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Cowperthwait v. Cowperthwait

Alabama Court of Civil Appeals

January 6, 2017

Michael T. Cowperthwait
v.
Carrie Ann Cowperthwait

         Appeal from Madison Circuit Court (DR-14-900868)

         On Application for Rehearing

          MOORE, JUDGE.

         This court's opinion issued on October 21, 2016, is withdrawn, and the following is substituted therefor.

         Michael T. Cowperthwait ("the husband") appeals from a judgment entered by the Madison Circuit Court ("the trial court") divorcing him from Carrie Ann Cowperthwait ("the wife") to the extent that it divided the parties' property, awarded the wife alimony, and awarded the wife sole physical custody of the parties' children. We affirm the trial court's judgment in part and reverse it in part.

         Procedural History

         On October 9, 2014, the husband filed a complaint seeking a divorce from the wife. On October 22, 2014, the wife answered the complaint and counterclaimed for a divorce. The husband filed a reply to the counterclaim on October 23, 2014.

         On September 9, 2015, the parties entered into a stipulation of partial settlement providing for the division of several of the parties' retirement accounts. After a trial, the trial court entered a judgment on September 15, 2015, that, among other things, divorced the parties, awarded the wife sole physical custody of the parties' two children; ordered the husband to pay monthly child support in the amount of $1, 398; ordered the husband to pay monthly alimony in the amount of $1, 000 for 104 months; divided the proceeds from the sale of the marital home and a boat equally between the parties; divided the parties' joint bank accounts equally between the parties; divided the parties' retirement accounts as set forth in the parties' joint stipulation; ordered the husband to pay the balance owed on the parties' joint USAA MasterCard credit-card account; ordered each party to pay the debts in his or her individual name; divided the parties' personal property; and ordered the husband to pay $10, 000 to the wife to "to equalize the division of personal property."

         On October 14, 2015, the husband filed a postjudgment motion. That motion was denied on November 6, 2015. On December 11, 2015, the husband filed his notice of appeal to this court.

         Discussion

         A.

         On appeal, the husband first argues that the trial court erred in its division of the marital property and in its award of alimony to the wife.

"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 (Ala. Civ. App. 1995)."

Zinnerman v. Zinnerman, 803 So.2d 569, 572 (Ala. Civ. App. 2001).

         With regard to the property division, the husband specifically argues that the trial court erred in ordering him to pay the debt on his Best Buy credit-card account and on the parties' joint USAA MasterCard credit-card account. The evidence in the record shows that, after the parties separated, the wife purchased several appliances as an authorized user on the husband's Best Buy credit-card account, leaving a balance of $1, 476.76. The judgment provides that, unless specifically stated otherwise, the wife shall pay any debt she has incurred regardless of whether that debt was incurred in her name or "in the joint names of parties hereto." The judgment does not specify that the husband must pay the Best Buy ...


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