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Cowart v. Cowart

Alabama Court of Civil Appeals

November 30, 2018

Zachariah Cowart
v.
Misty Cowart

          Appeal from Mobile Circuit Court (DR-15-900031)

          THOMAS, JUDGE.

         Zachariah Cowart ("the husband") appeals from a judgment of the Mobile Circuit Court ("the trial court") that, among other things, divorced him from Misty Cowart ("the wife"), divided the marital property, ordered the husband to pay for certain medical bills, and awarded the wife child support. We affirm the trial court's judgment in part, reverse it in part, and remand the cause for further proceedings.

         Background

         The parties were married in 2011. In January 2015, the wife filed a verified complaint in the trial court seeking a divorce from the husband. In her complaint, the wife averred that the husband had adopted her son ("the child"), who was born in 2002; she requested an award of the child's custody and an award of child support. The wife also averred that the husband had physically abused her and had committed adultery. The wife requested, among other things, an award of periodic alimony, an award of alimony in gross, and equitable divisions of the marital assets and debts. The wife's complaint also included specific requests regarding health insurance and life insurance.

         The record contains numerous filings and orders regarding, among other things, pendente lite relief, bankruptcy, [1] contempt, [2] discovery, and an order "transfer[ring]" a protection-from-abuse action that had been initiated by the husband to the divorce action.[3] A trial was conducted on September, 7, 2017. The trial court entered a judgment on September 18, 2017, that, in relevant part, awarded the wife "full physical and legal custody" of the child; ordered the husband to pay child support of $944 per month "as previously ordered by th[e trial] court," stating that the award "is in compliance with the guidelines of Rule 32, [Ala. R. Jud. Admin.]"; ordered the husband to pay the wife $11, 376.73 for "medical bills she ha[d] paid"; ordered the husband to pay her $11, 774.49 for other "outstanding medical bills"; and provided:

"19. THAT during the pendency of this trial the court was presented with the [husband]'s father's will and codicil to same, which indicated that a revocable trust had been set up for the benefit of the [husband]. Testimony indicates that the revocable trust was CZE, L.L.C., and said L.L.C. owns the twenty (20) acres that was originally supposed to be given to the [parties]. Additionally, the [husband] indicated that numerous items on the property list were owned by CZE, L.L.C. [The] Court finds throughout the marriage the real or personal property owned by CZE, L.L.C., w[as] used for the benefit of the marriage[;] therefore, [they] became marital assets upon the death of the [husband]'s father. Therefore, the Court has jurisdiction over CZE, L.L.C., and [the] alleged revocable trust.
"20. THAT Don Foster ... is hereby appointed commissioner to sell the property in the name of CZE, L.L.C., located at 4000 Wilmer Road, Wilmer, Alabama, in accordance with the laws of the State of Alabama for the best possible price, subject to the approval of the Court. ... After all liens, mortgages, encumbrances, and commission fees have been satisfied, the net proceeds derived therefrom shall be divided two-thirds to the [husband], less any outstanding judgments, and one-third to the [wife]. The [husband] shall have first right of refusal to purchase said property at the fair market value.
"21. THAT the manufactured home located at 4400 -A Wilmer Road, Wilmer, Alabama shall be sold and profits divided between the parties evenly."

         On September 25, 2017, the trial court entered an order amending a clerical error in its judgment that is not relevant to this appeal. The wife filed a postjudgment motion on September 29, 2017. The husband filed a postjudgment motion on October 18, 2017. The trial court conducted a postjudgment hearing on December 14, 2017, and, on December 18, 2017, entered an order denying the parties' postjudgment motions. The husband filed a notice of appeal to this court on January 24, 2017.

