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Johnny K. TREADWAY v. Wendy Michelle TREADWAY
Johnny K. Treadway (“the husband”) appeals from a judgment of the Lawrence Circuit Court (“the trial court”) divorcing him from Wendy Michelle Treadway (“the wife”). The wife was awarded sole physical custody of the parties' two children (“the children”) subject to the husband's visitation. The children were 11 years old and 6 years old at the time of the trial. The husband was ordered to pay child support. The trial court also divided the marital property. Neither party received an award of periodic alimony.
The record in this case indicates the following. The parties married on August 26, 2006. At the time of the trial, the husband was 53 years old and the wife was 37 years old. Despite having left high school during his senior year, the husband had owned a successful automotive-repair business (“the collision center”) for approximately ten years at the time the parties married. During the marriage, the husband expanded his business to include a tire shop.
The wife, who was working as a nurse at the time the parties married, earned a master's degree during the marriage. After the birth of the younger child, the wife began working part time. At the time of the divorce trial, the wife was working full time at a dialysis center. The parties' marriage was the first for the wife and the fifth for the husband. The wife testified that when the parties married she was aware that the husband had been married before, but she had not known their marriage was the husband's fifth.
In 2010, before the birth of the parties' younger child, the wife sought a divorce from the husband (“the previous divorce action”). The previous divorce action was contentious, with each party being arrested at the request of the other during the litigation of that matter. The wife testified that the parties were separated for approximately a year and a half before they reconciled. The trial was already underway in the previous divorce action when the husband told the wife that they should reconcile for the good of the older child. In May 2011, the husband had the wife sign a postnuptial agreement, the previous divorce action was dismissed, and the parties resumed living together in the marital residence. The circumstances surrounding the execution of the postnuptial agreement are discussed in more detail later in this opinion.
The husband filed the current divorce action on April 2, 2015. On May 5, 2015, the wife answered and filed a counterclaim for a divorce. The parties each sought custody of the children. At a May 15, 2015, status conference, the parties agreed to maintain the status quo, i.e., both would remain in the marital residence with the children pending the trial. However, on August 20, 2015, the wife filed a motion for pendente lite relief, asserting that the husband's behavior was becoming erratic, that she felt threatened by him, and that the living arrangement to which they had agreed was no longer appropriate. On August 25, 2015, the husband filed a motion in which he, too, sought a change in the status quo living arrangement. The record does not indicate that the trial court ruled on the parties' requests for pendente lite relief. However, it is clear that, during the litigation of the current divorce action, the wife moved from the marital residence in Moulton, which the husband had purchased before the marriage, to Decatur. The wife said that she lived an approximate 17 minutes' drive from the marital residence, where the husband continued to live. The parties continued to share joint legal and physical custody of the children after the wife's move, however. It appears that the children spent alternating weeks with each parent. They continued to go to school in Moulton, even though the wife lived in the Decatur City Schools' district. The wife testified that the schools in Decatur were better than the schools in Moulton and that she would like for the children to enroll in the Decatur schools.
The evidence was undisputed that both parties loved and cared for the children. Each party claimed that he or she had been the children's primary caregiver during the marriage. The children's teachers testified that both children were doing well in school, both academically and socially. The children participated in extracurricular activities, and the older child, especially, was active in sports. The husband said that he coached the children's sports teams, went camping and swimming with them, and stressed to them the importance of obtaining a college education. The wife testified that she helped the children with their homework, took the children to almost all of their doctors' appointments, and took the children to church each week. She acknowledged that the husband, who did not often attend church himself, did not prevent the children from going to church. The wife testified that, during the weeks the children were in his custody, the husband took the children to their Wednesday evening church programs. The wife was the room mother for the children's classes and attended field trips with them. The husband provided money to the children's classes for the purchase of supplies for the entire class.
