Rosemary Posey Brown v. James Earl Brown

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REL: 4/29/2011 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 2091167 Rosemary Posey Brown v. James E a r l Brown Appeal from Baldwin C i r c u i t Court (DR-03-1151.01 & DR-03-1151.02) THOMAS, Judge. Rosemary Posey Brown ("the second ("the e x w i f e " ) a n d James E a r l exhusband") were d i v o r c e d i n January time these parties have been b e f o r e 2006. this This Brown i s the court. See 2091167 B r o w n v . B r o w n , 26 Ex parte Brown, In January j u d g m e n t was 26 contempt. The in So. pending filed held as exhusband's petition residence. In placed the for filed petitions be the for by Both pay that affirmed the exwife the and the other the t h a t the a divorce in exhusband $60,000 judgment. exwife be property The 1 held t h e m o r t g a g e p a y m e n t on t h e petitions the this petitions on s u p p l e m e n t o r amend h i s p l e a d i n g s placed court appeal, the requesting and were r e s o l u t i o n of the consolidated hold divorce in a pleading to to the after rehearing the requested requested t o pay from both seeking failing 2007), 2009). appeal court, petition 2009, contempt exhusband (Ala. docket pending October application 1222 in this ordered contempt f o r f a i l i n g ( A l a . C i v . App. while exwife's contempt administrative 3d petitions settlement marital 3 d 1210 2007, exhusband be So. the former on the appeal. dismissed the active in the trial court docket. The that the two requesting to be with additional contempt able requests to to The e x w i f e ' s p e t i t i o n a l s o s o u g h t t h a t a t h i r d p a r t y , a p r i v a t e i n d i v i d u a l who h e l d t h e s e c o n d m o r t g a g e on t h e f o r m e r m a r i t a l r e s i d e n c e , be e n j o i n e d f r o m f o r e c l o s i n g t h e second mortgage. T h a t c l a i m was s e v e r e d f r o m t h e c o n t e m p t c l a i m a n d assigned to another c i r c u i t judge. 1 2 2091167 hold the exwife exhusband's exhusband in contempt. motion. requested In The his that the trial court exwife be held the pleadings, "supplemental" granted the in (1) failing t o c o n v e y a t i m e s h a r e she was the divorce j u d g m e n t and required pay the exhusband credit-card (3) failing that The the the order residence assist a exhusband, to the trial were responsible e x h u s b a n d , and exhusband to convey i n to to do so pay or to certain contended she was amended d i v o r c e j u d g m e n t , had requested f o r the and the paid that in and former m a r i t a l to he prevent be awarded c r e d i t - c a r d d e b t he other exwife at which court expenses he maintaining the entered transferred, that barred for failing for had had paid paid the a in marital divorce. trial t i m e s h a r e be realty the a f t e r the After the him mortgage payments to (2) exhusband exhusband judgment reimbursing and the be ordered t h e m o r t g a g e p a y m e n t s on which foreclosure. value, pursuant to the t o pay residence, she its debts r e q u i r e d t o pay that contempt by res $45,530.17 t h a t the only witness a judgment a l l other judicata, that in was the ordering that issues the c r e d i t - c a r d debt exwife was 3 responsible relating exwife paid for by was the $34,703.63 2091167 i n mortgage payments for the costs judgment exwife appeal, marital that September parties awarded the exhusband a judgment amounts. After the exwife the date by payments against the her postjudgment motion makes t h r e e as of a arguments. that the companion was the law-of-the-case had not s e p a r a t e d a t the contempt in April trial. been She the parties' the exwife e s t a b l i s h e d as d o c t r i n e and 2003 first credit-card argument, s e p a r a t i o n had the exhusband