a c h e s a r g u m e n t , we n o t e t h a t " ' o n e who " s e e k [ s ] e q u i t y m u s t do e q u i t y " a n d "one t h a t c o m e s i n t o e q u i t y m u s t come w i t h c l e a n h a n d s . " ' " Ex parte P a r i s h , 808 S o . 2 d 3 0 , 35 ( A l a . 2 0 0 1 ) (quoting J & M B a i l B o n d i n g Co., v. Hayes, 748 So. 2d 198, 199 ( A l a . 1999), q u o t i n g i n t u r n L e v i n e v . L e v i n e , 262 A l a . 4 9 1 , 4 9 1 , 80 S o . 2 d 2 3 5 , 237 ( 1 9 5 5 ) ) . B e c a u s e we h a v e c o n c l u d e d t h a t t h e e v i d e n c e i n d i c a t e d t h a t the former husband had concealed the equity a c c o u n t , we w i l l n o t a p p l y a n e q u i t a b l e p r i n c i p l e i n f a v o r o f the former husband. 3 14 2090469 j u d g m e n t b a s e d u p o n " f r a u d " m u s t b e made w i t h i n f o u r m o n t h s the entry wife the of t h a t judgment. s p e c i f i c a l l y a s s e r t s t h a t she parties' divorce apply. Thus, partial entered or in The Ala. to because necessary the extent seeking the trial we Rule to set 60(b) court's former aside does judgment time c o n s t r a i n t s of conclude that that not on Rule judgment was error. 1975, the to husband bars parties allow also a no not 4 of Although evidence that of been division p a r t i e s were not identify asserts division had Alabama s t a t u t o r y law. the i s not judgment; t h e r e f o r e , 60(b)(3), former Code that case, however, the f i n d i n g s i s r e f e r a b l e to the 60(b)(2) can In this of his 30-2-51(b) (1), brokerage married that the account account 10 the in record r e q u i s i t e 10 that years pursuant i t i s c l e a r from the married the § would to record years, we tend to That statute provides: "The judge, at his or her d i s c r e t i o n , may i n c l u d e i n the e s t a t e of e i t h e r spouse the p r e s e n t v a l u e of any f u t u r e o r c u r r e n t r e t i r e m e n t b e n e f i t s , that a s p o u s e may have a v e s t e d i n t e r e s t i n o r may be receiving on the date the action for divorce is filed, p r o v i d e d t h a t , " among o t h e r c o n d i t i o n s , " [ t ] h e p a r t i e s h a v e been m a r r i e d for a period of 10 years during which the r e t i r e m e n t was b e i n g a c c u m u l a t e d . " 4 15 2090469 establish of the fact that account a "retirement" mere fact that the equity during t h e former selling the Gold account i n h i s own name d o e s assertion insofar that and into we can only that a brokerage n o t overcome equity that t h e former account, account the t r i a l from "retirement" wife's at least undivided t h e former husband's the equity conclude The i n 2005 he 1988 a n d 1 9 9 3 , was a n Having reviewed regarding testified marriage. assets and t h e proceeds the preexisting the evidence trial, stock as i t e x i s t e d between marital asset. the parties' husband had p l a c e d a l l t h e equity-account Kist a c c o u n t was i n t h e n a t u r e defenses adduced court at erred i n p r e c l u d i n g t h e former w i f e from a s s e r t i n g f r a u d and c o n v e r s i o n claims against undivided The remanded former appeal t h e husband marital trial asset, court's request i s granted husband's request the equity judgment f o r proceedings wife's and p u r s u i n g in the amount with o f an of REMANDED. 16 and t h e cause i s this opinion. attorney $1,500; f o r an award o f an a t t o r n e y denied. R E V E R S E D AND award of the account. i s reversed, consistent f o r an a division the The f e e on former f e e on a p p e a l i s 2090469 Thompson, P . J . , c o n c u r s . Thomas, J . , c o n c u r s i n the r e s u l t , Moore, i n the r e s u l t , Bryan, J . , concurs J . , joins. 17 without with writing. writing, which 2090469 MOORE, J u d g e , c o n c u r r i n g i n t h e I agree favor of that result. t h e j u d g m e n t on p a r t i a l Shannon Cahill ("the former findings husband") reversed, but not f o r the reasons stated The evidence i n the record husband Gold funds t o purchase subsequently discloses Kist, which, cooperative. certain a t t h e t i m e , was Pursuant equity a poultry operated pursuant value to that to the that, t o an agreement, of the while the p a r t i e s agreement, nonprofit assigned former Between were m a r r i e d , t h e account with husband 1988 equitable and the property they that incorporated t h a t agreement, f a i l e d t o d i s p o s e of t h e p a r t i e s ' interests in wife Gold Kist filed an equity action that however, a subsequently the judgment division; and accrued When t h e p a r t i e s d i v o r c e d i n 1 9 9 3 , an the former agreement Gold Kist 1993, on i n 1988, farm