When “Equitable” is Nowhere Near Equal

Lawyers and judges often repeat the truism that Alabama’s principle of dividing marital property in a divorce is that the division should be equitable but not necessarily equal. We get a refresher in today’s case of just how unequal property division can be in Alabama and still be sustained on appeal.

We don’t have a majority opinion in Ex parte Andrews, Case No. 1080593 (Ala. May 22, 2009), so we are forced to glean the issues from Chief Justice Cobb’s dissent and Justice Shaw’s concurring opinion. The main decision is PER CURIAM, meaning the entire court issued the decision without writing an opinion. There is also no opinion from the Alabama Court of Civil Appeals.

Because there is no statement of facts from the court, there’s even a discrepancy about the facts in the case. What everyone seems to acknowledge is that Mr. and Mrs. Andrews were divorced in 2008 in Calhoun County, that the wife’s parents provided almost all the wealth the couple enjoyed during their marriage, and that the trial court awarded more assets to the wife than to the husband.

Chief Justice Cobb attached to her dissent the husband’s entire petition for writ of certiorari, so many of the facts we DON’T need are preserved in the record. In her two-paragraph dissent she quotes with approval the husband’s assertion that the trial court awarded 97.6% of the marital estate to the wife and only 2.4% to the husband. Justice Shaw questions this assertion in his concurring opinion, however, observing that many of the assets awarded to the wife seem to have been purchased from funds outside the marriage and may therefore have remained separate property.

The Chief Justice’s argument goes solely to the disparate percentages. In his concurring opinion, Justice Shaw points out that no Alabama case has held that any particular percentage of marital property division is unsupportable or due to be reversed.

The cases the husband cites do not hold that, as a matter of law, a property division can be rendered inequitable by mere mathematical ratios. In fact, although the appellate courts of this State have reversed judgments on the basis that the division of marital property is disproportionate, “there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.” Yohey v. Yohey, 890 So. 2d 160, 164 (Ala. Civ. App. 2004). “Even if a property division favors one party over the other, that is not, in and of itself, an abuse of discretion.” Jordan v. Jordan, 547 So. 2d 574, 576 (Ala. Civ. App. 1989).  [*6] See also Jenkins v. Jenkins, 781 So. 2d 986, 989 (Ala. Civ. App. 2000) (“The trial court’s property division and its alimony award are required to be equitable, not equal.”). Andrews at 5 (footnote omitted).

Justice Shaw’s concurrence describes the process of property division in divorce as “a fact-intensive analysis in which the trial court considers numerous factors, including ‘the source, value and type of property owned,'” an analysis that the appeals court is not to reverse without a showing of palpable abuse. Justice Shaw said the husband had not addressed the factors relevant in property division, noting specifically that the trial court could have considered that the source of the property was almost wholly the wife’s parents.

Justice Shaw said that Alabama Rule of Appellate Procedure 39(a), which authorizes the issuance of a writ of certiorari, requires that the petitioner state with particularity how the decision for which certiorari is requested conflicts with prior decisions AND that the petitioner must demonstrate a probability of merit. Justice Shaw stated that he found neither in the husband’s petition.