d i d not prove result, The 2 appealed. Secondly, 2003 contended payments residence. i n c u r r e d by her d u r i n g the p e r i o d a f t e r separation. that the t h a t the exhusband d i d not prove was argues maintaining the exwife On debt further f o r those denied, argues of a n d o t h e r sums e x p e n d e d b y t h e e x h u s b a n d that the as t h e e x h u s b a n d had Finally, argues f o r monthly cash he h a d made t o t h e e x w i f e d u r i n g 2 0 0 6 a n d t h a t , as a he d i d not establish under the d i v o r c e the reason the exwife that she owed him for those judgment. The e x w i f e ' s r e q u e s t t h a t t h e e x h u s b a n d be h e l d i n c o n t e m p t f o r f a i l i n g t o pay a $60,000 p r o p e r t y s e t t l e m e n t t o t h e e x w i f e was r e n d e r e d m o o t b y t h i s c o u r t ' s r e v e r s a l o f t h e $ 6 0 , 0 0 0 a w a r d t o t h e e x w i f e i n B r o w n , 26 S o . 3 d a t 1 2 1 9 . 2 4 2091167 At the t r i a l , separated i n April exwife permission his t h e exhusband name on separation. 2003. testified He s a i d t h a t that the parties he h a d n o t g i v e n t h e t o o p e n c r e d i t c a r d s i n h i s name o r t o s i g n applications or The exhusband checks then during testified the period concerning of eight c r e d i t - c a r d d e b t s t h a t he h a d p a i d o f f a n d w h i c h he c o n t e n d e d were the responsibility divorce testified the that he Chevron credit the card. any benefit shown had not signed the from t h e card provided that signed the debt a s s o c i a t e d amended that card i t . i n the exwife's When name b e that he h a d The e x h u s b a n d s a i d t h a t he p a i d with this had not applied card f o r that e x w i f e "made a p p l i c a t i o n " f o r t h a t that f o r that he h a d n o t r e c e i v e d he h a d n o t u s e d the exhusband testified card. He said that the account i nApril 2003 a n d no b e n e f i t from t h e he h a d r e c e i v e d 5 off i n t h e amount o f $220.61. t h e AT&T c r e d i t c a r d , testified exhusband the exwife t o apply t h e exhusband t e s t i f i e d t h e document. Regarding he a second f o rthe exwife, not and that the the application He f u r t h e r t e s t i f i e d a request further under card, He s a i d t h a t h e h a d n o t a u t h o r i z e d for that the exwife judgment. Regarding card. of 2091167 card and had not used i t . According t o the exhusband, t r a n s f e r c h e c k s had been drawn a g a i n s t July 2003. The $7,656.68 b a l a n c e exhusband t e s t i f i e d on t h a t t h e account i n June and that April applied 24, 2003, t h e he paid off a card. Regarding the C i t i B a n k c r e d i t card, on two w h i c h was a p p l i e d f o r the exhusband t e s t i f i e d f o r the account. He also stated that that he he had had not never used the account. A c c o r d i n g t o t h e e x h u s b a n d , he h a d p a i d t h e $8,249.39 on t h a t balance Regarding that the was t h e MBNA c r e d i t account separation. had However, at a zero balance that two 2004: one been Fleet card, opened the exhusband well before the exhusband t e s t i f i e d i n October 2003. c h e c k s had been to account. parties' that the account Mortgage testified o f f of the account i n August and drawn further Mortgage. A c c o r d i n g t o the exhusband, n e i t h e r 3 one He the testified to Chase check bore h i s signature. On d i r e c t e x a m i n a t i o n , t h e e x h u s b a n d t e s t i f i e d t h a t t h e a c c o u n t h a d a z e r o b a l a n c e i n 2004 a n d t h a t t h e c h e c k s w e r e d r a w n o n t h e a c c o u n t i n t h e summer o f 2 0 0 3 . On crosse x a m i n a t i o n , however, t h e e x h u s b a n d t e s t i f i e d i n more d e t a i l and i n d i c a t e d t h a t t h e a c c o u n t had a z e r o b a l a n c e i n September 2003 a n d t h a t t h e c h e c k s were drawn on t h e a c c o u n t i n 2004. B e c a u s e t h e e x h u s b a n d ' s t e s t i m o n y on c r o s s - e x a m i n a t i o n i s more l o g i c a l , we h a v e u s e d t h a t t e s t i m o n y r e g a r d i n g t h e d a t e s . 