Catherine S. Cauthen v. Carey Lee Cauthen, Jr. (Appeal from Baldwin Circuit Court: DR-19-901487).

Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2024
_________________________

CL-2023-0382
_________________________

Catherine S. Cauthen

v.

Carey Lee Cauthen, Jr.

_________________________

CL-2023-0408
_________________________

Carey Lee Cauthen, Jr.

v.

Catherine S. Cauthen

Appeals from Baldwin Circuit Court
(DR-19-901487)
CL-2023-0382 and CL-2023-0408

On Application for Rehearing

FRIDY, Judge.

The opinion of July 26, 2024, is withdrawn and the following is

substituted therefore.

Catherine S. Cauthen ("the wife") appeals from a judgment of the

Baldwin Circuit Court ("the trial court") divorcing her from Carey Lee

Cauthen, Jr. ("the husband"), and, among other things, dividing the

marital assets, calculating child support, and finding her in contempt for

violating a status quo order. The husband cross appeals, challenging the

trial court's computation of his share of the value of a pickup truck, its

failure to hold the wife in contempt for failing to pay a certain bill and for

causing him to incur living expenses because of her violation of the status

quo order, and its failure to award him an attorney fee. For the reasons

set forth herein, we affirm the judgment in part, reverse it in part, and

remand the cause to the trial court.

Background

The parties married in July 2013 and had one child ("the child"),

who was born in 2016. On December 11, 2019, the wife filed a divorce

action against the husband alleging incompatibility of temperament. On

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December 12, 2019, the trial court entered an order directing the parties

to maintain the status quo as it existed during the marriage to the extent

possible. To assist in the achievement of that goal, the order directed the

parties to pay debts and recurring monthly financial obligations such as

rent, utilities, groceries, and the like "in the same manner and from the

same sources as they have customarily been paid during the marriage."

The status quo order also directed the parties to preserve assets,

providing:

"Apart from reasonable and necessary expenditures of funds
in order to pay the regular recurring expenses of the parties,
without PRIOR permission of the Court, the parties SHALL
NOT: (1) dissipate, encumber, sell, transfer, conceal, destroy,
or dispose of assets presently in their control, nor shall they
permit the same to occur; (2) make withdrawals from or
liquidate any account with a financial institution including
but not limited to checking, savings, money markets, or CDs;
(3) incur any debt; (4) withdraw from, borrow against, alter or
change the beneficiary designation of or reduce in any way
any retirement type account including but not limited to
profit-sharing, pension, IRA, or Keogh; (5) alter or change any
insurance policy (medical, life, property, etc.) including
making changes to the ownership, beneficiary designation,
term, or amount, and further shall not allow any policy to
lapse or the coverage to be otherwise adversely affected; (6)
terminate or adversely affect any utility service, including
water, gas, electric, cable, internet, telephone or other
services, or withdraw deposits therefrom; (7) expend any
funds for vacations or luxury items; (8) sign or endorse the
other party's name to or negotiate any negotiable instrument
or legal document (such as tax returns, tax refunds, insurance

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payments, loans, credit card applications); (9) terminate or
limit credit cards unless in that party's sole name; (10) open
or divert mail addressed to the other party; (11) destroy or
alter any records of any kind, including electronic data files."

On March 31, 2020, the husband answered the wife's complaint

with a general denial. Through different counsel, the husband filed an

amended answer and a counterclaim for divorce on April 29, 2020. That

same day, he filed a motion requesting custody of the child and exclusive

possession of the marital residence. In that motion, he alleged that the

wife had "become increasingly unstable, erratic, and violent" toward him

and that her behavior had "spiraled out of control," including, he said,

drinking alcohol to excess. The husband further alleged that the wife had

threatened to kill him and others, had threatened to commit suicide, and

had access to firearms. The trial court scheduled a hearing on the

husband's motion for May 4, 2020.

On May 4, 2020, shortly before the scheduled hearing, the wife filed

a response to the husband's motion alleging that, although they were

then living in separate rooms of the marital residence, the husband

"caused her to suffer inappropriate touching almost every morning" and

that he had raped her on at least two occasions. In her response, she

claimed she had not disclosed the alleged rapes earlier because, she said,

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she was a "private person and simply did not [want] anyone to know

about the situation in her home." The wife denied the behavior the

husband had attributed to her, stated that he drank alcohol to excess,

and claimed that he was "actually very lazy and is telling mistruths in

an effort to obtain money from [her] family as he refused to properly and

adequately provide for [the] wife and child." She asked that the husband

be required to vacate the marital residence and that she be allowed to

retain custody of the child.

The trial court held the hearing on May 4 as scheduled. On that

date, the trial court entered an order requiring that, because of the

allegations of domestic violence, guns in the marital residence, and

excessive use of alcohol by both parties, the Department of Human

Resources ("DHR") was to conduct a home study and report its findings

to the court.

The trial court held the trial over three days on August 2 and 6,

2021, and November 23, 2021. The wife and the husband both testified

that when they married in 2013, her father had given them a choice

between having a large wedding or having a smaller wedding and

receiving a gift of $40,000. They chose to take the money, and the

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ceremony was held before immediate family only. The wife's father,

however, testified that he did not give them any money at the time of the

wedding but, instead, had merely lent them the $40,000 to help them get

started in life; he had nothing to document that the payment was a loan.

When they first married, the husband and the wife lived in

Montgomery. After about four months, they moved to Dalhart, Texas. In

Dalhart, the husband worked in the cattle industry; the wife worked for

veterinarians making "farm calls" before going to work in a research

program in a diagnostic laboratory. The husband testified that, at that

time, his annual income was between $40,000 and $45,000 and the wife

earned between $50,000 and $55,000. The wife testified that her parents

lent them the money to purchase their first house. Because that house

was built over a sewer line, the wife said, they were forced to sell it

without a profit. She said she repaid her parents, who then gave her a

second loan to purchase the second home she and the husband had in

Dalhart. The wife said she and the husband bought the second house for

approximately $161,000 and that she paid her father $500 each month.

The wife testified that the second house needed numerous repairs, most

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of which she made herself, and that she paid a handyman to do the work

that she could not handle.

The child was born in September 2016. The wife said that, when

the parties lived in Texas, the husband paid for half of the child's daycare

expenses but that, at that time, she provided health insurance for the

family. She also said that, when she and the husband lived in Texas, he

"was never really around" because, she said, he was "roping," drinking

with his friends, or "hanging out with other women." She said that he

came home "enough to make it look good."