The husband testified that he believed the joint-physical-custody arrangement that had been in place for at least two years was in the best interests of the children. The wife sought sole physical custody of the children. She explained that the younger child had been diagnosed with hydronephrosis, a kidney condition that causes the child pain. On one occasion, the wife testified, the school nurse contacted the parties because the child was experiencing significant pain while at school. The wife said that the school nurse recommended that the child see a doctor. However, the wife said, the husband took the child home and put him in a hot bath. The husband testified that the child has kidney stones and that hot baths help. The wife testified that the child does not have kidney stones.
The younger child testified in camera that he would prefer to live with the wife, saying that she took better care of him. The older child, who also testified in camera, said that he liked the “fifty-fifty” arrangement. The older child also testified that the parties did not communicate and that he conveyed messages between them.
The parties' relationship continued to deteriorate after they separated. During the litigation of this action, the wife obtained a protection-from-abuse order (“the PFA order”) pursuant to which she and the husband were to have no contact. The husband was arrested twice for violating the PFA order. The husband testified that, in his opinion, neither arrest was justified. He explained that one of the arrests came after he had noticed one of the children sitting at the baseball field with the wife. The husband said that the sun was in the child's eyes, so he went to his automobile for a baseball cap and took the cap to the child. He said that the wife had him arrested for coming too close. The second arrest, he said, came after he mailed the wife a letter regarding child support. The wife testified that both instances were violations of the PFA order and that she had summoned the police both times. The wife admitted that she and the husband had not had contact of any kind for at least two years by the time of the trial.
The wife testified that the husband had been emotionally abusive toward her during the marriage. She said that the husband belittled her education. She also said that the husband would “ground” her, taking her car keys and cell phone from her until she “learned how to act.” The parties maintained separate bank accounts, and the husband would not allow the wife to know the parties' financial condition. He also threatened her, saying that she would die before he did and that she “would pay” if she did not concede to his wishes in the divorce action. The husband acknowledged that he had put tracking devices on the wife's vehicles both during the marriage and after the parties separated. He said that he had a right to know where his children were.
The wife also testified that the husband had been physically abusive toward her. She said that he had forced her to have sex on one occasion, that he had hit her across the legs with a crepe myrtle switch, and that he had spit on her. The husband denied such conduct. The wife testified that she would wake up at night to find the husband standing over her. She felt threatened by his actions, she said, and moved out of the marital bedroom. The wife also submitted evidence of the husband's prior abuse against previous wives or other women. The husband acknowledged that he had been arrested for assault and harassment “maybe three to four times” in connection with his conduct involving other women.
As to the parties' income and assets, the wife testified that she earned an annual salary of $75,000. The husband testified that the collision center and the tire shop were not doing as well as they once had. He attributed the downturn to the closure of a paper plant in the area, which meant, he said, that people had less money to spend. He testified that, the year before the trial in the current divorce action, he had earned less than he ever had and reported his monthly income at the time of the trial to be $2,961.55. The wife testified that she would find large amounts of cash in the marital residence. During the marriage, she said, the husband had paid cash for a motor home, a swimming pool, a number of race cars, and a detached garage. The parties obtained a number of vehicles during the marriage, including a Camaro the wife had owned before the marriage, a Corvette, pickup trucks, sport-utility vehicles, three Jet Skis, at least two boats, a golf cart, a John Deere Gator utility vehicle, a John Deere tractor, and a John Deere lawn mower. The wife estimated that the value of the parties' vehicles was approximately $237,590.
According to documents from the Lawrence County tax assessor's office, the value of the marital residence was assessed in the amount of $445,870. The husband's 2014 tax documents indicated that the collision center and the tire shop had a value of $495,000. The husband testified that the tire shop had a loan of $140,000. In addition to the marital residence and the husband's businesses, the parties owned other parcels of vacant property. Tax-assessor records indicate that the value of all of the property the parties owned was more than $1 million.
On June 6, 2019, the trial court entered a judgment divorcing the parties on the grounds of incompatibility of temperament and a material breakdown of the marriage. The parties were awarded joint legal custody of the children. The wife was awarded sole physical custody of the children, subject to the husband's standard visitation.
In the judgment, the trial court noted that the parties had accumulated assets of more than $1 million and found that the husband had underreported his income. Therefore, the trial court imputed a monthly income of $5,000 to the husband and ordered him to pay child support in the amount of $894.52 per month.