3 6 2091167 The e x h u s b a n d s a i d t h a t he d i d n o t h a v e a n y a c c o u n t s a t F l e e t Mortgage o r a t Chase Mortgage t h a t w o u l d have r e q u i r e d write the checks least o n e o f w h i c h was of the account said that balance on t h e MBNA a c c o u n t . on t h i s other made o u t t o t h e e x w i f e , i n October he p a i d Two a total and December o f $18,974 him t o checks, at were drawn o f f The exhusband 2004. i n 2006 t o p a y o f f the account. Regarding the D i s c o v e r c r e d i t - c a r d account, the exhusband testified authorized further that t h e e x w i f e had been added t o the account u s e r i n J a n u a r y 2003 w i t h o u t h i s a u t h o r i z a t i o n . testified that, $1,325.19 balance. when exhusband the as as o f J a n u a r y 2004, the account A c c o r d i n g t o the exhusband, paid o f f the account, He had a in July the an 2006, balance was $2,179.17 Regarding testified that Wal-Mart credit t h a t he h a d n o t a p p l i e d he d i d n o t u s e t h e W a l - M a r t testify that the regarding he h a d p a i d Regarding testified that card. t h e $3,340 b a l a n c e had of America not applied 7 the f o r the card. The t h e d a t e t h e a c c o u n t was t h e Bank he card, He also said exhusband d i d not opened. on t h e c a r d c r e d i t card, f o r the exhusband He stated i n 2007. the card. exhusband He denied 2091167 that the signature purporting exhusband on the pre-approved t o b e h i s was h i s a c t u a l said that the other signature. never Although the used the card. balance settled on t h e c a r d however, t h e on t h e a p p l i c a t i o n He a l s o stated the exhusband $9, 3 6 4 . 7 5 , form that he h a d testified he s a i d that that he h a d t h e a c c o u n t f o r $2,000. Finally, testified testify was signature; signature f o r m was t h e e x w i f e ' s application regarding that the Discover he h a d n o t a p p l i e d loan, f o r the loan. on d i r e c t e x a m i n a t i o n r e g a r d i n g made; however, the on c r o s s - e x a m i n a t i o n exhusband He d i d n o t the date the loan he s t a t e d that was the loan a p p l i c a t i o n was d a t e d J a n u a r y 2 9 , 2 0 0 3 . He d i d s t a t e t h a t t h e loan o f $2,910. h a d an o u t s t a n d i n g , unpaid balance Notably, t h e exhusband d i dnot enter the a p p l i c a t i o n forms credit about cards other f o r or the statements at issue. On a few o f the charges questioned by the exwife's charges besides i n t o evidence any o f cross-examination, on o f any o f the he testified a few o f the accounts attorney. He e x p l a i n e d t h e two t r a n s f e r checks that the drawn on t h e AT&T a c c o u n t i n J u n e a n d J u l y 2 0 0 3 w e r e c h a r g e s i n J u n e , and August 2003 f o r i t e m s including p r e s c r i p t i o n s from 8 when July USAA, 2091167 for a USAA insurance premium, exhusband testified insurance coverage f o r p r e s c r i p t i o n s . that some that and neither o f the charges o f $1,484.99 Likewise, The D i s c o v e r i n August day spa. he n o r t h e e x w i f e on t h e C i t i B a n k A u g u s t and September 2003. balance f o r a 2003, card card, The h a d USAA he testified were made i n he s a i d , and, according had a to the exhusband, t h e Bank o f A m e r i c a c a r d h a d a b a l a n c e o f $6,662.24 on September The 2003. pertinent regarding during 9, portion the exwife's o f t h e amended divorce r e s p o n