July 10, 2015
Anthony Scott House
Lee Ann House; Lee Ann House
Anthony Scott House
Appeals from Monroe Circuit Court. (DR-12-900053).
Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ.,
Scott House (" the husband" ) appeals and Lee Ann
House (" the wife" ) cross-appeals from a divorce
judgment of the Monroe Circuit Court (" the trial
court" ) entered following a trial. The judgment ordered
the husband to pay the wife alimony in gross. The husband
filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ.
P., seeking to alter, amend, or vacate the judgment or to
" hold a new trial or hear additional evidence." In
the motion, the husband argued that the evidence presented at
trial did not establish that the husband's estate at the
time of the divorce was sufficient to pay the awarded amount
of alimony in gross. The husband requested a hearing on the
motion; however, the motion was denied without a hearing. In
her cross-appeal, the wife asserts that the trial court
should have awarded periodic alimony to her. Because the
husband's Rule 59 motion appears to be meritorious, the
husband was entitled to be heard on his motion. Accordingly,
we reverse the trial court's order denying the
husband's Rule 59 motion and remand the case to the trial
court for it to hold a hearing on the motion and to determine
the appropriate relief to be granted. Because the wife did
not request periodic alimony in the trial court or present
sufficient arguments on appeal as to why the failure to award
periodic alimony on this record is reversible, we affirm the
divorce judgment insofar as it does not include an award of
periodic alimony to the wife, which is the only issue the
wife raises in her cross-appeal.
and Procedural History
wife and the husband were married on August 14, 1999. At the
time of the divorce, the husband was 38 years old and the
wife was 37. They have three minor children who were born in
2003, 2007, and 2010, respectively. At the time of the
marriage, the husband was in college and the wife worked as
an elementary-school teacher. The husband graduated from
college in 2000 with a degree in chemical engineering and
worked as an engineer from 2000-2006. In June 2006, the wife
obtained a master's degree in education.
couple lived together in the marital residence in Monroe
County. After several years of marriage, the husband decided
he wanted to become a physician, and he was accepted to
medical school in Mobile. In August 2006, the husband left
the marital residence and moved to Mobile to begin attending
medical school. The husband graduated medical school in 2010
and completed his medical residency in Mobile. The wife and
the children remained in Monroe County while the husband was
in medical school and while he completed his medical
2012, the husband learned that the wife was having an affair.
The husband subsequently became involved in a romantic
relationship with someone else.
September 4, 2012, the wife filed a complaint for a divorce
in the trial court. On December 18, 2012, the trial court
entered a temporary order incorporating an agreement between
the parties providing for joint legal custody of the children
but placing physical custody with the wife and granting
visitation to the husband. Pursuant to the agreement and the
temporary order, the husband was responsible for paying child
support in the amount of $1,050 a month.
was held on December 12, 2013. The wife testified that the
husband had returned to the marital home twice a month when
he had attended medical school but that he had not returned
often during his residency. While the husband had lived in
Mobile, the wife had cared for the children, had managed the
household, and had paid the mortgage payments for the marital
residence. She testified to having had financial difficulties
in maintaining the expenses of the marital home and in
raising the children.
completing his residency in 2013, the husband moved back to
Monroe County, where he began working as a medical doctor. At
trial, the husband was earning approximately $78,000
annually. The wife worked as an assistant principal for an
elementary school, earning $55,492 a year.
marital home is a house built in 2005 on land the parties
received as a gift from the wife's parents. The
construction cost was $85,000. The husband contributed
$17,000 for a down payment on the marital home, which he
obtained by depleting all the funds in his retirement
account. Evidence presented at trial valued the marital home
at $135,000. The balance of the mortgage at the time of the
final hearing was $58,286. The wife testified that the equity
in the property was approximately $76,700. The husband
testified that the value of the contents of the house was
$5,000. The wife testified that the value of the contents was
time of the final hearing, the husband drove a 2011 Toyota
Tundra with a value of $26,000 and debt of $26,000. The wife
drove a 2004 Ford Expedition worth $5,000. The wife had a
retirement account valued at $1,965.74 on August 1, 1999, and
another account valued at $43,020.59 on December 5, 2013, and
$36,010 on July 1, 2012. The wife also had a third retirement
account valued at $28,963. The husband owned a whole-life
insurance policy with a cash value of $4,000 and a term-life
insurance policy on his own life with a death benefit of
$352,000. The wife had a whole-life insurance policy with a
cash value of $4,000 and a term-life insurance policy on her
own life with a death benefit of $437,000.
