Ex parte Killough

• Decision Date: 08 May 1998
• Parties: Ex parte Margaret Elizabeth KILLOUGH. (Re Margaret Elizabeth Killough v. William Forrest Killough).
• Court: Alabama Supreme Court

728 So.2d 589

Ex parte Margaret Elizabeth KILLOUGH.

(Re Margaret Elizabeth Killough v. William Forrest Killough).

1962086.

Supreme Court of Alabama.

May 8, 1998.

Rehearing Denied July 17, 1998.

John Gunn, Roanoke, for petitioner.

Barry N. McCrary, Talladega, for respondent.

SHORES, Justice.

Margaret Elizabeth Killough and William Forrest Killough were married for 17 years and had one daughter. It was the second marriage for both. They were divorced in Talladega County on September 6, 1996. The wife appealed from the trial court's final judgment, which failed to award or set aside to her periodic alimony, but awarded her the sum of $100,000 as alimony in gross. The Court of Civil Appeals affirmed, without opinion, and denied the wife's application for rehearing. Killough v. Killough, 723 So.2d 112 (Ala.Civ.App.1997) (table). We granted the wife's petition for certiorari review.

The award of alimony and the division of property are matters within the sound discretion of the trial court, and the trial court's ruling on those matters will not be reversed except for palpable abuse of that discretion. Wiggins v. Wiggins, 498 So.2d 853 (Ala.Civ.App.1986). A trial court's judgment is presumed to be correct if it is supported by the evidence. Nowell v. Nowell, 474 So.2d 1128 (Ala.Civ.App.1985); McCoy v. McCoy, 549 So.2d 53, 57 (Ala.1989); McCrary v. Butler, 540 So.2d 736 (Ala.1989); Jones v. Jones, 470 So.2d 1207 (Ala.1985); Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 12-13 (Ala.1989); Nunnery v. Nunnery, 558 So.2d 944 (Ala.Civ.App.1990). The trial court's judgment is subject to revision if it is plainly or palpably wrong. Seamon v. Seamon, 587 So.2d 333 (Ala.Civ.App.1991). In dividing marital property and awarding alimony, the trial court should consider the following factors: (1) the earning abilities of the parties; (2) their probable future prospects; (3) their ages, health, and station in life; (4) the duration of the marriage; and (5) the conduct of the parties with reference to the cause of divorce. Paulson v. Paulson, 682 So.2d 1060, 1063 (Ala.Civ.App.1996), citing Echols v. Echols, 459 So.2d 910, 911-12 (Ala.Civ.App.1984).

The wife argues that the trial court did not consider all the required factors, specifically the earning capacities and future prospects of the parties, their ages and health, the length of the marriage, the standard of living the parties enjoyed during the marriage, and the conduct of the parties. She contends that the trial judge's failure to consider these factors is evident from the fact that the trial judge failed to award her periodic alimony or to reserve the right to award periodic alimony in the future. In addition, the final judgment made no provision for a place for her and the parties' handicapped child to live. In fact, the final judgment provides that the wife and daughter must vacate the rental house in which they were living at the time of the hearing.

The wife also argues that the trial court's award of alimony in gross was plainly and palpably wrong, because alimony in gross represents the present value of the wife's inchoate rights in the marital estate, dower, homestead, and distributive share that is payable out of the husband's estate as it exists at the time of the divorce. Fanning v. Fanning, 686 So.2d 333 (Ala.Civ.App.1996), citing Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). She contends that the alimony in gross of $100,000 is plainly wrong in light of the size of the marital estate.

The parties were married in 1979 and have one daughter. The daughter has physical disabilities resulting from a horrible accident that occurred when she was two years old, an accident in which her father ran over her with his tractor.

At the time of the hearing, the husband was 66 years old. He retired from the United States Postal Service in 1972 and receives $800 per month in retirement benefits from the Postal Service. The husband also receives Social Security benefits in the amount of $700 per month and receives $300 per month as a director of a local bank. In addition, at the time of the hearing he was one of three partners in KWB Company. He agreed that he had received $2,100 from KWB Company in 1996. The husband is a past president of the Alabama Cattlemen's Association, and he also once served a full term as the elected probate judge of Talladega County, after having been appointed to replace the preceding probate judge. He was once in the United States Army, and he also owned a store in the community of Alpine for 16 years. During the marriage, the husband was also employed in management with Southern EXO Chemicals Company. At the time of the divorce hearing, the husband was operating a cattle farm. The husband testified that he suffers from diabetes, back trouble, and congestive heart failure.

The wife is a registered nurse. At the date of the hearing, she was 56 years old. She was at that time working at two jobs; she was employed by Carradale Lodge, earning $16,500 annually, and she had a part-time job at the Alabama Institute for Deaf and Blind, earning an hourly wage when school was in session. At the time of the marriage, the wife was employed by the State of Alabama Health Department as a coordinator/supervisor of family planning. In 1980, she ceased her work for the state, at her husband's request, and began working on the farm. She withdrew any retirement benefits she had at that time, also at her husband's request. She testified that she had a heart problem in 1994; that she was hospitalized for an irregular heartbeat and had a heart attack.

The wife testified that she fled from the home after an incident in which she claims the husband physically assaulted their daughter. The wife described the bruises on the child. The child did not testify. The husband characterized the incident as simply a "spanking." There was evidence that the Department of Human Resources investigated the matter and did not find child abuse. The wife also testified that the husband watched pornographic videos in the home, and that she had asked him not to do so,...