Albertson v. Albertson
| Decision Date | 17 November 1995 |
| Citation | 678 So.2d 118 |
| Parties | Billy U. ALBERTSON v. Mildred S. ALBERTSON. 2940671. |
| Court | Alabama Court of Civil Appeals |
Lora L. Johnson of L. Sharon Egbert & Associates, P.C., Dothan, for Appellant.
Charles N. Reese of Reese and Reese, Daleville, for Appellee.
Following 23 years of marriage, Mildred S. Albertson ("the wife") filed a complaint for divorce against Billy U. Albertson ("the husband"), alleging incompatibility of temperament. After an ore tenus hearing, the trial court divorced the parties on the grounds of incompatibility, made certain property divisions, and awarded the wife periodic alimony in the form of mortgage payments. The husband filed a post-judgment motion, which the trial court denied.
The husband raises three issues on appeal: (1) whether the trial court abused its discretion in awarding the wife periodic alimony; (2) whether the trial court abused its discretion in its division of the property; and (3) whether the trial court abused its discretion in denying the husband's post-judgment motion, which was supported by evidence that the piano the court had awarded to the wife was not the property of either party at the time of the divorce.
A divorce judgment based on ore tenus evidence is presumed correct, and this court will not reverse such a judgment absent a finding of a plain and palpable abuse of discretion. Brannon v. Brannon, 477 So.2d 445 (Ala.Civ.App.1985). This presumption of correctness is based, in part, on the trial court's unique position to observe the parties and witnesses firsthand and to evaluate their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). The division of property and the award of alimony pursuant to a divorce are matters that rest soundly within the discretion of the trial court, and its rulings on those matters will not be disturbed on appeal absent an abuse of that discretion. Sketo v. Sketo, 608 So.2d 759 (Ala.Civ.App.1992); Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987). Additionally, "[a] property division and the [award of] periodic alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue." Montgomery, 519 So.2d at 526.
The husband first contends that the trial court's award to the wife of periodic alimony in the form of mortgage payments on the wife's current residence was an abuse of discretion. Specifically, the husband argues that the sole purpose of periodic alimony is to support the spouse, but that in this case the wife was self-sufficient and, therefore, not entitled to periodic alimony. We do not agree. One of the purposes of periodic alimony is to preserve the economic status the parties enjoyed during the marriage. Carnaggio v. Carnaggio, 475 So.2d 861 (Ala.Civ.App.1985). See also Chambliss v. Chambliss, 587 So.2d 406 (Ala.Civ.App.1991). The wife worked outside the home during the 23-year marriage. The record indicates that the wife's salary provided the financial stability for the parties to acquire what they did during the marriage. Additionally, the trial court is allowed to consider the conduct of the parties in determining if it will award periodic alimony. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). The trial court considered these factors and made an equitable division of the property. Accordingly, we conclude that the award of periodic alimony was not an abuse of discretion. See Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993) ().
The husband also argues that the trial court abused its discretion in its division of property. The husband argues that the wife received the greatest portion of the value of the marital property and, therefore, that the distribution of property was inequitable. The division of property is a matter within the trial court's discretion, and its ruling on that matter will be presumed correct. Montgomery v. Montgomery, supra. The trial court considers several factors in making a property division, including each spouse's earning ability, age, health, and conduct, and the length of the marriage. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). A property division does not have to be equal in order to be equitable. Sketo v. Sketo, 608 So.2d 759 (Ala.Civ.App.1992).
The record reveals that the court made a reasonable and equitable division of the parties' property. The husband received the proceeds from a judgment, two automobiles, his insurance policies, a lot in Texas, a residence, a mobile home park with all its appurtenances, the proceeds from a note on a lot sold in the trailer park, his stocks, the funds in any bank...
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