s i b i l i t y f o r debts the p a r t i e s ' separation reads judgment she i n c u r r e d as f o l l o w s : "The [exwife] i s r e s p o n s i b l e f o r a l l expenses i n c u r r e d b y h e r on c r e d i t c a r d s i n [the e x h u s b a n d ' s ] name o r t h e p a r t i e s ' names j o i n t l y , s i n c e t h e d a t e of s e p a r a t i o n . The [ e x w i f e ] w a s a w a r d e d t e m p o r a r y a l i m o n y p e n d i n g t h e d i v o r c e [ , ] a n d was r e s p o n s i b l e for a l l expenses she i n c u r r e d , except f o r those s p e c i f i c a l l y assigned t o [the exhusband]. Further [the exwife] i s t o d e s t r o y a l l c r e d i t cards i n h e r possession t h a t have t h e [exhusband] l i s t e d as a r e s p o n s i b l e p a r t y . [The e x w i f e ] s h a l l r e i m b u r s e [ t h e e x h u s b a n d ] f o r a n y b i l l s on t h e s e c r e d i t c a r d s t h a t he h a s p a i d . " The the exwife charges argues that on t h e v a r i o u s the exhusband d i d n o t prove credit cards or t h a t t h e y were i n c u r r e d b y h e r d u r i n g parties separated. First, we 9 must that were i n c u r r e d b y h e r the period consider the after the exwife's 2091167 a r g u m e n t t h a t , b a s e d on t h e l a w - o f - t h e - c a s e d o c t r i n e , t h e d a t e of the p a r t i e s ' separation despite the exhusband's separated doctrine in April was e s t a b l i s h e d testimony 2003. The h a s no a p p l i c a t i o n at t r i a l exhusband as September that 2003 the parties argues that the here. "'According t o the d o c t r i n e of the law of the case, "whatever i s once established between t h e same p a r t i e s i n t h e same c a s e c o n t i n u e s t o b e t h e l a w o f that case, whether or not correct on general principles, so l o n g as t h e f a c t s on w h i c h t h e d e c i s i o n was p r e d i c a t e d c o n t i n u e t o b e t h e f a c t s o f t h e c a s e . " B l u m b e r g v . T o u c h e R o s s & C o . , 514 S o . 2 d 922, 924 ( A l a . 1 9 8 7 ) . . . . B e c a u s e t h e t r i a l court entered [ i t s ] j u d g m e n t o n t h e same r e c o r d a s t h a t before t h e C o u r t o f C i v i l A p p e a l s , t h e f a c t s on which the Court of C i v i l Appeals' decision was predicated continue t o be t h e f a c t s o f t h e c a s e , and, therefore, the Court of Civil Appeals' conclusions i n i t s ... o p i n i o n a r e t h e l a w o f t h e case.'" Quimby v. M e m o r i a l 2002) (quoting 2001)). September 2003, that the of I n c . , 835 S o . 2 d 1 3 4 , 1 3 5 - 3 6 ( A l a . S.T.S., 8 0 6 S o . 2 d 3 3 6 , 3 4 1 - 4 2 ( A l a . our opinion procedural contends date Ex p a r t e Because underlying Parks, facts see Brown, this court's recounted that 26 separation. 10 the parties So. opinion as a p o r t i o n 3d at separated 1212, t h e established of the that in exwife date as 2091167 As only the exhusband argues, to those issues court. See H i l b , So. 1045, 2d established by consideration of However, court separation precluded note that "judicial facts in his petition affirmance the date in by the court the to preclude the parties. on t h e i s s u e s d e c i d e d i n t h e the 2003 exwife such that of the p a r t i e s doctrine. requested that the trial of the exhusband's statement f o r the w r i t of certiorari from i n Brown, i n w h i c h t h e exhusband had to case recounted the of of the separation notice" notice which of extend briefs September of the p a r t i e s ' judicial law 989 d i d not decide that the date of the of the date take vehicle not by the law-of-the-case also While ("'[T]he does appellate v. B e i e r s d o e r f e r , i n Brown, t h i s was court that Co. applies n o t p r e s e n t e d o r d e c i d e d on t h e p r i o r stated Thus, t h i s reconsideration court's appeal t h a t d a t e h a d no b e a r i n g parties' We & Hamilton In our opinion separation opinion. was prior the doctrine and d e c i d e d by t h e ( A l a . 