Eubanks v. Eubanks
| Decision Date | 27 February 1974 |
| Citation | 52 Ala.App. 224,291 So.2d 159 |
| Parties | William Allen EUBANKS v. Marjorie Ann EUBANKS. Civ. 255. |
| Court | Alabama Court of Civil Appeals |
Dominick J. Matranga, Mobile, for appellant.
James E. Atchison and Charles S. Street, Mobile, for appellee.
The appellee-wife brought suit for divorce against appellant-husband in the Mobile County Circuit Court on the ground of incompatibility of temperament. In addition to the divorce, the wife sought custody of the parties' two minor children, support for herself and the children, the home owned jointly by the parties, the furniture located in the homeplace, and a reasonable attorney's fee.
Issue was joined; testimony on the bill of complaint proceeded Ore tenus; and thereafter, the trial court entered a final decree of divorce dissolving the bonds of matrimony; awarded custody of the children to the wife with reasonable and specific visitation rights given to the husband; required the husband to pay $40 per week as child support and maintain certain insurance policies with the children as beneficiaries thereof (hospital and life); ordered the husband to pay existing medical bills incurred by the children; awarded an automobile to the wife and an automobile to the husband; ordered the husband to convey his interest in the homeplace to the wife with the wife to assume the indebtedness thereon; awarded $2,800 to the husband from a joint savings account and awarded the wife approximately $4,500 from the same joint savings account; and, additionally, awarded the wife a $250 attorney fee.
From the above decree the husband has taken this appeal, and contends that the trial court erred to reversal in that the evidence was 'insufficient to support the allocation of jointly owned assets in the manner set forth in the decree of divorce.' Put another way, it is appellant's contention that the trial court abused its discretion in awarding the jointly owned homeplace and the majority of the savings account to the wife.
The pertinent tendencies of the evidence reveal the following: The parties were married in 1958 and two children were born of the union; a boy now twelve years of age and a girl eight years of age. Both children were hyperactive with the girl being borderline dyslexic. Additionally, both were on medication for their medical problems.
The husband was a long time employee of International Paper Company with gross wages of approximately $165--$250 per week, with an apparent average of approximately $170. Additionally, the wife worked, earning approximately $250 per month.
Apparently, the entire assets of the parties prior to their separation was a home which they purchased and was jointly owned. Originally, the home was purchased for $18,000--18,500. The parties were able to make the down payment by applying the proceeds from the sale of another home and money obtained from the mother of the husband. The wife testified the $2,500 obtained from her mother-in-law was a gift and the husband testified the money was a loan. However, there was no evidence of the indebtedness such as a note. The mortgage on the home at the time of trial had a balance of approximately $13,000 owing on it and the monthly payments on the mortgage were $106.42. The present value of the home was placed at between $25,000 and $30,000.
The testimony was uncontroverted that the husband left the wife and children with the parties living separate and apart since August of 1972. Trial was held in May of 1973.
Additionally, the evidence shows that while the parties were separated with the wife and children living in the home, the home burned. The fire caused extensive damage to the structure itself and to the personal property contained therein. Thereafter, the parties' insurance carrier payed some $10,000 for loss of personal property and $8,000 for the damage to the structure. As we perceive the testimony, the structure has been repaired and many items of personal property have been replaced or refurbished, with some items still remaining to be replaced. The money placed in the joint savings account and distributed by the court, as set out herein above, was the leftover proceeds of the insurance money.
In this case, as in all cases where the judgment or decree is entered by the trial court after the hearing of testimony Ore tenus, such judgment or decree is presumed correct and will be reversed on appeal only if, after consideration of all the...
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...such discretion was plainly and palpably abused. See generally Marr v. Marr, 383 So.2d 194 (Ala.Civ.App.1980); Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974). Periodic alimony: Hilton v. Hilton, 385 So.2d 640 (Ala.Civ.App.1980); Dunnam v. Dunnam, 381 So.2d 654 (Ala.Civ.App.1980).......
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