Furthermore, the trial court found that the postnuptial agreement the parties had executed when they reconciled during the previous divorce action was invalid. The trial court found that the parties owned real property that, according to the Lawrence County tax assessor's office, had a total value of $1,042,270. The husband was awarded all of that property, but he was to pay the wife $210,000, which, the trial court said, represented one-fifth of the total equity value of the property. The trial court also awarded the husband the majority of the parties' personal property, including the vehicles, the boats, and the motor home, and directed the husband to pay the wife $40,000 for her interest in the personal property awarded to the husband. The husband was awarded all right and title to the collision center and the tire shop.
On July 5, 2019, the husband filed a timely motion to alter, amend, or vacate the judgment. That motion was denied by operation of law on October 3, 2019. On November 8, 2019, the husband filed a timely notice of appeal to this court.
On appeal, the husband first contends that the trial court abused its discretion in awarding the wife sole physical custody of the children.
“When evidence in a child custody case has been presented ore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination – it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994), wherein this Court, quoting Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993), set out the well-established rule:
“ ‘ “Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So. 2d 440 (Ala. Civ. App. 1989), and Vail v. Vail, 532 So. 2d 639 (Ala. Civ. App. 1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So. 2d 1343 (Ala. Civ. App. 1990); Flowers v. Flowers, 479 So. 2d 1257 (Ala. Civ. App. 1985).” ’ ”
Ex parte Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996). We also note that, “[w]hen a trial court does not make specific findings of fact concerning an issue, an appellate court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” McGough v. McGough, 710 So. 2d 452, 453 (Ala. Civ. App. 1997) (citing Ex parte Bryowsky, 676 So. 2d at 1324). “[T]he resolution of conflicting evidence is within the exclusive province of the trial court ․” Hedgemon v. United Parcel Serv., Inc., 832 So. 2d 656, 659 (Ala. Civ. App. 2002).
“ ‘When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the “best interest of the child” standard will generally apply. Nye v. Nye, 785 So. 2d 1147 (Ala. Civ. App. 2000); see also Ex parte Byars, 794 So. 2d 345 (Ala. 2001). In making an initial award of custody based on the best interests of the children, a trial court may consider factors such as the “ ‘characteristics of those seeking custody, including age, character, stability, mental and physical health ․ [and] the interpersonal relationship between each child and each parent.’ ” Graham v. Graham, 640 So. 2d 963, 964 (Ala. Civ. App. 1994) (quoting Ex parte Devine, 398 So. 2d 686, 696–97 (Ala. 1981))․ Other factors the trial court may consider in making a custody determination include “the sex and age of the [children], as well as each parent's ability to provide for the [children's] educational, emotional, material, moral, and social needs.” Tims v. Tims, 519 So. 2d 558, 559 (Ala. Civ. App. 1987). The overall focus of the trial court's decision is the best interests and welfare of the children.’
“Steed v. Steed, 877 So. 2d 602, 604 (Ala. Civ. App. 2003).
“Furthermore, when evidence is presented ore tenus, the trial court is ‘ “unique[ly] position[ed] to directly observe the witnesses and to assess their demeanor and credibility.” ’ Ex parte T.V., 971 So. 2d 1, 4 (Ala. 2007) (quoting Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001)). Therefore, a presumption of correctness attaches to a trial court's factual findings premised on ore tenus evidence. Ex parte J.E., 1 So. 3d 1002, 1008 (Ala. 2008).”
Bedard v. Bedard, 266 So. 3d 1113, 1123–24 (Ala. Civ. App. 2018).
In challenging the custody award, the husband contends that the trial court abused its discretion when it did not award the parties joint physical custody. In support of his assertion, the husband points out that it was undisputed that the children were doing well under the joint-custody arrangement the parties had been using before the entry of the judgment.