2007) of issues appeal.'"). date a considered Rogal 1057 however, separation may not draw the have was been court's 11 2003. appropriate attention exhusband's admission t h a t the date of the p a r t i e s ' this stated September the of to the separation 2091167 was September 2003, the e x h u s b a n d ' s r e l i a n c e on of c e r t i o r a r i the trial bearing Nat'l Ins. Law § (explaining a judicial his not object. that date i n h i s p e t i t i o n would have been free to brief Co. 9 v. John 2588 the Daughtery, Henry at 840 writ fact, which of the consider Wigmore, 821-22 regarding an However, the the 2d as evidence See 152, Evidence (Chadbourn d i f f e r e n c e between admission). So. rev. ed. d a t e o f s e p a r a t i o n was not a of 161. had C l e a r l y , because no this bearing court and o f t h a t f a c t was that fact. on our the trial. Daughtery, date separation issues of presented supreme c o u r t , not Thus, exhusband's the at statement cannot the agree regarding the The trial and 840 of the the decided parties' exwife 2d by both recitation truth that of the date i n September c o u r t c o u l d p r o p e r l y have d e t e r m i n e d from 12 at parties separation separate in conceding So. exhusband's with e s t a b l i s h e d t h a t the p a r t i e s d i d indeed 2003. and judicial f o r the purpose of conceding the we 1981)) exhusband's statement the fact in admission w h i c h i s made f o r t h e s p e c i f i c p u r p o s e o f some (Ala. Trials admission, truth Liberty 161 at ordinary The f o r the on t h e a c t u a l d a t e t h e p a r t i e s s e p a r a t e d . (quoting Common did i s e q u i v a l e n t t o an a d m i s s i o n court Life 2002) exhusband the 2091167 exhusband's testimony that the parties separated i n April 2003. We now t u r n t o t h e e x w i f e ' s trial d i d not establish that credit pay cards and t h a t were made that s h e made t h e exhusband the evidence during argument t h a t t h e e v i d e n c e a t the charges claimed s h e was r e q u i r e d t o d i dnot establish that the relevant on t h e period, after the charges the parties separated. "Where t h e t r i a l c o u r t h a s h e a r d o r e t e n u s e v i d e n c e a n d h a s made f i n d i n g s b a s e d o n t h a t e v i d e n c e , we presume t h a t t h e t r i a l c o u r t ' s judgment b a s e d on t h o s e f i n d i n g s i s c o r r e c t , a n d i t w i l l be r e v e r s e d o n l y i f t h e judgment i s f o u n d t o be p l a i n l y a n d p a l p a b l y wrong, a f t e r a c o n s i d e r a t i o n o f a l l t h e evidence and a f t e r making a l l the inferences that c a n b e l o g i c a l l y made f r o m t h e e v i d e n c e , C l a r k v. A l b e r t v i l l e N u r s i n g Home, I n c . , 5 4 5 S o . 2 d 9 ( A l a . 1 9 8 9 ) ; a n d K i n g v . T r a v e l e r s I n s . Co., 513 So. 2d 1023 (Ala. 1987); and t h e t r i a l court's judgment w i l l be a f f i r m e d i f , u n d e r a n y r e a s o n a b l e a s p e c t o f the testimony, there i s c r e d i b l e evidence t o support the judgment. C l a r k v. A l b e r t v i l l e N u r s i n g Home, I n c . , s u p r a ; M c C r a r y v . B u t l e r , 540 So. 2 d 736 ( A l a . 1989). " Adams v. Boan, 559 So. 2d appellate courts judgment f o r that decision i s supported 1084, 1086 are not allowed of the t r i a l from t h e e v i d e n c e . K n i g h t inferences Health "'The their i f the t r i a l v. B e v e r l y 13 1990). to substitute court by reasonable (Ala. own court's t o be drawn Care Bay Manor 2091167 Health parte Care Ctr., 8 2 0 S o . 2 d 9 2 , 98 ( A l a . 