balance on the husband's student loans the husband had
obtained to attend medical school totaled $181,005. The
husband also had received $120,000 in a forgivable loan from
the Rural Health Foundation. The husband testified that the
$120,000 loan will be forgiven if he practices medicine in a
rural area for a certain amount of time, which was not
specified in the record. The wife had a balance on her
student-loan debt of $2,500 and a credit-card balance of
March 21, 2014, the trial court entered a judgment divorcing
the parties. The judgment incorporated an agreement between
the parties maintaining joint legal custody of the children,
physical custody of the children with the wife, and
visitation for the husband. The husband's child-support
obligation was established at $1,230 a month, and the parties
were ordered to split the cost of the youngest child's
preschool education. The trial court also made the following
findings of fact:
" 2. The Court finds from the evidence, at the time the
[husband] left his job as an engineer to attend medical
school his annual gross earnings were approximately $50,000
and [the wife's] annual gross earnings were $40,000. Each
party was each contributing to the household, for a total
gross household income of $90,000, with the [husband]
contributing 56% of the household income. The [husband]'s
contribution of $50,000 terminated upon his entering medical
school. Even though the [husband] contributed some income to
the household expenses, it was drastically reduced from the
amount he contributed at the time that he left his job,
however, the household expenses and cost of living did not
" 3. The Court finds that the [husband] financed the
cost of his medical school and living expenses through
student loans and scholarships from the Rural Health
Foundation, totaling over $120,000.00. The [husband]
currently has outstanding debt owed on student loans in the
amount of $181,005.05, which he is paying back at the rate of
$1,174.00 per month.
" 4. The Court finds from the evidence, at the time of
the marriage, the [wife] had a college degree and was
working as a teacher in the Monroe County School System. The
[husband] was still in school, in the process of finishing
his degree in engineering. The [husband] finally graduated
and obtained employment as an engineer with Honeywell. The
[husband] worked out of the home. The parties lived and
resided in Monroe County, Alabama.
" 5. The Court finds from the evidence, after several
years as an engineer, the [husband] decided to return to
school and pursue a medical degree, which he has successfully
completed and is currently working in Monroe County as a
" 6. The Court finds from the evidence, the [wife]
continued to work outside the home in her field as an
educator in Monroe County, Alabama, and through her hard work
she rose to the level of Assistant Principal at the Excel
Elementary School in Monroe County, Alabama, where she is
" 7. The Court further finds from the evidence, the
parties had one child at the time, the [husband] chose to
leave his career as an engineer and attend medical school.
Two more children were born to the parties while he was in
medical school. All three children resided in the marital
home with the [wife] while the [husband] attended medical
school and did his residency over a period of seven and a
" 8. The Court further finds from the evidence, the
employment income of the [wife] during said seven and a half
years was used to support the [wife], the minor children and
the expenses of operating a household. The Court further
finds the [husband] had income he received from student loans
and scholarships through the Rural Health [Foundation]
[w]hich paid for his education and maintained the [husband].
" 9. The Court further finds from the evidence, there is
a dispute between the
parties as to whether or not the [husband] contributed to the
household expenses during the four years of medical school
and the three and a half years of residency. Further, there
is a dispute as to the amount of income contributed by the
[husband] to the household expenses during his four years of
medical school and three years of residency.
" 10. The Court further finds from the evidence, the
documentation, the testimony of the [wife], the testimony of
the [husband]'s mother, and the testimony of the
wife's father, the majority of the burden of the
household and maintaining the marital home, fell to the
[wife] during the seven and a half years of medical school
" 11. The Court finds that the burden of raising the
children during the seven and a half years of medical school
and residency fell to the [wife] based upon the testimony
presented at court.