We first note that, in making an initial custody award, a trial court is not bound by a pendente lite custody arrangement, which is merely temporary in nature. Anderson v. Anderson, 199 So. 3d 66, 68 (Ala. Civ. App. 2015)(citing Ex parte Bland, 796 So. 2d 340, 343–44 (Ala. 2000)). In Vest v. Vest, 215 So. 3d 552 (Ala. Civ. App. 2016), the father of the children at issue in that case made arguments similar to those the husband has made in this case, asserting that
“the trial court was required to presume that a grant of joint physical custody was in the best interests of the child because, he asserts, the evidence favored joint physical custody, the pendente lite order provided for a shared-physical-custody arrangement, and the mutual assertions of counsel at the postjudgment hearing reflected that no evidence had been submitted to show that problems had occurred while the pendente lite order was in effect.”
215 So. 3d at 559. We held that none of those reasons triggered a presumption that joint physical custody was in the children's best interest.
Section 30-3-152, Ala. Code 1975, sets forth the factors to consider when making a custody determination. That statute provides, in pertinent part:
“(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:
“(1) The agreement or lack of agreement of the parents on joint custody.
“(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
“(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
“(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
“(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.”
In his complaint, the husband sought sole physical custody of the children. At trial, however, he testified that the joint-physical-custody arrangement was working well and that he would like to continue that arrangement. The wife did not agree to joint physical custody. The record indicates that the parties did not communicate at all, even regarding the children. It is unclear how the parties handled making arrangements concerning the children; however, the older child testified that he would convey information between the parties. As mentioned, the wife testified that she wanted the children to begin attending school in Decatur. The husband said that he believed the children should remain in school in Moulton. Given the animosity between the parties, the trial court could have believed that awarding the wife custody of the children would foreclose a dispute regarding where the children would attend school.
Furthermore, although the husband denied abusing the wife in any way, the trial court was free to believe the wife's testimony that the husband had been both emotionally and physically abusive toward her. Additional evidence indicated that the husband had a history of abusive behavior toward women. During the previous divorce action, the wife said, the husband had threatened to take the older child and leave the wife, telling her he had the money and the means to do so. The trial court also reasonably could have considered the younger child's kidney condition when deciding how to award custody. During the trial, the trial court commented on the wife's ability to take care of the younger child, noting her work at a kidney dialysis center. The evidence also indicated that the husband believed the younger child had kidney stones, even though he had been told of the actual diagnosis. The trial court could have determined that the wife, who was a nurse, was in a better position to care for the younger child and awarded custody accordingly. We also note the younger child's expressed desire to live with the wife.
Based on the record before us, we cannot say that the trial court abused its discretion in awarding the wife sole physical custody of the children rather than awarding the parties joint physical custody. We find no basis for reversal as to this issue.
The husband also contends that the trial court abused its discretion in awarding monthly child support in the amount of $894.52. Specifically, the husband argues that the evidence does not support the trial court's decision to impute monthly income in the amount of $5,000 to the husband. He contends that basing his income on his accumulated assets did not account for the debt remaining on those assets.1 The husband also argues that the trial court did not include a completed CS-42 child-support-guidelines form showing the figures it used to calculate the husband's child-support obligation, as required by Rule 32, Ala. R. Jud. Admin.
“ ‘A noncustodial parent's child-support obligation is governed by the mandatory application of Rule 32, Ala. R. Jud. Admin.; Smith v. Smith, 587 So. 2d 1217 (Ala. Civ. App. 1991). Rule 32(E), Ala. R. Jud. Admin., states that “[a] standardized Child Support Guidelines form and a Child Support Obligation Income Statement/Affidavit form shall be filed in each action to establish or modify child support obligations and [that those forms] shall be of record and shall be deemed to be incorporated by reference in the court's child support order.” ․ The filing of the child-support-guidelines forms required under Rule 32(E) is mandatory. Martin v. Martin, 637 So. 2d 901 (Ala. Civ. App. 1994). This court has consistently held that the failure to file the required child-support-guidelines forms in compliance with Rule 32(E) where child support is made an issue on appeal is reversible error. Holley v. Holley, 829 So. 2d 759 (Ala. Civ. App. 2002); Gordon v. Gordon, 804 So. 2d 241 (Ala. Civ. App. 2001); and Martin v. Martin, supra.’ ”
Morrow v. Dillard, 257 So. 3d 316, 325–26 (Ala. Civ. App. 2017) (quoting Wilkerson v. Waldrop, 895 So. 2d 347, 348–49 (Ala. Civ. App. 2004))(emphasis omitted).
