Michael T. Cowperthwait
Carrie Ann Cowperthwait
from Madison Circuit Court (DR-14-900868)
Application for Rehearing
court's opinion issued on October 21, 2016, is withdrawn,
and the following is substituted therefor.
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.
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.
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."
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.
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.
Zinnerman v. Zinnerman, 803 So.2d 569, 572 (Ala.
Civ. App. 2001).
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 ...