" 12. The Court finds from the evidence, the breakdown
in the marital relationship occurred during the period of
time the [husband] was in medical school and doing his
residency and was brought on by the stress on both parties of
maintaining a home, pursuing a successful completion of
medical school and residency, and rearing three children. As
a result of the combination of these things, the parties
reached a point where their relationship was irreconcilable
and they became incompatible.
" 13. The Court finds from the evidence, the parties
received a gift of real estate from the [wife's] parents
whereupon they built the marital home which they resided in
up until the parties separated on July 1, 2012. The Court
finds from the [husband]'s testimony he claims no
interest in the marital home and is willing for the [wife] to
receive the marital home and land upon which it is located.
There is a debt owed on the martial home and the Court
further finds the [wife] paid the monthly mortgage payments
on the marital home during the seven and a half years the
[husband] was in medical school and residency.
" 14. The testimony and documents presented at Court
support the [wife]'s contention, the [husband] credited
her actions as allowing him to pursue his medical education
and career. The Court finds this to be true from the
testimony offered, as well as the newspaper article presented
by the [wife] which directly quotes the [husband], which the
[husband] did not deny.
" 15. The Court further finds from the evidence, the
[husband]'s income increased in August when he became
employed as a physician. ...
" 16. The Court finds from the evidence, the [husband]
was able to pursue his medical degree and career. Based on
[the wife]'s sacrifices, it has enabled him to obtain
employment at a much higher rate of income than he previously
had and the potential for that income to increase is
the assets of the parties, the trial court ordered the
" 26. The [wife] is awarded all right, title and
interest in and to the marital home and the real estate upon
which it is located. The [wife] is further ordered to assume
the indebtedness owed thereon and indemnify and hold the
[husband] harmless therefrom. ...
" 27. The [wife] is awarded all right, title and
interest in and to the contents of the marital home.
" 28. Each party is awarded all right, title and
interest in and to the automobile which he or she has
possession of, and if any indebtedness owed thereon, the
party receiving said vehicle shall assume the said
indebtedness and shall
indemnify and hold the other party harmless therefrom.
" 29. The Court awards alimony in gross to the [wife] in
the amount of $120,000.00. Said amount to be paid to her in
ten annual installments, of Twelve Thousand ($12,000.00)
dollars, with the first installment due and payable on
September 1, 2014, which is the anniversary of his employment
as a medical doctor, with the last payment being due and
payable on September 1, 2024."
addition, the trial court ordered the parties to maintain
their term-life insurance policies with the children named as
irrevocable beneficiaries. The judgment did not divide or
reallocate the parties' whole-life insurance policies,
the wife's retirement accounts, or the wife's
student-loan and credit-card debt.
April 4, 2014, the husband filed a postjudgment motion
pursuant to Rule 59, Ala. R. Civ. P., seeking to alter,
amend, or vacate the judgment or asking the trial court to
" hold a new trial or hear additional evidence."
Among other arguments, the husband argued that the award of
alimony in gross in the amount of $120,000 was inequitable
given the financial circumstances of the parties and that he
had agreed to give up any interest in the marital home to the
wife in lieu of any additional financial obligations to her.
The husband requested a hearing on the motion; however, on
April 22, 2014, the trial court entered an order denying the
husband's postjudgment motion without holding a hearing.
On May 9, 2014, the husband filed a timely notice of appeal
with this court. On May 22, 2014, the wife filed a timely
cross-appeal. See Rule 4(a), Ala. R. App. P.
" In reviewing a judgment of the trial court 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 to be 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). This presumption of correctness is based
on the trial court's unique position to observe the
witnesses and to assess their demeanor and credibility.
Hall v. Mazzone, 486 So.2d 408 (Ala. 1986).
Additionally, matters of alimony and property division rest
soundly within the trial court's discretion, and rulings
on those matters will not be disturbed on appeal except for a
plain and palpable abuse of discretion. Welch v.
Welch, 636 So.2d 464 (Ala.Civ.App. 1994). 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
v. Zinnerman, 803 So.2d 569, 572 (Ala.Civ.App. 2001).