We note that this court may affirm a child-support award if the forms required by Rule 32 are not contained in the record but this court is still able to determine, from the evidence in the record, how the trial court reached its child-support calculation. Hayes v. Hayes, 949 So. 2d 150, 154–55 (Ala. Civ. App. 2006). In reviewing the propriety of the child-support award to the wife in this case, this court cannot discern from the record how the trial court reached its determination that the husband's obligation was to be $894.52 each month. The appellate briefs of the parties also fail to provide us with guidance as to how that figure was reached. Because the record does not contain a CS–42 form setting forth the method by which the trial court determined child support, this court is unable to adequately review the husband's argument on appeal. Accordingly, we reverse the judgment as to this issue and remand the case for the trial court to enter a child-support judgment that complies with Rule 32, Ala. R. Jud. Admin. C.M.M. v. S.F., 975 So. 2d 975, 982 (Ala. Civ. App. 2007); see also Farquhar v. Farquhar, 190 So. 3d 524, 525–26 (Ala. Civ. App. 2015).
The husband contends that the trial court abused its discretion in finding that the postnuptial agreement was invalid. The wife challenged the validity of that agreement on the ground that she was coerced into executing it.
The record indicates that the postnuptial agreement was executed during the trial of the previous divorce action. The wife testified that, while that action was pending, she and the husband were separated for 18 months. The younger child had not yet been born. The wife said that the husband told her they needed to reconcile for the sake of the older child and talked her into moving back into the marital residence. Upon her return, the wife said, the husband would not allow her to see or to contact her family. The wife testified that the husband told her she had him and did not need her family. One evening after dinner, the wife said, the husband told her that if she wanted to continue to live in the marital residence and to see the older child, she would have to sign a document. According to the wife, the husband told her that she could not go back to her family and that, if she did not sign the document, she would be homeless and, thus, an unfit mother and he would have the older child. The wife said that the husband had also told her that he had the means and the money to take the older child and “run.”
The wife said that the husband did not have a copy of the agreement he wanted her to sign with him the night he told her she had to sign it. She testified that, the next day, the husband took her to an attorney's office. That attorney was not representing either party in the previous divorce action. The wife said that the husband stayed in the car while she went inside to sign the agreement. She said that she did not see the attorney who drafted the document and that she did not read the document before she signed it before a notary. The wife also said that she did not have time to seek independent legal advice before signing the agreement.
The husband disputed the wife's testimony. He said that, together, they discussed a postnuptial agreement, and he denied that the wife was under duress when she signed the agreement. We note that both parties signed the agreement, which was admitted into evidence.
In the judgment, the trial court made the following factual findings regarding the postnuptial agreement:
“The parties executed a post-nuptial agreement after approximately five (5) years of marriage on May 10, 2011. Said document was executed during a time in which the parties were involved in a prior, heated, contested divorce action. The [wife] had no input as to the contents of the document, and she was not afforded the opportunity to meet with the attorney who drafted the document. The [wife] did not have the opportunity to seek independent legal advice from counsel of her choosing. Moreover, the Court notes that at the time this document was executed the parties had ongoing criminal actions that had been instituted against each other for abuse, harassment, and domestic violence. As a result, the Court finds that the agreement was not freely and voluntarily entered into and, further, was not fair and equitable as it applies to the [wife]. Therefore, the Court declares the agreement to be invalid.”
In his appellate brief, the husband contends that the wife's testimony was not true and that the trial court's determination that the prenuptial agreement was invalid was not supported by the evidence.