The husband and the wife sold the second house in December 2017

for $165,718.18. The wife said that she could not remember how much of

that amount she gave to her father but that she knew she paid him back

with interest. After selling the second house, the parties remained in

Texas for a few months before they returned to Alabama. The wife

testified that she wanted to live closer to her family in Alabama because

her grandfather was ill and because she wanted to divorce the husband.

She also said that her parents were eager for the wife, the husband, and

the child to return to Alabama. The husband testified that he and the

wife wanted to return to Alabama to start a cattle business on her

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family's land. The wife and the husband testified that the wife's mother

had said that she would keep the child and pay for daycare while the

mother worked.

The wife said that the husband left Texas in February 2018 but that

she and the child stayed until the end of March so that she could receive

a bonus at work. The husband returned to Montgomery, where he worked

at a stockyard for a man he had known for a long time and with whom he

had discussed "running some cattle" on the wife's family's land. The wife

said that the husband and she had hoped to run cattle on her

grandparents' property when she inherited that property until, she said,

she saw the husband's business plan. She did not elaborate on that

comment.

In March 2018, the wife and the child moved to Fairhope from

Texas and lived in a house ("the Fairhope house") her parents had

purchased. The wife said that her father offered to let them live in the

house rent-free. Her parents also initially paid the utilities at the

Fairhope house, the wife said.

The wife testified that she did not know why the husband went to

Montgomery rather than Fairhope, where she and the child were living,

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other than to say that he was supposed to obtain a job that provided

family health insurance. The wife testified that the husband's job at the

stockyard did not provide health insurance, but, she acknowledged, the

husband did begin providing the wife and the child with insurance within

a few months of starting work there.

The husband testified that, while he worked in Montgomery, he

traveled to Fairhope once or twice a week and almost every weekend that

he did not have to work. Other weekends, he said, the wife and the child

would come to Montgomery. The wife corroborated his testimony.

The husband testified that the wife and he had a happy marriage

and that, while they were living apart, they called each other daily. He

submitted text messages in which they used numerous terms of

endearment for each other. The texts tended to show that they had what

the husband said was a loving relationship in which they shared their

lives, including purchasing furniture together, looking at property

together, and doing routine things like buying groceries for the family.

The wife acknowledged that, when she and the husband returned to

Alabama, they would text each other about looking forward to spending

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CL-2023-0382 and CL-2023-0408

weekends together and about how much they loved each other. The

husband joined the wife in Fairhope in December 2018.

The wife testified that, throughout the marriage, she and the

husband maintained separate financial identities. She said that they

never had a joint financial account. She said that she had a checking

account ("the checking account") that she opened before the parties

married and a money-market savings account ("the savings account").

When the wife left Texas after receiving her bonus and after repaying the

loan from her parents that they had used to purchase the second house

in Texas, the checking account and the savings account had a combined

balance of $101,666.06. The record does not disclose the original source

or sources of the money in those accounts.

A review of transactions involving the checking account indicated

that the husband transferred money into that account but that he did not

deposit his entire paycheck into that account. The husband testified that

he considered his income during the marriage to be "marital funds." He

testified that, in 2018, he transferred $12,845.23 into the checking and

savings accounts in the wife's name. In 2019, he said, he transferred only

$5,561.99 into the wife's accounts but, that year, he said, he was also

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CL-2023-0382 and CL-2023-0408

paying more than $800 per month for health insurance for the wife and

the child. Additionally, he said, he would purchase groceries and paid

expenses incurred for the care and feeding of the wife's horses.

The wife said that she had full access to the husband's bank account

and that she would transfer money from the husband's bank account into

the checking account to pay the household bills. She said she also set up

an automatic payment from his bank account to pay credit-card debt. At

times, the wife said, she would send the husband a text message with the

amount of money she needed for the bills, and, she said, he would transfer

that amount to the checking account "after [she] produced a list of

documentation of what he was paying, cent for cent."

The wife referred to the husband's transfers of money into the

checking account as "reimbursements" for his share of the expenses and

said that he never put money into the account other than for those

"reimbursements." She said that she divided the household expenses the

"same as I did with all my roommates in college." For example, she said

that the husband provided money for his share of the utilities and, she

said, "[i]f he wanted TV, he had to pay for it because [she] thought it was

a waste of money."

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A review of the savings account indicated that the wife deposited

the bonus she received before leaving Texas into that account. She said

that she would transfer money from the savings account into the

checking account to pay for things.

In November or December of 2018, the wife said, she met John

Ikner and in early 2019, the two began to communicate by phone

regularly. She began working for his company, John Ikner Homes, Inc.,

at that time, and she admitted that the two began a sexual relationship

before she filed her divorce complaint in December 2019. At the time of

the trial, she continued to work as an independent contractor for Ikner's

construction company.

After the husband moved to Fairhope in December 2018, the wife

testified, there were "many, many nights" that she failed to come home.

The husband said that the first night she did not come home was

December 23, 2018. She returned to the Fairhope house the evening of

December 24, 2018. She acknowledged that the husband was home with

the child the nights she did not come home. She also admitted that she

came home one morning with a bumper hanging off her truck and, on

another occasion, she came home with vomit on the side of her vehicle.

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CL-2023-0382 and CL-2023-0408

The wife said that one night, she left the house by climbing out of the

bedroom window.

The husband testified that there were several nights when the wife

came home "highly intoxicated," to the extent that the child recognized

that something was wrong. Some nights, he said, the wife left the house

with guns from their gun safe. When asked whether she had taken a gun

from the gun safe, waved it around, and left the marital residence on

many occasions, the wife replied, "Not on many occasions, no." She said

that she had a pistol, three shotguns, and multiple rifles. She testified

that she had threatened to kill herself if the husband would not let her

out of the marriage. The husband corroborated the wife's testimony,

adding that, sometimes when the wife had been drinking, she had

threatened to kill other people. The husband said that, at his request, he

and the wife sought counseling but that it did not work.

The husband testified that he told the wife's mother that he was

concerned about the wife's drinking. He also said that he had talked to

the wife's mother several times about her possibly coming to the Fairhope

house to stay with the child on days he had to go to work early and the

wife had not come home from the night before. He said the wife's mother

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told him that she was worried about the wife, as well, and that she

believed that the wife needed help because of her drinking. To

corroborate his testimony regarding his conversations with the wife's

mother, the husband submitted a text message she had sent to him

informing him that the wife had been drinking again and was leaving the

house.

The wife testified that the husband had had unwanted sexual

contact with her in early 2019, then said it occurred in early 2020, after

she had filed the divorce complaint. We note that, in her testimony, the

wife never said that the husband had raped her, as she had alleged in

her response to the husband's motion for custody and for exclusive

possession of the marital residence.