2001) ( q u o t i n g P i e l a c h , 681 So. 2 d 1 5 4 , 154-55 The exhusband argues sufficient evidence from that (Ala. the t r i a l which Ex 1996)). court t o determine had before i t that the exwife o w e d t h e e x h u s b a n d f o r t h e sums h e h a d e x p e n d e d t o r e t i r e t h e credit-card the trial support 418, no debt. court He n o t e s made t h e judgment, that those factual judge those we w i l l findings v. p o s i t i o n to consider DeLude, ("When r e v i e w i n g 827 So. a trial 2d oral rule, trial court court j u d g e made that to to 953 So. 2 d the t r i a l support the court i s i n the evidence presented a n d make See, e.g., Auto-Owners I n s . 8 0 6 , 811 meaning t h a t deference trial assume that (Ala. C i v . App. 2001) c o u r t ' s f i n d i n g s o f f a c t a f t e r i t has taken the testimony, necessary court and n o t t h i s decisions regarding the evidence. Co. findings necessary judgment."), and t h a t t h e t r i a l the best must assume ("Because t h e t r i a l findings of fact, made court see B e n e f i e l d v. B e n e f i e l d , 422 ( A l a . C i v . A p p . 2 0 0 6 ) specific this this court follow the ore tenus must be a c c o r d e d t h e d e c i s i o n o f i n i t s factual personally heard must determinations the oral o p p o r t u n i t y t o observe and evaluate 14 testimony thewitnesses; because t h e and had the that court, 2091167 therefore, i s p r e s u m e d t o be testimony and evidence."). argument i s not t h a t the evidence or improperly that the linking her period the incurred the exwife by credit prove parties' court to present card any debt exwife relating during of the d e b t was not i t is evidence establish the incurred. We to present evidence various parties' was separation. t h a t the exhusband i n c u r r e d by agree cards her failed after the the exhusband e s t a b l i s h e d i n c u r r e d the debt a s s o c i a t e d w i t h those H o w e v e r , he d i d n o t Instead, cards. s p e c i f i c a l l y e s t a b l i s h t h a t the a l l of associated with 4 the the the separation. t h a t he h a d exwife. to evidence, to the exwife's evaluated actual or exhusband f a i l e d Regarding a l l the c r e d i t cards, debt any charges disagree w i t h the exwife that of the improperly c r e d i t - c a r d d e b t was the the trial crux reconciled conflicting t h a t the a l l of H o w e v e r , we to to However, the failed i n which the w i t h the that exhusband i n a b e t t e r p o s i t i o n to weigh he each of left the those trial cards was i n c u r r e d by c o u r t w i t h w h a t he the the argues We r e c o g n i z e , as p o i n t e d o u t by t h e e x h u s b a n d , t h a t t h e t r i a l c o u r t ' s amended d i v o r c e j u d g m e n t r e q u i r e d t h e e x w i f e t o b e r e s p o n s i b l e f o r d e b t s h e i n c u r r e d a f t e r t h e s e p a r a t i o n no matter whether the credit c a r d upon w h i c h the debt was i n c u r r e d was a j o i n t c a r d o r one s o l e l y i n t h e e x h u s b a n d ' s 4 15 2091167 is the reasonable inference that t o amass s u b s t a n t i a l d e b t d u r i n g subsequently Chevron. Moreover, was a n a u t h o r i z e d specifically an i n f e r e n c e that i n the authorizing. signature name The e v i d e n c e appears application, the exwife's along on with that also the AT&T c a r d i nApril reflects Bank a signature exhusband, and t h a t t h e exwife the of user the Discover the exwife the Chevron account a r i s e s because o f t h e request card cards t h e s e p a r a t i o n p e r i o d t h a t he the exwife one o r more o f t h e a c c o u n t s , the used those retired. There i s evidence t h a t on the exwife opened f o r a second exhusband that the America purporting and denied exwife's Visa card t o be t h a t o f "made a p p l i c a t i o n