t h a t the on t h e c o o p e r a t i v e ' s a n n u a l e a r n i n g s . agreed opinion. o p e r a t i n g as a account be ("the f o r m e r w i f e " ) based v a l u e of $197,829.21. should i n t h e main former husband and A n t o i n e t t e C a h i l l Smith used m a r i t a l entered i n account. in In January which, requested that the Marshall C i r c u i t the among other Court ("the t r i a l award her the monetary v a l u e of her p o r t i o n 18 2009, former things, she court") of the Gold Kist 2090469 equity account. two-day t r i a l , The court main does divorce prompting opinion n o t make court this denied to that c o r r e c t l y notes specific 3d a t asset 6 7 2 , 673 (Ala. the former Kist 1986)). account; that Nichols, actually before the divorce, marital property listed in a the divorce."'" under failing interests i n the Gold judgment, i n effect, dispose Kist kept before wife marital equity equity intact 19 of the account, owner o f (and as that Nichols an As v. such, inchoate account. See ( A l a . C i v . App. parties' t h e 1993 the former their funds), See retained 495 Alabama law, ( A l a . C i v . App. 2001). i n the Gold K i s t to Davis, the marriage property. the former right case, S t e p h e n s v . S t e p h e n s , 472 S o . 2 d 1 0 7 1 , 1 0 7 2 - 7 3 By asset as t h e s o l e however, of j o i n t marital 824 S o . 2 d 7 9 7 , 802 1985). trial i n t h e same p o s i t i o n In this interest during r e s u l t of the contribution was a i n t u r n Ex p a r t e h u s b a n d was equity b e c a u s e he a c q u i r e d interest after a ( q u o t i n g B r o w n v . B r o w n , 26 S o . 3 d 1 2 1 0 , 1 2 1 9 2d Gold "'"when as t h e y were i n b e f o r e So. a that d i s p o s i t i o n o f an ( A l a . C i v . App. 2007), q u o t i n g divorce, request appeal. n.2 the that [judgment], the p a r t i e s are l e f t relative So. The t r i a l wife's relative divorce marital 2090469 property court rights i n that concluded that asset. To t h e e x t e n t t h e former wife that that lost the t r i a l interest b e c a u s e t h e G o l d K i s t e q u i t y a c c o u n t was t i t l e d i n t h e name o f the to reversal. former In sought husband only, her January the t r i a l 2009 court complaint, erred t h e former an a s c e r t a i n m e n t a n d award o f t h e v a l u e property interest i n the Gold Kist equity a c t i o n was c o n t e m p l a t e d a n d a p p r o v e d b y t h i s Lacy, 4 0 3 S o . 2 d 2 5 1 , 254 supreme action court property division benefits" as t h e former former wife made or clear i n her brief aside t h e 1993 judgment, under Rule likewise laches because filing court which i n Lacy v. and by our 495 So. 2 d a t 674. The improper division husband argues. to the t r i a l to this court, of "retirement Furthermore, court, and a l s o s h e was n o t s e e k i n g so any time as t h e limitations makes t os e t applicable 6 0 , A l a . R. C i v . P., d o n o t b a r h e r a c t i o n . action suffered account, an i m p r o p e r m o d i f i c a t i o n o f a p r i o r an clear Davis, merely of her m a r i t a l ( A l a . C i v . App. 1981), i n Ex p a r t e i s n o t one s e e k i n g wife i s not barred the evidence by t h e former by fails husband the equitable defense 20 of t o d i s c l o s e any p r e j u d i c e based on t h e t i m i n g See M i l l s o f t h e 2009 c o m p l a i n t . The v. D a i l e y , of the 38 S o . 3 d 2090469 731, 737 ( A l a . C i v . App. a l s o does not bar dispose of the m a r i t a l a s s e t to have file the former husband's which dealt 13(a), Ala. arguments, to action an the evidence award her as P. The record trial of w e l l as I do not former equity any Bryan, J., over not former wife did the different not trial court counterclaim value to See court's no other other valid judgment. allow 1993 Rule makes d i s c l o s e any of her time the matter. husband should interest express husband's account judgment d i d compulsory former t h e p r o v e n amount. case, a does the a w a r d w o u l d o b v i a t e any the as entirely Civ. the 1993 2005 c h i l d - s u p p o r t - m o d i f i c a t i o n a c t i o n , e q u i t y account at the entered, d o c t r i n e of res j u d i c a t a a t i s s u e and f o r a f f i r m i n g the remand, present Kist the and ground On the with R. The the a c t i o n because the not legal 2008) . the former wife interest i n the Gold divorce judgment was that value, and accruing on Due to the procedural any opinion as to posture whether c l a i m s of f r a u d or c o n v e r s i o n alleged the concealment years. concurs. 21 of the that based Gold of on Kist

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