The husband disputed the wife's characterization of his conduct. He

related an incident that occurred one Friday night in April 2019, when

he had planned to take the wife out to dinner and arranged for the wife's

mother to stay with the child. The wife did not come home until after

nine, the husband said, and told him that she did not want to go out to

eat. He said that he could tell that she had been drinking. The wife told

the husband that she wanted a divorce, and they talked for "quite some

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CL-2023-0382 and CL-2023-0408

time." He said he told the wife that he was willing to do anything he

could, adding that he was trying to save their marriage. Eventually, the

husband and the wife went to sleep, and, he said, he began touching her

to try to make up with her. He said that, in doing so, he may have touched

her crotch but that they did not engage in sexual relations. The wife

jumped up, he said, and he got the keys to her truck because he believed

that she was leaving. He said that the wife demanded the keys, and when

he did not give them to her, she hit him and then went to the guest room,

opened the gun safe, and began removing guns and putting them on the

bed. The husband said he pleaded with her to stay and told her that he

would sleep on the couch. He said that she told him that if he did not give

her the keys, she would call the police and report that he was threatening

her with the guns. He said he gave her the keys, and she left. Telephone

records that the husband submitted into evidence indicate that, when the

wife left the house, she called John Ikner. The records indicate that, in

April 2019, the month in which the described incident occurred, the wife

spoke with Ikner 118 times.

In April 2020, after the wife had filed the divorce complaint, she

called the husband to tell him she needed to get money out of their gun

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safe, where they also kept cash, to pay a worker $800. However, she said,

she took two envelopes of cash containing a total of approximately

$15,000 and left $600 for the husband. The husband confirmed the wife's

testimony, adding that she also removed several guns from the safe.

The wife's father testified that he was surprised to learn that the

wife had filed a divorce action and was also surprised about some of the

wife's behavior that the husband related to him. He said he had a

conversation with the wife and then told the husband that if they could

not get along, the husband should move out of the marital residence.

As mentioned, on May 4, 2020, the trial court heard the parties'

competing motions for possession of their house in Fairhope and for

temporary custody of the child. At the hearing, the trial court ordered

DHR to investigate the parties before it ruled on the motions. The next

day, May 5, 2020, the husband and the wife were served with an eviction

notice. According to the notice, the wife's parents had decided to sell the

Fairhope house "to reallocate funds that [were] needed elsewhere" and a

long-term rental of the Fairhope house was "contrary to the best use of

the property by the owner." The notice indicated that the husband and

the wife were to vacate the house no later than June 4, 2020.

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The wife testified that, upon receiving the eviction notice, the

husband looked for storage units where the parties could move their

personal property, including their home furnishings, and notified the

wife of the cost of those units. The wife said that, although she did not

remember specifically saying so, she probably told the husband that if he

moved anything out of the house, she would have him arrested for theft.

On June 4, 2020, the wife's parents issued a second notice permitting a

two-week extension of the lease "for personal property only." The notice

expressly provided that the wife's parents did not intend to allow the

husband to continue to live in the Fairhope house. The wife's father

testified that he and the wife's mother believed that the husband needed

to be out of the house.

The wife did not move from the Fairhope house, and she

acknowledged that by not allowing the husband to remove anything from

the Fairhope house while she continued to live there, she retained all the

marital property. Meanwhile, the husband had to find a new place to live

and furnish that residence. He testified that he rented a house in

Fairhope. He could not get any furniture or other items from the marital

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CL-2023-0382 and CL-2023-0408

residence, he said, and he even had to buy socks and a toothbrush the

day he left that house to be able to go to work the next day.

On July 1, 2020, the wife signed a new lease agreement with her

parents allowing her to live in the Fairhope house until June 1, 2021. The

rent was to be $2,300 per month, and the wife had to pay a security

deposit of $2,300. In addition, the wife was required to pay back rent from

May 2018, and, on July 1, 2020, the wife wrote a check to her parents for

$85,100. The wife's father testified that he was not aware, until the wife

filed for a divorce, that the husband and the wife had not been paying

rent for the Fairhope house, but he acknowledged that he had never

discussed rent with the husband. He said he did not like taking $85,100

for back rent but said that he felt like the husband and the wife needed

to pay it. The wife also paid her parents an additional $360 to store her

personal property in the Fairhope house from June through December

2020, even though she was living in the house at that time. She said she

paid that amount out of the checking account.

The wife testified that her mother signed the contracts for the

child's daycare and paid the child's daycare expenses of $185 per week

from May 2018 until June 29, 2020, for a total of $14,696. The wife

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testified that, after she filed the divorce complaint, she repaid her mother

the $14,696 for the daycare expenses with money from the checking

account. The wife also used money from the checking account to

"reimburse" her parents $4,398 for power and water bills that they had

paid while the husband and the wife lived in the Fairhope house. The

husband testified that, in all, the wife "depleted" a total of $144,545 from

what he said should be marital funds by paying "reimbursements" to her

parents.

Other than the two houses they purchased in Texas, the wife said,

the parties did not jointly purchase any other real estate during the

marriage. At the time of the trial, the wife said, she owned forty acres of

land ("the Higbee farm property") that had been a gift to her from her

grandfather, Dick Higbee, in 2006 or 2008, before the parties had

married. She testified that her grandfather had allowed another man to

farm the Higbee farm property and that that man was still farming that

property at the time of the trial. Before the marriage, the wife also

inherited a half-interest in a condominium in Auburn, which she sold

during the marriage. The wife said that her grandparents also "gifted"

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her a quarter-interest in a beach condominium, which was sold in 2020,

after she had filed the divorce action.

The husband testified that, other than the real property that the

wife had been gifted, the parties did not own any real property. However,

he said, the wife paid the taxes on the condominiums and the Higbee

farm property, as well as other fees and purchases associated with those

properties, from the account from which the household bills were paid

and to which he contributed money.

The husband testified about a dispute regarding the payment of the

parties' bill for cellular telephone service through Verizon ("the Verizon

account") that arose while the divorce was pending. He said that, in

addition to his line and the wife's line, the wife had added lines for her

mother and her grandmother, and the total bill was paid automatically

through one of the wife's credit cards. In April 2020, the husband said,

he was notified that three lines had been removed from the Verizon

account, so that his was the only line remaining, and that the automatic

payment through the wife's credit card had been deleted. As a result, he

said, he linked his credit card to the Verizon account. About a month

later, he said, he was notified that the three lines had been re-added to

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the Verizon account. The husband said that the wife's cancellation of the

payment method for the Verizon account, leaving him to pay the monthly

bill, constituted a violation of the status quo order. At trial and in his

postjudgment motion, the husband argued that the trial court should

have required the wife to reimburse him for an equitable portion of the

Verizon bill.