“[P]renuptial and postnuptial agreements are valid in Alabama. Ala. Code 1975, §§ 30–4–9, 43–8–72; Ruzic v. Ruzic, 549 So. 2d 72 (Ala. 1989); Woolwine v. Woolwine, 519 So. 2d 1347 (Ala. Civ. App. 1987); Barnhill v. Barnhill, 386 So. 2d 749 (Ala. Civ. App. 1980)[,] cert. denied, 386 So. 2d 752 (Ala. 1980); and Campbell v. Campbell, 371 So. 2d 55 (Ala. Civ. App. 1979). However, courts scrutinize such agreements to determine whether they are just and reasonable. Woolwine; Barnhill; Hall v. Cosby, 288 Ala. 191, 258 So. 2d 897 (1972); and Hamilton v. Hamilton, 255 Ala. 284, 51 So. 2d 13 (1951).”
Tibbs v. Anderson, 580 So. 2d 1337, 1339 (Ala. 1991). “Prenuptial and postnuptial agreements are scrutinized by the same standards.” Nelson v. Estate of Nelson, 53 So. 3d 922, 927 (Ala. Civ. App. 2010). Moreover, “[i]n a case in which the evidence is presented to the trial court ore tenus, such as this one, the findings of the trial court are presumed correct and will not be set aside unless they are plainly and palpably wrong or unjust.” Tibbs, 580 So. 2d at 1339.
In Barnhill v. Barnhill, 386 So. 2d 749 (Ala. Civ. App. 1980), this court required the party seeking to enforce an agreement –- in that case, a husband seeking to enforce a prenuptial agreement –- to show that the entire transaction was fair, just, and equitable from the wife's point of view or that the agreement had been freely and voluntarily entered into by the wife, with competent independent advice and with full knowledge of her interest in the estate and its approximate value. Id. at 751. “Meeting the requirements of either of the above tests is sufficient to give effect to an antenuptial agreement.” Id.
In Mayer v. Mayer, 628 So. 2d 744, 745–46 (Ala. Civ. App. 1993), this court affirmed the trial court's decision to disregard a postnuptial agreement when it divided the marital assets in that case. In doing so, this court observed that the record showed “that the written affirmation of that alleged antenuptial agreement was not put in writing or signed until after twelve years of marriage, fraught with arguments, threats, deceit, depression, and unhappiness, had passed between the parties.” Id. at 745. Additionally, this court took note of the fact that the record also disclosed that the agreement was signed after “an intense argument between them on New Year's Eve.” Id. at 746. We continued:
“The husband testified that his signature on the document was an attempt at reconciliation. We are not convinced that the agreement was fair and just from the husband's point of view, nor is there any evidence that the husband freely and voluntarily entered into the agreement with independent legal advice.”
In this case, the trial court heard contradictory evidence regarding the circumstances surrounding the execution of the agreement. The wife presented evidence indicating that she signed the postnuptial agreement during the course of a heated divorce action. During the previous divorce action, both parties had sought criminal charges against the other. The wife testified that she signed the postnuptial agreement because the husband had isolated her from her family and had then threatened to leave her without a place to live and to take custody of the older child unless she signed it. The wife also presented evidence indicating that she was not given the opportunity to talk with the attorney who drafted the agreement at the husband's request and that she was not given the opportunity to have her own attorney review the agreement before she signed it.
Although the husband denied the wife's version of events, it is the trial court's duty to reconcile conflicts in the evidence. Caseco, LLC v. Dingman, 65 So. 3d 909, 925 (Ala. Civ. App. 2010); Hornaday Transp., LLC v. Fluellen, 116 So. 3d 236, 246 (Ala. Civ. App. 2012). The trial court clearly believed the wife's testimony over that of the husband. Based on the record before us, we conclude that the husband failed to meet his burden of demonstrating that the wife voluntarily and freely entered into the postnuptial agreement. Sufficient evidence supports the trial court's findings and its determination that the postnuptial agreement was invalid, and we cannot say that those findings are plainly and palpably wrong. Accordingly, we will not reverse the judgment as to this issue.
Finally, the husband argues that, even if the postnuptial agreement is invalid, the trial court abused its discretion in dividing the marital property.