Generally, when a party requests a hearing on a postjudgment
motion [filed pursuant to Rule 59], the court must grant that
request." Mobile Cnty. Dep't of Human Res. v.
C.S., 89 So.3d 780, 784 (Ala.Civ.App. 2012). Rule 59(g),
Ala. R. Civ. P., provides that a postjudgment motion "
shall not be ruled upon until the parties have had
opportunity to be heard thereon." We have also held
" [a]lthough it is error for the trial court not to
grant such a hearing, this error is not necessarily
reversible error. For example, if an appellate court
determines that there was no probable merit to the motion, it
may affirm based on the harmless-error rule. See Rule 45,
Ala. R. App. P.; and Kitchens v. Maye,
623 So.2d 1082, 1088 (Ala. 1993) ('failure to grant a
hearing on a motion for new trial pursuant to Rule 59(g) is
reversible error only if it " probably injuriously
affected substantial rights of the parties"
Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.
" '" Harmless error occurs, within the context
of a Rule 59(g) motion, where there is either no probable
merit in the grounds asserted in the motion, or where the
appellate court resolves the issues presented therein, as a
matter of law, adversely to the movant, by application of the
same objective standard of review as that applied in the
trial court." '"
DWOC, LLC v. TRX Alliance, Inc., 99 So.3d 1233, 1236
(Ala.Civ.App. 2012) (quoting Kitchens v. Maye, 623
So.2d 1082, 1088-89 (Ala. 1993), quoting in turn Greene
v. Thompson, 554 So.2d 376, 381 (Ala. 1989)).
postjudgment motion, the husband argued that the award of
alimony in gross was not supported by the parties'
financial conditions established by the evidence presented at
the trial. " 'Alimony in gross' is the present
value of the [recipient spouse's] inchoate marital
rights--dower, homestead, quarantine, and distributive
share." Hager v. Hager, 293 Ala. 47, 55, 299
So.2d 743, 750 (1974). " Alimony in gross is considered
'compensation for the [recipient spouse's] inchoate
marital rights [and] ... may also represent a division of the
fruits of the marriage where liquidation of a couple's
jointly owned assets is not practicable.'"
TenEyck v. TenEyck, 885 So.2d 146, 151 (Ala.Civ.App.
2003) (quoting Hager, 293 Ala. at 54, 299 So.2d at
749). " It is payable out of the [payor spouse's]
present estate as it exists at the time of divorce."
Hager, 293 Ala. at 55, 299 So.2d at 750 (citing
Borton v. Borton, 230 Ala. 630, 162 So. 529 (1935)).
evidence presented to the trial court showed the
husband's primary assets to be his interest in the equity
of the marital home, the $4,000 cash value of his whole life
insurance policy, and his vehicle. The wife was awarded the
equity in the marital home, and there was no equity in the
husband's vehicle. The trial court found that the husband
had $181,005.05 in student-loan debt, and the husband
testified to having a car-loan debt of $26,000. In sum, there
was no evidence of an existing estate from which the husband
could pay $120,000 in alimony in gross to the wife.
brief to this court, the wife submits that the husband's
medical degree was a marital asset worth a substantial amount
of money in future value. As noted by the husband, there is
no evidence in the record to support that assertion, and the
wife cites no cases in support of the assertion. Moreover,
" alimony in gross is a form of property
settlement," TenEyck, 885 So.2d at 152 (citing
Hager, 293 Ala. at 54, 299 So.2d at 749), and, under current
law, " 'a professional degree acquired by one spouse
is not considered a marital asset for purposes of property
division.'" Lackey v. Lackey, 18 So.3d 393,
403 (Ala.Civ.App. 2009) (quoting Pickett v. Pickett,
723 So.2d 71, 74 (Ala.Civ.App. 1998) (plurality opinion), and
citing Jones v. Jones, 454 So.2d 1006, 1009
(Ala.Civ.App. 1984)). " [A]n award of alimony in gross
must be made based on the value of the marital estate and the
parties' separate estates and not on the anticipated
future earnings of the payor." Ex parte
Dickson, 29 So.3d 159, 162 (Ala. 2009).
such, the award of $120,000 in alimony in gross is
unsupported by the evidence presented at trial. Accordingly,
we hold that the husband's postjudgment motion had
probable merit and that the
failure to conduct a hearing on the motion was reversible
cross-appeal, the wife contends for the first time that the
trial court erred in failing to award periodic alimony to
her. As noted by the husband, the wife did not request that
she be awarded periodic alimony by the trial court.
