Chambliss v. Chambliss

• Decision Date: 16 August 1991
• Citation: 587 So.2d 406
• Parties: Virgia CHAMBLISS v. Fletcher CHAMBLISS. 2900426.
• Court: Alabama Court of Civil Appeals

Page 406

587 So.2d 406

Virgia CHAMBLISS v. Fletcher CHAMBLISS.

2900426.

Court of Civil Appeals of Alabama.

Aug. 16, 1991.

William M. Russell, Jr., Tuskegee, for appellant.

Edwin L. Davis, Tuskegee Institute, for appellee.

ROBERT P. BRADLEY, Retired Appellate Judge.

This is a divorce case.

In 1977 the parties resided in Columbus, Georgia and sought a legal separation in the Superior Court of Muscogee County. The Georgia court issued an order requiring the husband to pay $550 per month for the support of the wife and the parties' three minor children. The husband paid this amount only intermittently. After the wife collected $10,000 in arrearage from the Georgia court, the husband's support obligation was lowered to $375.

In 1990 the wife filed a complaint for divorce in the Macon County Circuit Court. The wife sought custody of the three children, as well as alimony and child support from the husband. After an ore tenus proceeding, the Macon court granted the divorce and awarded custody of the children to the wife. The husband was ordered to pay $400 per month child support but was not ordered to pay alimony. The wife subsequently filed a motion for new trial based on the trial court's failure to award alimony and attorney's fees to her, as well as its failure to require the husband to maintain medical insurance for her and the child. The trial court denied the motion and the wife appeals.

In divorce cases where the evidence is presented ore tenus, the trial court's findings are presumed correct and will not be overturned except for plain and palpable error. Edwards v. Edwards, 410 So.2d 91 (Ala.Civ.App.1982). This presumption of correctness is strengthened by the denial of a motion for new trial. Edwards. Moreover, awards of alimony, child support, and attorney's fees are all within the trial court's discretion and its judgment on these matters will not be reversed absent a showing that this discretion has been abused. Hansen v. Hansen, 401 So.2d 105 (Ala.Civ.App.1981). Where a court fails to specifically retain jurisdiction to award alimony and does not make such an award in the divorce decree, such jurisdiction is thereafter lost. Whitehead v. Whitehead, 494 So.2d 456 (Ala.Civ.App.1986).

The first issue raised by the wife is whether the trial court erred in not awarding her alimony. The wife points out that the general purpose of alimony is to preserve the financial status quo of the parties as it existed during the marriage. Grimsley v. Grimsley, 545 So.2d 75 (Ala.Civ.App.1989). The wife argues that the trial court's failure to award her alimony is palpably wrong because it destroys this status quo.

The record indicates that, even prior to the parties' 13-year separation, the husband contributed little more for the support of the wife and three children than he is now required to pay. In short, the wife received about $400 per month from the husband for most of the time they were married. The trial court's order has thus effectively maintained the financial status quo as it existed throughout the marriage. However, we note that there are other factors to be considered by the trial court when determining the issue of alimony. These factors include the health and future earning potential of each party. Masucci v. Masucci, 435 So.2d 120 (Ala.Civ.App.1983).

The record reveals that the wife has completed a nine-month course in medical assistance and is employed as a part time private duty nurse. She works 25 to 28 hours per week and earns $5 per hour. The wife testified that she is a diabetic and controls her condition through medication and diet; however, she did not offer evidence to show that this condition is severe enough to cause her under-employment. There is nothing in the record to show that the wife lacks the ability to work full time.

The record shows that the husband is 54 years old and is in good health. He is employed full time as a railroad worker earning over $11 per hour and expects to obtain a higher paying position in the near future. The husband will qualify for retirement in about...