The wife testified that in April 2020, again while the divorce was

pending, she purchased two lots in Magnolia Springs ("the Magnolia

Springs property"). The wife said that the transaction was "in the works"

before she filed for the divorce in December 2019 and that she did not ask

the court for permission to purchase real property even though the status

quo order was in place when the closing occurred. To buy the Magnolia

Springs property, the wife said, she obtained a $130,000 loan from her

father, who also gave her an option to receive an additional $20,000 to

make improvements to the Magnolia Springs property. One of the lots

had a structure on it, which Ikner's company removed. The security and

collateral for the loan was the Magnolia Springs property; the wife's

father also took a 2019 model Chevrolet 2500 pickup truck that was in

the wife's name ("the wife's pickup truck") as additional collateral. The

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wife's pickup truck had been purchased during the marriage, and the

husband testified that he had often driven it during the marriage.

The wife's father testified that, by the time of the trial, no payments

had been made toward the $130,000 loan and that he had taken

ownership of the wife's pickup truck. The title and the insurance to that

truck were both in his name, he said. The husband testified, however,

that, after the wife's father's testimony, the husband paid to have a title

search performed on the truck, and it was still in the wife's name. The

wife's father also testified that he believed that the title to the Magnolia

Springs property reverted to him because of the wife's failure to repay

the loan. The wife's father said that he believed that the Magnolia

Springs property was worth between $130,000 and $140,000, but, even

though the property was worth at least as much as the loan, he still was

entitled to take ownership of the wife's pickup truck because, he said,

there had been some demolition expenses when the structure on one of

the lots was removed. He then admitted that the wife had paid those

expenses.

When the wife received the $130,000 loan from her father, she

signed a promissory note and received a payment schedule. She testified

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that she had not made any payments toward the loan and that she had

not exercised her option for money with which to make improvements.

The wife admitted that taking out the loan and creating an encumbrance

on her pickup truck appeared to be violations of the status quo order.

Evidence was presented indicating that, in January 2020, the month

after the wife received the loan from her father, a payment of $10,000

was made toward the wife's pickup truck from the checking account and

the savings account, but the wife said that she did not recall making that

payment. The wife said that paying $10,000 toward her pickup truck was

not part of her usual monthly recurring expenses, but, she said, she did

like to pay off vehicles early. At the time of the trial, no debt remained on

the wife's pickup truck.

In December 2020, the wife received a semi-annual $10,500 lease

payment from TMPA, Inc., for a cell tower on the Higbee farm property.

She deposited that money into the checking account. The husband

testified that the lease agreement for the cell tower was signed in

November 2019 and was for a term of forty-five years.

On January 3, 2021, again while the divorce was pending, the wife

purchased a 2017 Lexus automobile with a $5,000 down payment taken

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from the checking account. She said that the month before, she

transferred $4,000 from the savings account to the checking account

because, she said, she needed it. In March 2021, while the divorce was

pending, the wife opened what she called the Higbee Farms checking

account ("the Higbee Farms account"), which had approximately $20,000

in it at the time of the trial. The wife said she made an initial deposit of

$20,000 into the Higbee Farms account using money from the checking

account.

The wife testified that she lived in the Fairhope house for a full year

before moving in with her parents. She said she stayed with them for a

few weeks before moving into a house on Higbee Road ("the Higbee Road

house"), which her grandmother owned but that was empty. In 2021, the

wife wrote a series of checks from the checking account to pay for repairs

to the Higbee Road house, for cleaning the furniture she took to that

house, for an interior designer, and, after a hurricane, for repairs to the

fence around a pasture on her parents' property, where she kept her

horses. The checks totaled $35,235.76.

The husband testified that, at the time of the trial, he worked for

an engineering firm and, through November 2021, had earned $57,418

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for the year. The father's testimony and a pay stub from November 21,

2021, that he submitted into evidence indicate that he paid $428.27 every

two weeks for health- and dental-insurance coverage for the wife and the

child, or $927.92 per month.1 He testified that his employer paid for his

health and dental insurance. The wife testified that the husband had

paid for health insurance for the child and her but that, at the time of the

trial, she provided her own health insurance because, she said, she did

not want to be on his policy. The wife did not indicate whether she paid

for the child's health-insurance coverage, and she did not provide

1In his application for rehearing, the husband wrote that this court

had misstated the total amount he paid for health and dental insurance
coverage as $856.54, saying that there was no evidence in the record to
support that figure. We determined that amount based on the father's
testimony that he paid $381.27 twice per month, or $762.54 per month,
for health insurance for the wife and the child, and $47 twice per month,
or $94 per month, for dental insurance for the wife and the child, for a
total of $856.54 per month. This is the same amount derived from figures
the father used in his original appellate brief, in which he stated that the
father paid "$428.27 twice a month for medical and dental insurance
covering" only the wife and the child, which is a total of $856.54 per
month. Other evidence and testimony indicated that the father paid that
amount every other week rather than twice per month. Paying every
other week would result in twenty-six payments rather than the twenty-
four payments that would result if the father paid for the coverage twice
per month. The trial court based its calculation of the father's health-
care-coverage costs by determining that he was paid every other week, a
determination that was clearly supported by one interpretation of the
evidence presented.
25
CL-2023-0382 and CL-2023-0408

evidence of the cost of the insurance coverage she claimed she had

obtained for herself. The husband also testified that he had reviewed the

wife's bank records and determined from her deposits that her annual

income from various sources in 2019 had been $53,022.20.

The husband presented evidence indicating that, since the filing of

the divorce complaint and the entry of the status quo order, the wife had

spent $39,387 on renovations to the Higbee Road house. Additionally, he

submitted documentary evidence indicating that the wife transferred

$16,000 from the child's savings account to the wife's checking account

and an additional $7,000 from the Higbee Farms account to the checking

account. In all, the husband submitted documentary evidence indicating

that, since filing the divorce complaint, the wife had made what he called

"suspect transactions" totaling $62,000 that he said should have

remained in the checking and savings accounts in light of the status quo

order.