" It is well settled that an appellate court may not
hold a trial court in error in regard to theories or issues
not presented to that court. Smith v. Equifax Servs.,
Inc., 537 So.2d 463 (Ala. 1988); Boshell v.
Keith, 418 So.2d 89 (Ala. 1982). An issue may not be
raised for the first time on appeal. Andrews v. Merritt
Oil Co., 612 So.2d 409 (Ala. 1992)."
Allsopp v. Bolding, 86 So.3d 952, 962-63 (Ala.
2011). Further, the wife does not argue that the issue was
tried by the express or implied consent of the parties, nor
would the record support such an assertion. See, e.g.,
Lacy v. Lacy, 403 So.2d 251 (Ala.Civ.App. 1981)
(holding that the issue whether to award alimony in gross
could be tried by express or implied consent). We note that,
at trial, the wife's counsel asked the husband:
" Now, you are aware, are you not, that [the wife] is
asking for compensation in the form of a property settlement,
alimony gross for the period of time that she and those
children survived off of her income and whatever you
contributed from the middle of 2006 to the point in time that
you finished school?"
wife does not argue that the trial court erred in failing to
reserve the issue of periodic alimony, does not cite any
authority in support of her request--asserted for the first
time on appeal--for periodic alimony, and does not cite any
evidence in the record from which an award of periodic
alimony could be based.
" It is the appellant's burden to refer [an
appellate court] to legal authority that supports its
argument. Rule 28(a)(10), Ala. R. App. P., requires that the
argument in an appellant's brief include 'citations
to the cases, statutes, [and] other authorities ... relied
on.' Consistent with Rule 28, '[w]e have stated that
it is not the function of [an appellate] court to do a
party's legal research.' Spradlin v.
Spradlin, 601 So.2d 76, 78 (Ala. 1992) (citing
Henderson v. Alabama A & M University, 483 So.2d
392, 392 (Ala. 1986) ('" Where an appellant fails to
cite any authority, we may affirm, for it is neither our duty
nor function to perform all the legal research for an
appellant." Gibson v. Nix, 460 So.2d 1346, 1347
Board of Water & Sewer Comm'rs of the City of Mobile
v. Bill Harbert Constr. Co., 27 So.3d 1223, 1254 (Ala.
2009). There is no reversible error presented in this record
regarding the failure to award periodic alimony, and,
therefore, there is no basis to reverse the judgment based on
the issue raised in the wife's cross-appeal.
note that the wife's alternative argument in support of
the $120,000 award to her is that the trial court mislabeled
the alimony award as " alimony in gross" rather
than " periodic alimony." There are no facts or
legal authority presented to support her assertion. See
Asam v. Devereaux, 686 So.2d 1222, 1224
(Ala.Civ.App. 1996) (" This court will address only
those issues properly presented and for which supporting
authority has been cited." ), and White Sands Grp.,
L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008)
(" 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." ). Furthermore,
the wife failed to present this argument to the trial court.
Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.
1992) (" This Court cannot consider arguments
raised for the first time on appeal; rather, our review is
restricted to the evidence and arguments considered by the
trial court." ). Therefore, this argument cannot form a
basis to support the $120,000 award.
we find the husband's argument that the award of alimony
in gross was unsupported by the evidence to be meritorious,
we reverse the order denying the husband's postjudgment
motion. We affirm the divorce judgment insofar as it did not
contain an award of periodic alimony to the wife. We remand
the cause to the trial court to conduct a hearing on the
husband's postjudgment motion and for further proceedings
consistent with this opinion.
AND REMANDED WITH INSTRUCTIONS.
P.J., and Pittman, Thomas, and Moore, JJ., concur.