The case of Cowperthwait v. Cowperthwait, DR No. 2150252 (Ala. Civ. App. January 6, 2017) deals with four main issues, but this note will focus on the treatment of credit card charges the wife made shortly before the divorce. The two principal charges were a $2,857 charge for her attorney’s fee and a $2,500 cash advance. The trial court ordered the husband to pay the entire credit card bill of $5, 700, and the husband appealed.
The appeals court treated the two charges differently. Because the first charge was for an attorney’s fee, and because the appeals court said the trial court awarded no attorney’s fee “because the wife had made no claim for those fees,” the appeals court said the requirement that the husband pay this portion of the credit card bill could not stand. Judge Thompson’s dissent points out that the wife did try to raise the issue of attorney’s fees in trial and that her effort was thwarted by the husband’s objections, but let’s not try to guess whether she really raised it. The central issue from this case for people in divorce is, if you’ve charged an attorney’s fee on a credit card, you still need to defend that charge in the trial by showing it was reasonable, accurate, and attributable to the divorce.
On the second charge, the one for the $2,500, the appeals court affirmed the trial court on it because the husband did not submit specific evidence that the wife had used the funds for her personal benefit. The husband had pointed out the cash advance and had argued generally that, if she used the cash advance for her personal benefit it couldn’t be considered a marital debt, but he had not provided any evidence of how the money was used. “This Court does not have the obligation to search the record for substantiation of unsupported factual matter appearing in an appellant’s brief in order to determine whether a judgment should be reversed. Friedman v. Friedman, 971 So.2d 23, 31 (Ala. 2007).”
The lesson here for litigants is that an objection to a cash advance in divorce needs to be accompanied by specific evidence describing how the funds were used for the personal benefit of the person taking the cash advance. Conversely, if you elect to take a cash advance on a credit card during a troubled period of a marriage, you will want to create and maintain careful documentation showing that the funds you took out were used for the benefit of the marriage and/or the children. Also, be ready to show that personal expenses were paid from other funds that are not marital.