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Section 8-9a-1 Et Seq., Ala. Code 1975, Fraudulent Transfer Act Applies To Divorce Property Settlement: Holsombeck V. USAmeribank

Holsombeck v. USAmeriBank, [Ms. 2160960, Mar. 16, 2018] __ So. 3d __ (Ala. Civ. App. 2018). The court (Thomas, J., and Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur) unanimously holds that the Jefferson Circuit Court correctly found from evidence heard ore tenus that a husband with substantial debts from his closely held construction company violated provisions of the Alabama Fraudulent Transfer Act, § 8-9A-1 et seq., Ala. Code 1975, as construed by American Nat'l Red Cross v. ASD Specialty Healthcare, Inc., 888 So. 2d 464-65 (Ala. 2003), and Thompson Props v. Birmingham Hide & Tallow Co., 839 So. 2d 629, 632 (Ala. 2002), when he transferred his equity in the marital home to his wife as part of a divorce settlement even though their home had been pledged as security for notes incurred on behalf of the failing construction business. Citing Res-Ga Lake Shadow, LLC v. Kennedy, 227 So. 3d 522 (Ala. Civ. App. 2017), and Aliant Bank v. Davis, 198 So. 3d 508 (Ala. Civ. App. 2015), the court reiterates that while the Alabama Fraudulent Transfers Act ordinarily is not applicable to divisions of marital property between divorcing spouses, "[w]hether the AFT applies in a given situation should be determined on a case-by-case basis." Ms. *10-12. The court concludes:

"substantial evidence supports the circuit court's determination that the divorce settlement agreement had been crafted to transfer the husband's interest in the marital assets to the wife with an actual intent to hinder, delay, or defraud the bank based upon the circuit court's consideration of the factors provided by § 8-9A-4(b). The circuit court's judgment is not clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So. 2d 442, 444 (Ala. 1995). Therefore, the judgment is affirmed."

Ms. *16.

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