Cox v. Cox

• Citation: 395 So.2d 1027
• Parties: Aileen G. COX v. James E. COX. Civ. 2398.
• Decision Date: 11 March 1981
• Court: Alabama Court of Civil Appeals

Page 1027

395 So.2d 1027

Aileen G. COX v. James E. COX.

Civ. 2398.

Court of Civil Appeals of Alabama.

March 11, 1981.

Bryce U. Graham, Tuscumbia, for appellant.

James H. Tompkins of Tompkins & Tompkins, Tuscumbia, for appellee.

HOLMES, Judge.

This is a divorce case. The husband filed a petition for divorce on grounds of incompatibility. The trial court granted the divorce, ordered a division of property, awarded custody of the parties' minor child to the wife, and required the husband to pay $175 per month as child support. The wife appeals.

The issues on appeal are (1) whether the trial judge abused his discretion in the division of property and (2) whether the trial judge abused his discretion in the amount of child support the husband was ordered to pay. We find no such abuse of discretion as to require reversal and affirm.

Viewing the record with the attendant presumptions accorded the trial court's decree, the following is pertinently revealed: The parties were married in 1967. Both had been married previously and had children by prior marriages. One daughter was born to the parties; she was eleven at the time of trial.

The wife's first husband died, leaving her the proceeds from a $50,000 insurance policy, about $20,000 of which she spent before marrying Mr. Cox. The wife also received benefits from the Social Security Administration, the Veteran's Administration, and workmen's compensation as a result of her first husband's death. The wife was not working when she married Mr. Cox.

When the parties married, the wife and her three minor children moved into a small house owned by the husband. The mortgage on that house was foreclosed several years later. The wife loaned or furnished $10,000 which was used to redeem the house. A few years later the husband executed a deed to the small house to the wife in order to protect his interest from attachment by the husband's former wife.

Between 1967 and 1969, the wife paid $6,400 for two adjacent lots. Title to both was put in the wife's name for the reason cited above. After the first lot was acquired, the husband began building a larger home for the parties. He was the general contractor and the trial court found the services the husband rendered in connection with the building of this home were worth $12,000 to $15,000. The wife contributed $22,000 and the parties borrowed $25,000 from a savings and loan association. At the time of trial the home was worth in excess of $80,000 and the extra lot was worth $5,000.

After their marriage in 1967, the parties opened a joint checking account at the bank. For almost thirteen years the husband's weekly paycheck was deposited to this account; his average yearly income was $12,000. The wife's contributions were somewhat less than the husband's. She contributed some of the money she received as a result of her previous husband's death. When she went to work in 1975, she contributed more, but her salary never was as great as the husband's.

After moving into the new house, the parties rented the small house and the rent payments they received were deposited in the joint checking account. Funds from the joint checking account were used for the general support of the family.

At some time prior to the husband's filing of the divorce petition, the wife's daughter moved into the small house. The daughter did not pay rent. Shortly thereafter, the daughter married and there was some discussion regarding a sale of the small house by the parties to the daughter and her husband. However, no agreement was reached.

Some six days before the husband filed for divorce, the wife transferred title to the small house to her daughter. At the time the transfer was made, the wife knew that the husband wanted a divorce and that he wanted one-half of all the real property owned by the parties.

As stated above, the trial judge granted the parties a divorce on grounds of incompatibility. He awarded custody of the parties' minor child to the wife and ordered the husband to pay $175 per month as child support.

Additionally, the trial judge, in effect, awarded the husband a one-half undivided interest in the small house which the wife had transferred to her daughter; he set the value of this interest at $15,000. The court also awarded the husband a one-half interest in the large house and the adjacent vacant lot.

Specifically, the trial court ordered the larger house and the adjacent lot sold. The proceeds are first to be applied to the mortgage. Then each party is to receive one-half of the remaining proceeds. However, $15,000 of the wife's one-half is to be given to the husband in lieu of his interest in the small house, which the wife's daughter now apparently owns.

The initial issue on appeal is whether the trial judge abused his discretion in the division of property.

A trial court is afforded wide discretion in awarding marital assets in divorce cases and such discretion is presumed correctly applied on appeal. Thompson v. Thompson, Ala.Civ.App., 377 So.2d 141 (1979). That division of property will not be set aside or revised unless it is determined to be so arbitrary, disparate and contrary to equity as to be clearly wrong and unjust. Thompson v. Thompson, supra; Kirk v. Kirk, Ala.Civ.App., 371 So.2d 54 (1979)....