Crowe v. Crowe

• Decision Date: 24 July 1992
• Citation: 602 So.2d 441
• Parties: George O. CROWE, Jr. v. Ruby H. CROWE. 2910247.
• Court: Alabama Court of Civil Appeals

Page 441

602 So.2d 441

George O. CROWE, Jr. v.Ruby H. CROWE.

2910247.

Court of Civil Appeals of Alabama.

July 24, 1992.

Gary E. Davis, Centre, for appellant.

H. Dean Buttram, Jr. and William M. Hawkins, Jr., Centre, for appellee.

THIGPEN, Judge.

This divorce case involves parties married to each other for a period of over 38 years.

The husband filed for divorce, alleging incompatibility.The wife answered and counterclaimed, alleging, inter alia, incompatibility, physical abuse, and habitual addiction to alcohol during the marriage.There were no minor children involved.

Following ore tenus proceedings, the trial court granted a divorce and awarded the wife substantially all of the marital assets, which included the marital residence.In addition to receiving two pieces of antique furniture, the husband received one unimproved lot and a monetary settlement of $1,000.Also, the husband was divested of any interest in the wife's retirement, pension, and/or profit-sharing plan obtained through her employment.The wife was ordered to assume any outstanding bank debts owed in her name, including real estate mortgages.

After hearing the husband's motion for a new trial, the trial court amended its final order to award the husband an undivided one-half interest in the marital residence and surrounding acreage subject to the parties' youngest son's interest in a parcel of land on which that son lives.The use of the marital property was awarded to the wife for her lifetime, subject to certain conditions.

From this amended order, the husband appeals, alleging that the trial court abused its discretion by awarding the wife exclusive possession of the majority of the marital estate.We affirm.

In divorce cases, the division of marital property is an issue well within the sound discretion of the trial court.Conradi v. Conradi, 567 So.2d 364(Ala.Civ.App.1990).The judgment of the trial court in a divorce case presented ore tenus is presumed to be correct until it is shown to be plainly and palpably wrong or unjust.Ex parte Jackson, 567 So.2d 867(Ala.1990).Furthermore, in an ore tenus proceeding, the trial court is the sole judge of the facts and the credibility of the witnesses, and as such, it should accept only the testimony it considers worthy of belief.Brown v. Brown, 586 So.2d 919(Ala.Civ.App.1991)."In determining the weight to be accorded to the testimony of any witness, the trial court may consider the demeanor of the witness and the witness's apparent candor or evasiveness."Brown, 586 So.2d 919, 921.

The husband contends that to award the wife exclusive possession of the majority of the marital property, both real and personal, is an inequitable division so as to create in the minds of this court an abuse of judicial discretion on the part of the trial court.We note, however, that the law does not require the trial court to award each party an equal portion of commonly-used assets.Ala.Code 1975, § 30-2-51;Mangina v. Mangina, 585 So.2d 1383(Ala.Civ.App.1991).The property division in a divorce case need not be equal, but must be graduated according to the particular circumstances of the case.Mangina, supra.In addition, "the fault of the parties is...