         Analysis

         We first consider the husband's argument regarding the real property addressed in the trial court's judgment. He argues that the trial court improperly awarded the wife proceeds from the sale of the property. Our review of the record indicates that two parcels of real property were at issue during the trial: a parcel located at 4400 Wilmer Road, which consisted of approximately 20 acres, and a parcel located at 4400-A Wilmer Road, which consisted of roughly 5 acres or less and contained a house that the parties had, before their separation, intended to become the marital residence. It appears that the reference in the trial court's judgment to 4000 Wilmer Road was a mistake because the record contains no evidence regarding a parcel located at that address; the parties have not addressed that discrepancy, however.

         The husband's argument is predicated primarily upon the language of § 30-2-51(a), Ala. Code 1975, which provides, in its entirety:

"If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage."

Specifically, the husband contends that at least a portion of the real property fell within his separate estate and that the trial court exceeded its discretion by awarding the wife a share of the proceeds from the sale of the property.

         Regarding the parcel of real property located at 4400 Wilmer Road, the exact nature of the husband's interest in the property is unclear. Certain portions of the testimony indicate that the property was being held in trust for the husband's benefit, and other portions of the testimony and record indicate that the real property was owned by an entity, CZE, LLC ("CZE"), of which the husband appears to be the sole owner. The trial court's judgment and statements made by the trial-court judge at the postjudgment hearing indicate that the trial court determined that the parcel was owned by CZE and that it was not part of a trust. Regarding the parcel of real property located at 4400-A Wilmer Road, the husband contends in his reply brief that "the bank" owns that property. He says: "The property is not owned by either of the parties, and therefore the [t]rial [c]ourt lacks jurisdiction to divide it."

         During the trial, the wife responded affirmatively when her attorney asked: "The Judge had ordered a commissioner appointed on October 6th, 2016[, ] to sell the house[, ] and the house was in bankruptcy -- the house was in foreclosure; is that correct?" The record contains an October 6, 2016, order of the trial court directing, in relevant part, that "the homeplace of the parties located at 4400A Wilmer Road" be sold. During the husband's testimony, he stated: "The house has been sold, it belongs to the bank." He also testified: "The bank owns the house, Community Bank"; he said that he was renting the house from the bank at the time of the trial.

"'The absence of an indispensable party is a jurisdictional defect that renders the proceeding void. See Gilbert v. Nicholson, 845 So.2d 785, 790 (Ala. 2002). Although no party to this appeal has raised the issue of indispensable parties, the absence of an indispensable party can be raised for the first time on appeal by the appellate court ex mero motu, even if the parties failed to present the issue to the trial court. Id.'
"Allbritton v. Dawkins, 19 So.3d 241');">19 So.3d 241, 243 (Ala. Civ. App. 2009)."

Chandler v. Branch Banking & Trust Co., [Ms. 2160999, Oct. 19, 2018] So. 3d, (Ala. Civ. App. 2018)(acknowledging also that the absence of an indispensable party does not impact the trial court's subject-matter jurisdiction).

         In this case, the record indicates that at least one party other than the parties to the divorce action possessed some interest in some portion of the real property addressed in the trial court's judgment. Insufficient evidence demonstrating the exact identity or identities of the absent party or parties is available; however, it appears undisputed that "the bank" -- most likely "Community Bank" -- has foreclosed upon the parcel located at 4400-A Wilmer Road and apparently "owns" that property. Evidence was also presented indicating that CZE or a trust possesses some interest in the parcel located at 4400 Wilmer Road. See id. at ("From our reading of Allbritton [v. Dawkins, 19 So.3d 241');">19 So.3d 241 (Ala. Civ. App. 2009), ] and Rule 24(a)(2), [Ala. R. Civ. P., ] we conclude that those authorities mandate the joinder or intervention of a property owner whose rights in certain property are being litigated. This is so even when a party already named in the action is protecting rights aligned with those of the nonparty property owner. Such joinder is not discretionary.").

"'"[The supreme court] has also held ... that in cases where the final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined."
"'Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala. 1991) (citations omitted). See also Johnston v. White-Spunner, 342 So.2d 754 (Ala. 1977)(when a trial court is asked to determine property rights of property owners not before the court, the absent property owners are indispensable parties and ...

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