Dees v. Dees

• Decision Date: 19 November 1980
• Citation: 390 So.2d 1060
• Parties: Maureene Bass DEES v. Morris S. DEES. Civ. 2114.
• Court: Alabama Court of Civil Appeals

Page 1060

390 So.2d 1060

Maureene Bass DEES v. Morris S. DEES.

Civ. 2114.

Court of Civil Appeals of Alabama.

Nov. 19, 1980.

Maury Smith, Julia S. Waters and Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.

Vaughan H. Robison, David B. Byrne, Jr. and Ernest C. Hornsby of Robison & Belser, Montgomery, for appellee.

WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals. The primary issue is whether the trial court erred in its application of § 30-2-51, Code of Alabama (1975) to the facts of the case or abused its discretion in the award of alimony and division of property. We find the trial court erred and remand for further consideration in light of our decision.

This case took some ten days for trial. The record is comprised of some 250 pages of pleading and orders, some 1,650 pages of testimony and over 200 exhibits which include several lengthy depositions and many documents and tax records. A divorce was granted on the ground of incompatibility and irreconcilable differences. After perusing the record, with its charges, counter-charges and other testimony relating to the conduct of the parties during their ten years of marriage, we have concluded that it would serve no useful purpose to relate the details of that conduct here. To the contrary, we are of the opinion that to do so would be detrimental to the best interest of the parties and in particular to their children. We therefore find from the record that the only reasonable conclusion is that the parties were so equally at fault in contributing to the failure of the marriage that the element of fault should be disregarded, even in respect to consideration of division of property and award of alimony. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 289 So.2d 260 (1974).

The court below apparently was of the same opinion. Though making extensive finding of fact relative to the origin of the husband's estate, it made no finding of fault. The trial court awarded to the wife the primary custody of the nine-year-old daughter, ¹ with monthly support in the amount of $1,500. Other benefits and expenses of the child were ordered to be paid by the father. He was given liberal visitation and temporary custody rights. The wife was awarded one-half of all household property acquired during the marriage, all gifts from the husband, an automobile, personal property which she brought to the marriage and $120,000. The $120,000 was ordered to be paid by the husband at the rate of $2,000 per month or in larger sums at his election. ²

It is evident from the finding of fact and the judgment based thereon that the court below so literally applied § 30-2-51 that it refused to consider the more than $3,500,000 estate of the husband in determining its alimony award to the wife and in failing to award to her a division of property.

Section 30-2-51, Code of Alabama (1975) as amended in 1979 reads as follows:

If either spouse has no separate estate or if it be insufficient for the maintenance of such spouse, the judge, upon granting a divorce, at his discretion, may order to such spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family; provided, however, that the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the trial judge finds from the evidence that such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage. (Emphasis ours.)

As in most Alabama statutes, there is no legislative record of the purpose and intent of the proviso added in 1979 which now concludes this statute. It has had no appellate court interpretation in its short tenure. ³ As the latter portion of the statute was added at the same time the old statute was made applicable to both spouses, it might be conjectured that the intent was to protect the separate estate of a wife owned prior to marriage or since acquired by inheritance or gift. However, we are not permitted conjecture. We must interpret a statute according to its terms when unambiguous. Quick v. Utotem of Alabama, 365 So.2d 1245 (Ala.Civ.App.1979).

The trial court found as fact that "all of the assets presently owned by the husband have been shown by the testimony adduced in this cause to be assets held prior to the marriage of the parties or to have been acquired in exchange for assets owned by the husband prior to the marriage." It reached this conclusion after extensive factual finding as to how the initial fortune of the husband was accumulated and tracing its exchange, trading, sale and conversion over the ten-year marriage. For the purpose of our decision for reversal, it is not necessary for us to decide whether the legislature intended that property owned prior to the marriage which has been traded, exchanged, sold, invested, added to, taken from or otherwise used and changed in form may be traced through the years and remain "property acquired prior to the marriage." The proposition presents interesting aspects which we do not now decide.

We do decide that the trial court erred in its application of the statute, because the facts are preponderant that "such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage."

It appears rather axiomatic, considering a marriage in its common law aspect, that the activities by which a husband seeks to manage his estate, use the property for growing cattle and crops, produce goods and income, improve it, and increase its value, are activities engaged in for the common benefit of his family and marriage partner. The husband did all these things during the marriage. For more than half the marriage, the only funds received by and used for the benefit of the family were either income from or sale of the husband's estate. As the trial court pointed out in its findings, the husband's estate actually diminished in net value due to spending of the family, bad investments, taxes and loss of market value of stocks.

Though the husband was an attorney by profession, he had no material income-producing practice until placed on salary and expenses as a staff attorney for The Southern Poverty...