On December 29, 2021, the trial court entered an order divorcing

the parties but retaining jurisdiction over "post-nuptial" issues including

the division of marital property and child custody. On January 6, 2023,

the trial court entered the final judgment of divorce. In that judgment

26
CL-2023-0382 and CL-2023-0408

the trial court awarded the parties joint legal and physical custody of the

child and ordered the wife to pay the husband $142 per month in child

support, retroactive to January 2022. The retroactivity of the child-

support award created an arrearage of $1,846, which the trial court

ordered the wife to pay the husband immediately. The trial court also

made the following factual findings and awards:

"Testimony was provided by the wife and other
witnesses related to funds, transfers and property transfers
that was not only less than credible but appeared to be
actually fabricated for this litigation for the express purpose
of moving those assets out of the wife's or the marital estate.
Specifically, the Court finds that the lease payments on the
parties' home, the reimbursement for a wedding gift, loan
repayments, payment after the fact for childcare, auto
transfers, and charging the parties to store their furniture
were all transactions that were manipulated to circumvent
this Court's ability to rule on pending matters related to
possession of the home and on final matters related to
property division. The wife's choice to dispose of marital
assets violates this Court's Status Quo Order and for that, the
Court finds the mother in contempt of Court. She is herein
ordered to compensate the husband for the value of those
payments and marital assets, as is addressed in the Court's
award, to-wit:

"a. [The husband] is to receive 50% of the
value of the truck [the wife] pledged as collateral
and lied about transferring to her dad. A judgment
for $10,210.62 is entered in favor of [the husband]
and against [the wife]. The Court arrived at this
number by averaging the highest value estimates
given by the parties (to-wit: $60,000 and $26,000),

27
CL-2023-0382 and CL-2023-0408

and subtracting the payoff figure given at trial (to-
wit: $22,578.77) and dividing that by two. This was
the only evidence presented to the Court from
which the Court could make an award. Although
the [wife] or her father may have paid off the
remainder of the truck balance, that would have
been after the parties' separation and the court
does not factor that into this calculation.

"b. [The husband] is to receive 50% of what
[the wife] paid to her mother for day care. A
judgment for $7,348.00 is entered in favor of [the
husband] and against [the wife].

"c. [The husband] is to receive 50% of what
[the wife] was [sic] paid for the power and the
water. A judgment for $2,194.85 is entered in favor
of [the husband] and against [the wife].

"d. [The husband] is to receive 50% of the
storage fee paid to [the wife]. A judgment for
$180.00 is entered in favor of [the husband] and
against [the wife].

"e. [The husband] is to receive 50% of what
[the wife] was [sic] paid for rent. A judgment for
$42,550.00 is entered in favor of [the husband] and
against [the wife].

"f. [The husband] is to receive 50% of the
Lexus down payment made during the pendency of
this case. A judgment for $2,500.00 is entered in
favor of [the husband] and against [the wife].

"g. [The husband] is to receive 50% of the
wedding gift that was misrepresented to the court
as a loan. A judgment for $20,000.00 is entered in
favor of [the husband] and against [the wife].

28
CL-2023-0382 and CL-2023-0408

"h. [The husband] is to receive 50% of what
[the wife] paid for renovations to Dick Higbee
property and her parents' fence. A judgment for
$17,617.88 is entered in favor of [the husband] and
against [the wife].

"i. [The husband] is to receive 50% of what
was in the safe less what he got. A judgment for
$7,020.00 is entered in favor of [the husband] and
against [the wife].

"j. [The husband] is to receive his horse, and
pay to [the wife] a reasonable feed cost and farrier
bill since separation (less any feed he purchased).

"k. [The wife is to receive the Magnolia
Springs/Pecan Grove property and 100% of her
grandmother's property and all liability.

"l. [The wife] is to receive her Lexus and all
liability. [The husband] is to receive his
automobile and all liability."

The trial court also divided the parties' firearms and directed that,

if the parties could not otherwise agree, the remainder of their personal

property was to be divided by taking turns choosing items from a list until

all the property was divided. In addition, the trial court awarded the

husband control of all the 529 college funds and savings accounts

established to benefit the child and ordered the wife to reimburse any

money she had removed from those accounts during the pendency of the

29
CL-2023-0382 and CL-2023-0408

divorce. The trial court made each party responsible for their individual

debts and for their own attorney fees.

On February 2 and February 3, 2023, the wife and the husband filed

respective motions to alter, amend, or vacate the judgment. On May 5,

2023, the trial court entered an order purporting to address those

motions; however, the wife's motion had been denied by operation of law

on Wednesday, May 3, and the husband's had been denied by operation

of law on Thursday, May 4, 2023. See Rule 59.1, Ala. R. Civ. P. Thus, the

May 5, 2023, order was a nullity. See Moragne v. Moragne, 888 So. 2d

1280, 1282 (Ala. Civ. App. 2004); Ex parte Miller, 335 So. 3d 1151, 1153

(Ala. 2021). On June 1, 2023, the wife filed a notice of appeal to this court;

on June 8, 2023, the husband filed a cross-appeal.

Standard of Review

When this court reviews a divorce judgment entered after the

presentation of ore tenus evidence, we presume that the trial court's

factual findings are correct, and we will reverse a judgment based on

those findings only if the evidence does not support the judgment so as to

render it plainly and palpably wrong. Clements v. Clements, 990 So. 2d

383, 389 (Ala. Civ. App. 2007). Furthermore, "the ore tenus standard of

30
CL-2023-0382 and CL-2023-0408

review has no application to a trial court's conclusions of law or its

application of law to the facts; a trial court's ruling on a question of law

carries no presumption of correctness on appeal." Ex parte J.E., 1 So. 3d

1002, 1008 (Ala. 2008) (citing Ex parte Perkins, 646 So. 2d 46, 47 (Ala.

1994)).

Analysis

The wife's appeal

The wife contends that, in dividing the marital property, the trial

court erred by impermissibly considering what she says is her separate

estate. In Nichols v. Nichols, 824 So. 2d 797, 802 (Ala. Civ. App. 2001),

this court explained that, in a divorce proceeding, a spouse's "separate

estate" is the real or personal property over which that spouse exercises

exclusive control and from which the other spouse derives no benefit

because of the marital relationship. A spouse's separate estate includes

property that person owned prior to the marriage and property received

by gift or inheritance during the marriage. § 30-2-51(a), Ala. Code 1975.

Marital property, on the other hand, includes property the parties

purchased or otherwise accumulated during their marriage. In addition,

property that would otherwise qualify as one's separate estate may be

31
CL-2023-0382 and CL-2023-0408

considered marital property if it was regularly used, or income from it

was used, for the common benefit of the parties during their marriage.

See § 30-2-51(a), Ala. Code 1975. The trial judge has broad discretion to

determine whether such property is to be considered marital property.

