Ex parte Walters

• Decision Date: 26 April 1991
• Citation: 580 So.2d 1352
• Parties: Ex parte Marita G. WALTERS. (Re Marita G. WALTERS v. John Edward WALTERS). 1900308.
• Court: Alabama Supreme Court

Page 1352

580 So.2d 1352

Ex parte Marita G. WALTERS (Re Marita G. WALTERS v. John Edward WALTERS).

1900308.

Supreme Court of Alabama.

April 26, 1991.

W. Gregory Hughes, Mobile, for appellant.

Peter F. Burns and Randall W. Nichols of Burns & Mackey, Mobile, for appellee.

MADDOX, Justice.

The wife appealed from a trial court's ruling in a divorce case awarding custody of the couple's minor daughter to the husband. The husband appealed from an award to the wife of attorney fees in violation of the terms of an ante-nuptial agreement entered into between them. The Court of Civil Appeals upheld the custody award, but reversed the award of attorney fees. 580 So.2d 1350 We affirm as to both issues.

This case arose from the following facts.

On December 4, 1989, a final judgement of divorce was entered between John Edward Walters ("Edward") and Marita G. Walters ("Rita"). Pursuant to this judgment, custody of the couple's minor daughter was awarded to Edward. In addition, the trial court awarded Rita $10,000 in attorney fees.

In divorce cases, the Alabama Court of Civil Appeals has held that, where evidence is presented ore tenus, a child custody determination is committed to the sound discretion of the trial court, and will not be reversed on appeal absent a finding that the determination is so poorly supported by the evidence as to be plainly and palpably wrong. Sayles v. Sayles, 495 So.2d 1131 (Ala.Civ.App.1986); Lucero v. Lucero, 485 So.2d 347 (Ala.Civ.App.1986); and Hester v. Hester, 460 So.2d 1305 (Ala.Civ.App.1984). This standard recognizes the trial court's unique position to observe the parties and to hear their testimony. Smith v. Smith, 448 So.2d 381 (Ala.Civ.App.1984). This Court finds that this is a correct statement of the law as it now exists, and that Rita has failed to show that the trial court's ruling was plainly and palpably wrong.

The trial court heard testimony from both the mother and the father concerning the child. In its opinion, the Court of Civil Appeals set out some of the evidence it considered in affirming the judgment of the trial court:

"The father has a steady job. On the other hand, the mother lost three jobs during the parties' marriage. Evidence was presented that indicated the mother committed adultery during the parties' marriage. Further, one of the experts who testified in the case concluded that the father would provide the more stable environment for the child. In view of this evidence, we cannot say the court erred in granting custody of the child to the father."

In addition, the trial court appointed a licensed clinical psychologist to evaluate the parties; that evaluation supported the custody determination. We conclude that the trial court's custody determination was adequately supported by the record.

We now address Edward's cross-appeal.

Rita asserts that Edward did not properly preserve the issue of attorney fees for review. In support of this contention, she cites us to Walker v. Dutton, 401 So.2d 32 (Ala.1981). However, we find no merit to this argument. In Walker, we held:

"Rule 46, ARCP, requires the party adversely affected to apprise the trial court of his objections and the grounds for such objections. C. Gamble, McElroy's Alabama Evidence, § 429.01 (3d ed. 1977). Plaintiffs made no objections to the trial court's rulings; as a consequence, no error was preserved in that regard."

401 So.2d at 32. However, that is not the case here. The record shows that Edward adequately informed the trial court of both his objection to the award of attorney fees and his grounds for that objection. ¹

Approximately one month before Edward and Rita were married, they entered into an ante-nuptial agreement, which, in pertinent part, provides:

"6. Each party does hereby WAIVE any rights to alimony, either periodic or gross, support, division of property and claim for attorney fees from the other party in event of dissolution of the marriage by divorce." (Emphasis added).

The trial court made no specific findings of fact, but the court either found that the ante-nuptial agreement was not properly entered into and, therefore, the court failed to give it effect when it awarded attorney fees to Rita, or the court found that the agreement was valid, but believed that it was within its discretion to award attorney fees outside of this agreement. The rule of appellate review is that a trial court's judgment that is based upon ore tenus evidence is presumed correct and will be reversed only if the judgment is found to be plainly and palpably wrong. Furthermore, where the trial court does not make specific findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous. Knox Kershaw, Inc. v. Kershaw, 552 So.2d 126 (Ala.1989).

We first address the validity of the ante-nuptial agreement.

At the outset, we note that ante-nuptial agreements have been held valid in Alabama. Mixon v. Mixon, 550 So.2d 999 (Ala.Civ.App.1989); Ruzic v. Ruzic, 549 So.2d 72 (Ala.1989); Woolwine v. Woolwine, 549 So.2d 512 (Ala.Civ.App.1989); and Barnhill v. Barnhill, 386 So.2d 749 (Ala.Civ.App.1980), cert. denied, 386 So.2d 752 (Ala.1980). In determining whether a specific ante-nuptial agreement is valid, the Court of Civil Appeals set out in Barnhill an "either/or" test; we find no error in this approach.

In Barnhill, the Court of Civil Appeals held that the party attempting to rely on an ante-nuptial agreement must show:

" that the consideration was adequate and that the entire transaction was fair, just and equitable from the other person's point of view, or that the agreement was freely and voluntarily entered into by the other party with competent independent advice and full knowledge of her interest in the estate and its approximate value."

386 So.2d at 751.

We find that there was evidence from which the trial court could have found that the Walters' ante-nuptial agreement was valid under either of these requirements. In Barnhill, the Court of Civil Appeals held that marriage, under appropriate circumstances, may be sufficient consideration for an ante-nuptial agreement. In this case, there was evidence that Edward had told Rita that he would not marry her if she did not sign the ante-nuptial agreement. Rita had approximately one month to consider the agreement and decide if she wished to sign it. In addition, Rita had lived with Edward for approximately six months before she signed the ante-nuptial agreement. This was sufficient time for her to obtain at least a general opinion as to the extent of Edward's estate. See Woolwine and Barnhill. ²

There is nothing to indicate that the agreement was not fair, just, and equitable from Rita's viewpoint; or that the marriage was not sufficient consideration for the agreement. In addition, Rita had ample time to obtain independent advice if she did not understand the terms of the agreement. Whether she obtained this advice...