for" the 2003. name. H o w e v e r , t h e e x h u s b a n d s e e m s t o d i s r e g a r d t h e n e c e s s i t y f o r p r o v i n g t h a t t h e d e b t was a c t u a l l y i n c u r r e d b y t h e e x w i f e . He s a y s t h a t h e h a d " e x t e n s i v e d o c u m e n t a t i o n " t h a t h e d i d n o t admit into evidence at t r i a l because the t r i a l court questioned t h e need f o r such i n f o r m a t i o n s i n c e t h e judgment r e q u i r e d t h e e x w i f e t o be r e s p o n s i b l e f o r t h e d e b t r e g a r d l e s s o f w h o s e name w a s o n t h e c r e d i t c a r d . While the t r i a l court's r e l u c t a n c e t o h a v e " t h e c o m p l e t e d o g a n d p o n y s h o w " may b e t h e reason t h e exhusband d i d not present his "extensive d o c u m e n t a t i o n , " t h e e x h u s b a n d was n o t r e l i e v e d o f t h e b u r d e n o f p r o v i n g t h a t t h e e x w i f e was t h e p a r t y t h a t i n c u r r e d t h e debt during the period of separation, w h i c h he d i d n o t u n d e r t a k e t o do. 16 2091167 The first it was the date was of with September 2003, w h i c h w o u l d have been the with Therefore, exhusband established exwife statement was to the beginning to separation. was Bank the date the open any Citibank in April reimburse AT&T during 2003. period of the due the on the a c c o u n t was that credit-card the he accounts trial properly perform required the such exwife tasks during court to 17 and exhusband September not did not authorized the of inferred opened not at the period c o u l d have the 2003 did testify therefore reimburse the card. exhusband had opened reimburse the o p e n e d , he the separation. Chevron card, although trial the America balance Accordingly, to for of required to t h e p e r i o d o f s e p a r a t i o n when t h e e x h u s b a n d had exwife the Likewise, t h a t t h e B a n k o f A m e r i c a c r e d i t c a r d a c c o u n t was the Thus, exhusband the card. the properly $6,662.24; of the debt a s s o c i a t e d w i t h the that to the account f o r the Regarding that the c r e a t e d the i n f e r e n c e t h a t the exwife card the that separation required Chevron exwife debt a s s o c i a t e d properly evidence at t r i a l the was associated debt testify card 2003 and incurred before exwife the established opened i n A p r i l after the exhusband during authorized could exhusband have for 2091167 the debt not associated establish however, as with card. date the that the Wal-Mart explained above, The the account trial i n f e r r e d t h a t t h e W a l - M a r t a c c o u n t was period of separation and, as a exhusband with Unlike accounts, before the the the two checks, The that America checks checks, All drawn i n the four of the of amount o f t h e debt the however, had the a account testified testify o f f of amount o f that the the exhusband balance direct did exwife not had before regarding companies. sign done those so. As the exhusband mentioned was At l e a s t one written the to were i n c u r r e d a f t e r the d a t e of s e p a r a t i o n . the of two the exwife. account i n or a f t e r c h a r g e s i n c u r r e d on 18 well exhusband mortgage he account. $4,700, a l l of the to on credit-card the zero that c h e c k s w e r e w r i t t e n on A u g u s t 2004; t h u s , the was opened by was n o t e d a b o v e , on c r o s s - e x a m i n a t i o n , other have exwife Wal-Mart account exhusband d i d not could the and exhusband t e s t i f i e d off opened; a l s o opened d u r i n g result, separated; the drawn the he of MBNA a c c o u n t 2003. checks Although Bank that did card. parties established September that was court r e q u i r e d to reimburse the exhusband f o r the associated also that account Because the trial 2091167 court