Nichols, 824 So. 2d at 802.

The wife argues that the trial court impermissibly considered her

ownership interest in three properties she had been gifted before the

marriage (which, although she does not specifically identify those

parcels, appear to be the Higbee farm property, the half-interest in the

condominium in Auburn, and the quarter-interest in the beach

condominium) when it divided the marital property because, she says,

those properties were part of her separate estate. The judgment simply

does not support the wife's contention, however, because the trial court

did not award any of the gifted property in its property division; thus, we

find no merit to this contention.

The wife also argues that the trial court impermissibly considered

her share of the proceeds that she received when the Auburn

condominium and the beach condominium were sold. She placed those

proceeds in her checking account. She also says that she placed in the

32
CL-2023-0382 and CL-2023-0408

checking account the income she received from the lease of the Higbee

farm property for the use of a cellular-telephone tower.

The wife makes the conclusory assertion that the checking account

was not a joint account and, therefore, she says, the money she deposited

into that account, including the proceeds from the sale of the gifted

property, was not marital property. She further claims that she and the

husband "were each responsible for their own expenses and debts" and,

as she did at the trial, characterizes the husband's contributions to the

checking account or to the payment of bills or household purchases as

merely "reimbursements" for the expenses he incurred during the

marriage. In other words, the wife essentially characterizes all the

income and property the parties acquired during the marriage as each

spouse's separate property that would not have been subject to division

and, although she does not explicitly say so, she appears to assert that

the parties actually had no marital property.

The wife contends that she used what she called the "separate non-

marital funds" from the checking account to "repay her parents for their

generous loans she received while she was unemployed." Therefore, she

says, the trial court could not properly award the husband a portion of

33
CL-2023-0382 and CL-2023-0408

that money because, she said, it was not used for the common benefit of

the marriage and was not subject to division.

The underlying premise of the wife's argument, that is, that each

party retained his or her separate estate, including bank accounts and

vehicles purchased during the marriage, and that the husband merely

"reimbursed" her for what she said was his share of the expenses incurred

during the marriage, ignores the evidence showing that the wife's bank

accounts contained funds that came from both parties, that those funds

were comingled, and that those comingled funds were used to pay the

common bills and debts of the parties. Therefore, the trial court

reasonably could have believed that the funds in the bank accounts were

marital property subject to division. Additionally, the trial court was free

to reject the wife's disputed testimony that the parties' funds and bills

were divided during the marriage such that each party paid for only the

portion of each bill attributable to him or her, and only from money

received from his or her separate labor. See Morgan v. Morgan, 183 So.

3d 945, 967 (Ala. Civ. App. 2014) (holding that a trial court is not required

to believe the testimony of a party, especially when it has found portions

of that testimony not to be credible).

34
CL-2023-0382 and CL-2023-0408

Based on the evidence presented, we find no basis for concluding

that the trial court erred in determining that the checking account and

the savings account were marital property, that the husband was entitled

to a share of the money that was in those accounts, and that the wife

depleted those accounts after filing the complaint for divorce.

The wife also argues that the trial court improperly considered her

pickup truck when it divided the marital property. In its judgment, the

trial court awarded the husband half of its value. Evidence indicated that

the wife's pickup truck was purchased during the marriage and that the

husband had often driven it during the marriage. Like the bank accounts,

the trial court reasonably could have believed from the evidence that the

wife's pickup truck was also marital property subject to division, and we

find no basis for reversing that determination.

In a closely related argument, the wife contends that the trial court

erred in holding her in contempt for spending what she says were her

separate funds. As mentioned, in its judgment, the trial court found the

wife violated its status quo order when she engaged in certain

transactions that the trial court said were designed to move assets out of

35
CL-2023-0382 and CL-2023-0408

the wife's or the marital estate to prevent those assets from being subject

to division as marital property.

In its judgment, the trial court did not specify whether it was

holding the wife in civil contempt or in criminal contempt. In finding the

wife in contempt, however, the trial court ordered her to pay the husband

50% of the value of several items of personal property to compensate the

husband for the value of what it had found had been "manipulated to

circumvent" the court's "ability to rule on pending matters related to

possession of the home and on final matters related to property division."

Rule 70A, Ala. R. Civ. P., provides that, in civil proceedings, " '[c]ivil

contempt' means willful, continuing failure or refusal of any person to

comply with a court's lawful writ, subpoena, process, order, rule, or

command that by its nature is still capable of being complied with."2

Moreover, " '[t]he failure to perform an act required by the court for the

benefit of an opposing party constitutes civil contempt.' " J.K.L.B. Farms,

LLC v. Phillips, 975 So. 2d 1001, 1012 (Ala. Civ. App. 2007) (quoting

2In contrast to civil contempt, the dominant purpose of a finding of

criminal contempt in those situations where a party has disobeyed a
court order is to punish the contemnor rather than to coerce his or her
compliance with the order. See Rule 70A(a)(2)(C) and (D), Ala. R. Civ. P.

36
CL-2023-0382 and CL-2023-0408

Carter v. State ex rel. Bullock Cnty., 393 So. 2d 1368, 1370 (Ala. 1981)).

"The purpose of a civil contempt proceeding is to effectuate compliance

with court orders and not to punish the contemnor." Watts v. Watts, 706

So. 2d 749, 751 (Ala. Civ. App. 1997). Because the trial court's purpose in

having the wife repay the husband for depleted accounts or the value of

certain items was to compensate him rather than to punish the wife, we

conclude that the trial court intended to hold the wife in civil contempt.

"[T]he determination of whether a party is in contempt is within

the discretion of the trial court, and, unless the record reveals an " 'abuse

of that discretion or unless the judgment of the trial court is unsupported

by the evidence so as to be plainly and palpably wrong, this court will

affirm.' " Nave v. Nave, 942 So. 2d [372,] 377 [(Ala. Civ. App. 2005)]

(quoting Stack v. Stack, 646 So. 2d 51, 56 (Ala. Civ. App. 1994)).

Aside from paying for their regularly recurring expenses, the status

quo order forbade the parties from, among other things, transferring

assets, making withdrawals from or liquidating "any account with a

financial institution including but not limited to checking, savings,

money markets, or CDs"; incurring any debt; terminating or adversely

affecting any utility service, including telephone services; or expending

37
CL-2023-0382 and CL-2023-0408

any money for luxury items. The plain language of the status-quo order

does not differentiate between marital accounts or individual accounts.

As mentioned, whether certain property is marital property is left to the

discretion of the trial court; it is not up to the parties individually to make

that decision. See Nichols, 824 So. 2d at 802.