“ ‘In reviewing a trial court's judgment in a divorce case where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court's judgment based on those findings will be presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So. 2d 323 (Ala. Civ. App. 1993). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So. 2d 1064 (Ala. Civ. App. 1995). Furthermore, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Golden v. Golden, 681 So. 2d 605 (Ala. Civ. App. 1996). In addition, the trial court can consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility. Ex parte Drummond, 785 So. 2d 358 (Ala. 2000). Moreover, in Kluever v. Kluever, 656 So. 2d 887 (Ala. Civ. App. 1995), this court stated, “[a]lthough this court is not permitted to substitute its judgment for that of the trial court, this court is permitted to review and revise the trial court's judgment upon an abuse of discretion.” Id. at 889.'
“Langley v. Langley, 895 So. 2d 971, 973 (Ala. Civ. App. 2003). ‘Trial judges enjoy broad discretion in divorce cases, and their decisions are to be overturned on appeal only when they are “unsupported by the evidence or [are] otherwise palpably wrong.” ’ Ex parte Bland, 796 So. 2d 340, 344 (Ala. 2000) (quoting Ex parte Jackson, 567 So. 2d 867, 868 (Ala. 1990)).”
Cottom v. Cottom, 275 So. 3d 1158, 1163 (Ala. Civ. App. 2018).
The husband argues that there was no evidence in the record regarding the amount of equity the parties had in the real property or the personal property awarded to the husband. Therefore, he says, there was no evidence to support the trial court's decision to award the wife a total of $250,000 for her share of the parties' interest in that property.
The husband was awarded seven parcels of real property. The wife submitted documents from the Lawrence County tax assessor's office indicating that the total value of the seven parcels was $1,042,270. In its judgment, the trial court ordered the husband to pay the wife $210,000, “representing a one-fifth (1/5) equity share” in all of the real property. Neither party submitted evidence of any debt existing on the real property.
The wife also submitted into evidence a list of the parties' 19 vehicles, including boats, Jet Skis, and a motor home. She testified that the husband had paid cash for some of the vehicles, including the motor home. The wife estimated that the value of that property was approximately $237,590. The trial court awarded the husband 16 of the 19 vehicles and ordered him to pay the wife $40,000 for her “equitable interest” in those 16 vehicles. We note that $40,000 is less than one-fifth of the total value of all of the vehicles. Again, neither party presented evidence of the debt, if any, existing on those vehicles.
If the husband desired to challenge the values the wife presented regarding the real and the personal property, he could have done so at trial. The trial court's division of property was based on the evidence presented. Any consideration of possible debt on the property would have been simply conjecture on the trial court's part. We cannot say that the trial court's division of property without consideration of possible debt on that property constituted an abuse of discretion.
The husband also contends that the trial court improperly awarded the wife money for property in which she had no interest, including the husband's businesses. The judgment does not support the husband's assertion. In the judgment, the trial court awarded the husband “all right, title, and interest” to the collision center and the tire shop. As to the other property, even if the wife had denied an interest in certain marital property in a prior bankruptcy proceeding, as the husband asserts, the husband cites no authority and makes no legal argument to support his contention that the wife was not entitled to a share of that property in this divorce action. “Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived.” White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008). Accordingly, we need not consider this issue. Based on the record before us and the arguments set forth by the husband, we conclude that the trial court's division of the marital property is due to be affirmed.
For the reasons set forth above, that portion of the judgment establishing the husband's child-support obligation is reversed. The cause is remanded for the trial court to have the requisite forms completed and to calculate the husband's child-support obligation accordingly. The remainder of the judgment is affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
1. Although the husband mentions that the trial court did not admit evidence regarding that debt, he does not argue that the trial court's ruling constituted reversible error. Any issues not argued in brief are deemed to be waived. Edosomwan v. A.B.C. Daycare & Kindergarten, Inc., 32 So. 3d 591, 593 (Ala. Civ. App. 2009).
THOMPSON, Presiding Judge.
Moore, Donaldson, Edwards, and Hanson, JJ., concur.
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Docket No: 2190133
Decided: June 19, 2020
Court: Court of Civil Appeals of Alabama.
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