could have check t o h e r s e l f court inferred that and t h e o t h e r have exwife checks included had as w e l l , written we the agree that the trial was r e q u i r e d t o r e i m b u r s e t h e e x h u s b a n d t h e a m o u n t he h a d p a i d o n t h e MBNA could the amount indicating August owed that 2003. on the card charges However, account 2002 that the exwife on had been had April 2003 account in Similarly, the not required amount to made testified i n existence an $1,400, since authorized before April 2003. before that be reimbursed that user since there i s no We particular 19 the charged cannot 2003, Thus, t h e e x w i f e loan under card exhusband. incurred i n January separation. judgment. to the February o w e d o n t h e a c c o u n t was l o a n was the p a r t i e s ' t o pay were card was that court properly included the Discover the Discover date preceding 2003 the c r e d i t - c a r d statements, o r some t i m e agree t h a t the t r i a l August that been way t o know w h e t h e r t h e $ 1 , 4 0 0 after in the exhusband had card J a n u a r y 2003; w i t h o u t card, the exhusband e x p l a i n e d the Discover and exwife account. Regarding the Discover the i n t h e amount t h e the a was amended 2091167 Without retired evidence were that actually parties' separation, supports the t r i a l for the entire of t h e t r i a l exhusband card As established of instructed exhusband and April noted on conclude that during We t h e r e f o r e above, incurred a the exwife t o paythe the credit- judgment debt was during by the exwife The favor t h e judgment credit-card separation. to enter reverse him f o rpaying certain the the evidence judgment i n t h e exhusband's been remand the exhusband the exwife i n s o f a r as i t ordered the parties' the trial court i n favor i s of the f o r $40,441. awarded totaling cannot court's t o have The e x w i f e been we by $45,530.17 t o r e i m b u r s e debt. period incurred $45,530.17. court a l l of the debts a l s o argues that the exhusband should a judgment reimbursing him f o r cash $ 5 , 5 5 4 . 0 2 h e made t o t h e e x w i f e 2006. The e x w i f e n o t have payments between January agrees t h a t t h e judgment 2006 required t h a t she be r e s p o n s i b l e f o r t h e mortgage payments and t h a t t h e e x h u s b a n d was p r o p e r l y awarded a judgment p a y m e n t s h e made d u r i n g that to 2006 a n d 2007. t h e e x h u s b a n d was n o t o r d e r e d the exwife and that f o rthose However, 20 she contends t o make t h e c a s h s h e was n o t o b l i g a t e d mortgage payments t o repay those 2091167 amounts, absent p r o o f t h a t t h e y were c o n n e c t e d p a y m e n t s s h e was r e q u i r e d t o make u n d e r t h e d i v o r c e j u d g m e n t . The e x w i f e , however, the sufficiency judgment for former 2d 797, motion c o u r t has 52 So. AFFIRMED her New the r e q u i r e d to preserve evidence in IN 534, PART; 544 a court's reimburse relating to Moore, and J . , concurs that non-jury REVERSED IN PART; Pittman and Bryan, 21 our Stewart, a 905 postjudgment trial f i n d i n g s of f a c t ) ; result, Her i s s u e s r e g a r d i n g the ( A l a . C i v . App. i n the the court precludes 2010) AND where v. (same). REMANDED J J . , concur. without the Kelley INSTRUCTIONS. Thompson, P . J . , him motion. L.L.C. v. (holding n o t made s p e c i f i c 3d trial regarding trial to costs" Properties, ( A l a . 2004) the postjudgment it. of of "housing in argument $34,703.63 i s s u e to the is typically Kelley, exhusband and this to support this 801-02 sufficiency trial the residence to raise consideration So. evidence payments marital failure d i d not present of the awarding mortgage to the mortgage writing. WITH

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