Here, the trial court found that the wife's transfer of money and

property from her accounts "appeared to be actually fabricated for this

litigation for the express purpose of moving those assets out of the wife's

or the marital estate." The evidence is undisputed that, during the

pendency of the divorce action, the wife depleted the checking and

savings accounts when her parents "decided" that she needed to

reimburse them for back rent and child-care expenses for which they had

never charged her, as well as reimbursing them for "storage fees," the

utilities incurred while the parties lived in the Fairhope house, and the

$40,000 the wife's father had given to the parties when they married.

Additionally, during the pendency of the divorce, the wife purchased real

property in Magnolia Springs with a loan from her father and for which

she used her pickup truck as collateral. She did not make any repayments

on that loan and said that she allowed the father to take her pickup truck,

38
CL-2023-0382 and CL-2023-0408

which the parties had purchased during the marriage, and put it in his

name. However, the husband presented evidence indicating that, at the

time of the trial, that truck remained in the wife's name. After the entry

of the status quo order, the wife also used money from the bank accounts

to repair a fence at her parents' residence, to renovate the Higbee

property, and to purchase a Lexus automobile.

The evidence clearly supports the trial court's determination that

the wife's depletion of the checking and savings accounts for the various

payments to her parents, the transfer of the wife's pickup truck to her

father, the purchase of a Lexus automobile, and the payments for repairs

to her parents' fence and her grandparents' property were violations of

the plain language of the status quo order. Therefore, the trial court's

judgment finding the wife in contempt for those transactions is due to be

affirmed.

The wife next contends that the trial court incorrectly calculated

the parties' incomes and their health-insurance payments for purposes of

determining child support. However, in her motion to alter, amend, or

vacate the judgment, the wife challenged only that portion of the child-

support calculation regarding the credit the husband was to be given for

39
CL-2023-0382 and CL-2023-0408

his payment of health-care insurance for the child. The wife did not raise

the issue of the correctness of its calculation of her monthly adjusted

gross income for purposes of determining her child-support obligation.

Therefore, we will not consider the wife's contention that the trial court

incorrectly calculated her monthly income when determining child

support. 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.")

Regarding the propriety of the amount the trial court credited to

the husband for his payment of health-care coverage, on the Form CS-42

that the trial court completed to calculate the parties' respective child-

support obligation, the trial court gave the husband a credit of $464 for

health-care-coverage costs attributable to the child. The wife argues that,

pursuant to Rule 32(7)(e), Ala. R. Jud. Admin., the trial court should have

divided the total amount that the husband paid for health-care coverage

by three rather than two to determine the credit because, she said, there

was no evidence that the husband had two separate health-care policies,

40
CL-2023-0382 and CL-2023-0408

one for himself and one for the wife and child. Rule 32(7)(e), Ala. R. Jud.

Admin., provides that health-care coverage costs

"shall be the pro rata portion of the health-care-coverage cost
attributable to the child or children who are the subject of the
support order, which shall be calculated by dividing the total
health-care-coverage cost actually paid by, or on behalf of, the
parent ordered to provide the coverage by the total number of
persons (adult and/or children) covered and then multiplying
the result by the number of children who are the subject of the
support order."

Based on the father's testimony and information included on his

November 21, 2021, pay stub, the father paid $11,135.02 annually --

$927.92 per month -- for health- and dental-insurance coverage for the

wife and the child. The father testified that his employer paid the cost of

his own health- and dental-insurance coverage. Using the method of

computation described in Rule 32(7)(e) for determining the portion of the

total cost of health-care coverage attributable to the child, the trial court

properly credited the husband with half of the total amount that he paid

for that coverage, which was $464 at the time of the trial. Therefore, we

affirm the judgment insofar as it calculated the wife's child-support

obligation.

The wife next contends that the trial court erred in awarding the

husband retroactive child support. In its March 2023 judgment, the trial

41
CL-2023-0382 and CL-2023-0408

court made the wife's child-support obligation retroactive to January 1,

2022, and found that the wife owed the husband $1,846 in child support

from January 2022 through January 2023. The mother also contends

that, by her calculation, the husband owes her $5,085 in child support for

the 30-month period before the trial court entered the judgment.

The wife did not raise any arguments concerning the trial court's

determination that she owed the father a child-support arrearage during

the trial or in her postjudgment motion. Therefore, we will not entertain

them on appeal. See Andrews, 612 So. 2d at 410.

The husband's appeal

The husband contends that, when the trial court awarded him half

the value of the wife's pickup truck, it improperly computed the value of

the wife's pickup truck based on the evidence presented. In its judgment,

the trial court awarded the husband $10,210.62, which it had calculated

was half the value of the wife's pickup truck. The trial court explained

that it had determined that value by "averaging the highest value

estimates given by the parties (to-wit: $60,000 and $26,000) and

subtracting the payoff figure given at trial (to-wit: $22,578.77) and

dividing that by two." The father argues that the trial court mistakenly

42
CL-2023-0382 and CL-2023-0408

used the estimations to which he testified regarding the value of the

wife's pickup truck, which was between $55,000 and $60,000, and the

value of his own pickup truck, a 2016 Chevrolet 1500 ("the husband's

pickup truck"), which was between $25,000 and $26,000. He said that he

still owed $23,000 on his pickup truck. He says that the wife did not

testify as to the value of her pickup truck, and our review of the record

does not reveal that the wife offered any evidence regarding the value of

her pickup truck. Indeed, in her reply brief, the wife does not dispute the

figures that the husband sets forth in his argument. Instead, she argues

the husband should not be permitted to recover more than the $10,210.62

the trial court awarded him for his share of the value of her pickup truck

because, she says, the husband did not contribute any payments toward

the truck or its maintenance. She makes no argument regarding the

factual mistake upon which the husband bases his argument as to this

issue.

Based on our review of the record, we agree with the husband that

the evidence indicates that the trial court mistakenly calculated the

value of the wife's pickup truck based on a range of values the record does

not support. The only evidence regarding the value of the wife's pickup

43
CL-2023-0382 and CL-2023-0408

truck is the range of between $55,000 and $60,000 to which the husband

testified. Additionally, the evidence was undisputed that there was no

debt on the wife's pickup truck at the time of the trial. Because the trial

court's calculation of 50% of the value of the wife's pickup truck was based

on a factual mistake, we reverse the judgment as to the award of

$10,210.62 to the husband for his share of the value of that vehicle, and

we remand the cause for the trial court to recalculate its award based on

the evidence discussed herein.

The husband next contends that the trial court erred by failing to

award him an attorney fee. Specifically, he argues that he should have

been awarded an attorney fee because of the wife's conduct, including her

admitted adultery and the fabrication of evidence regarding the depletion

of money from the bank accounts the wife claimed were hers alone but

which the trial court concluded was marital property. The latter conduct

was a basis for the trial court's decision to hold the wife in contempt.

Section 30-2-54, Ala. Code 1975, provides that a trial court, in its

discretion, may award an attorney fee in a divorce case upon a finding of

civil contempt. Rhodes v. Rhodes, 317 So. 3d 37, 46 (Ala. Civ. App. 2020).

The trial court awarded the husband half of the amount it found that the

44
CL-2023-0382 and CL-2023-0408

wife had depleted the bank accounts at issue "to compensate" the

husband. The trial court was not required to award the husband an

attorney fee on top of that compensation, and, given the evidence before

it, we cannot conclude that the trial court abused its discretion in

refusing to do so.

Regarding the wife's adultery, we note that, in the judgment, the

trial court did not state the basis on which it divorced the parties. A trial

court is granted broad discretion regarding whether to award an attorney

fee in domestic relations cases. See Turney v. Turney, 381 So. 3d 429, 443

(Ala. Civ. App. 2022). "Factors to be considered by the trial court when

awarding such fees include the financial circumstances of the parties, the

parties' conduct, the results of the litigation, and, where appropriate, the

trial court's knowledge and experience as to the value of the services

performed by the attorney." Figures v. Figures, 624 So. 2d 188, 191 (Ala.

Civ. App. 1993). "This court will not reverse the trial court's discretionary

decisions unless we are convinced that it committed a clear or palpable

error, without the correction of which manifest injustice will be done."

Turney, 381 So. 3d at 443 (internal citations omitted). The evidence

indicated that, at the time of the trial, the incomes of the husband and

45
CL-2023-0382 and CL-2023-0408

the wife were essentially equal, with both earning between $50,000 and

$60,000 annually. The trial court's division of marital property was also

essentially equal. We cannot say that the trial court's decision not to

award the husband an attorney fee results in a manifest injustice under

the circumstances. Therefore, the judgment is due to be affirmed as to

this issue.

The husband next contends that the trial court erred by failing to

hold the wife in contempt for her refusal to pay the Verizon cellular-

telephone bill. Specifically, he argues that, after the trial court entered

the status quo order, the wife removed her line, her mother's line, and

her grandmother's line from the Verizon account and stopped paying the

Verizon bill by means of automatic payments to her credit card. Then,

after the husband began paying the Verizon bill by means of automatic

payments from his credit card, she restored those lines to the Verizon

account, causing him to have to pay for those lines. The wife's conduct,

he argues, caused him to incur $3,487.11 in expenses that he was not

paying before the entry of the status quo order. In support of his

contention, the husband cites Reed v. Dyas, 28 So. 3d 6 (Ala. Civ. App.

2009), in which this court reversed a judgment denying a wife's motion

46
CL-2023-0382 and CL-2023-0408

for contempt that she filed when the husband stopped making payments

on vehicles after being ordered to do so in the parties' divorce judgment.

In Reed, we quoted J.K.L.B. Farms, LLC v. Phillips, 975 So. 2d 1001,

1012 (Ala. Civ. App. 2007), for the proposition that " '[t]he failure to

perform an act required by the court for the benefit of an opposing party

constitutes civil contempt.' Carter v. State ex rel. Bullock County, 393 So.

2d 1368, 1370 (Ala. 1981)." Reed, 28 So. 3d at 8.

As previously noted, whether to hold a party in contempt is left to

the trial court's discretion, and this court will not reverse a trial court's

decision regarding whether a party is in contempt unless it is so

unsupported by the evidence as to be plainly and palpably wrong. Nave,

942 So. 2d at 377. Here, the status quo order directed the parties to pay

debts and recurring monthly financial obligations such as rent, utilities,

groceries, and the like "in the same manner and from the same sources

as they have customarily been paid during the marriage." It is

undisputed that the wife's actions changed the source of the payment of

the Verizon bill. The trial court held the wife in contempt for other

violations of the status quo order, and our review of the record reveals no

justification for excluding this particular violation from the ones for

47
CL-2023-0382 and CL-2023-0408

which the wife was ordered to compensate the husband. We conclude that

the evidence does not support the trial court's decision not to hold the

wife in contempt for what can only be viewed as the intentional shifting

of the responsibility for payment of the Verizon bill to the husband after

the entry of the status quo order. See Reed, 28 So. 3d at 8. Therefore, the

judgment is revered as to this issue, and on remand, the trial court is

directed to enter a judgment consistent with this opinion.

The husband next contends that the wife caused him to incur living

expenses higher than those he had had before the entry of the status quo

order when, he says, she wrongfully evicted him and locked him out of

the marital residence. He seeks $32,210.65 or some portion thereof as

compensation for the financial loss he claims he sustained because of the

wife's conduct.

The wife's parents owned the marital residence, and they took steps

to evict the parties from that house, albeit in a manner that appeared to

be contrived between them and the wife, particularly because the wife

was never required to leave the residence. The husband does not argue

that the wife's parents' conduct violated a lease agreement, and he does

not assert that they had no legal basis for evicting him. The status quo

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CL-2023-0382 and CL-2023-0408

order did not prohibit the wife's parents, who were not parties to the

divorce action, from determining who they would permit to live on their

property, and the trial court properly could have concluded that their

action in evicting the husband did not constitute a violation of the status

quo order by the wife. Thus, we find no merit in the husband's contention.

Conclusion

For the reasons set forth above, we reverse the judgment insofar as

it incorrectly determined the value of the wife's pickup truck and failed

to hold the wife in contempt for changing the source of payment for the

Verizon bill in violation of the status quo order. In all other respects, we

affirm the judgment. We remand the cause to the trial court for it to enter

a new judgment consistent with this opinion.

The husband's request for an attorney fee on appeal is denied.

CL-2023-0382 – APPLICATION GRANTED; OPINION OF JULY

26, 2024, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

Edwards and Hanson, JJ., concur.

Moore, P.J., and Lewis, J., concur in the result, without opinions.

49
CL-2023-0382 and CL-2023-0408

CL-2023-0408 – APPLICATION GRANTED; OPINION OF JULY

26, 2024, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN

PART; REVERSED IN PART; AND REMANDED.

Edwards, Hanson, and Lewis, JJ., concur.

Moore, P.J., concurs in the result, without opinion.

50