Fowler v. Fowler

• Decision Date: 11 February 1994
• Parties: Jonas Keith FOWLER v. Deanna N. FOWLER. AV92000481, AV92000509.
• Court: Alabama Court of Civil Appeals

Page 433

636 So.2d 433

Jonas Keith FOWLER v. Deanna N. FOWLER.

AV92000481, AV92000509.

Court of Civil Appeals of Alabama.

Feb. 11, 1994.

Rehearing Denied March 18, 1994.

Dinah P. Rhodes of Blankenship & Rhodes, P.C., Huntsville, for appellant.

William P. Burgess, Jr., Huntsville, for appellee.

THIGPEN, Judge.

This is a divorce case.

In February 1992, Deanna N. Fowler (wife) sued for a divorce from Jonas Keith Fowler (husband), alleging incompatibility of temperament. Following ore tenus proceedings wherein the court heard evidence regarding the husband's conduct, the court, inter alia, divorced the parties on the ground of adultery, divided the property, and awarded the wife periodic alimony and attorney fees. The husband's post-judgment motion was denied by operation of law. Rule 59.1, A.R.Civ.P. The husband appeals, and the wife cross-appeals.

The husband argues that the trial court erred in divorcing the parties on the ground of adultery and that it improperly considered the alleged adultery in making its property and alimony awards. The wife argues that the trial court erred in failing to require the husband to designate the wife as the sole beneficiary for survivor annuity benefits on the husband's retirement accounts.

We note at the outset that when a trial court hears ore tenus evidence in a divorce proceeding, its judgment is presumed correct if it is supported by the evidence. Waid v. Waid, 540 So.2d 764 (Ala.Civ.App.1989). Absent an abuse of discretion, we are not permitted to substitute our judgment for that of the trial court. Beckwith v. Beckwith, 475 So.2d 575 (Ala.Civ.App.1985).

The husband initially argues that the trial court erred in granting the divorce on the ground of adultery, because he claims the evidence was insufficient to prove adultery. "While it is difficult and somewhat rare to prove adultery by direct means, the charge of adultery in a divorce case may be proven by circumstantial evidence which creates more than a mere suspicion." Billington v. Billington, 531 So.2d 924, 924 (Ala.Civ.App.1988). Proof to support the charge of adultery "must be sufficiently strong to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference." Boldon v. Boldon, 354 So.2d 275, 276 (Ala.Civ.App.1978).

At the time of trial, the husband was 58 years old and the wife was 52 years old, and they had been married for approximately 32 years. The wife alleged that the husband was romantically involved with a 36-year-old co-worker; however, the husband and the co-worker maintained that they were merely "good friends." Telephone records admitted at trial disclosed numerous and lengthy calls between the husband and this co-worker, occurring almost daily. The husband testified that he had made several long-distance, collect calls to this co-worker. He further testified, and telephone records reflected, that the co-worker had called the husband while he was on business out of state. The telephone records disclosed that many of the calls were made at unusual times and from public telephones. The husband admitted to making several long distance telephone calls to the co-worker from the parties' lake cabin, while attending an out-of-state football game with his wife, and while visiting his parents out of state. The husband admitted while testifying that when his wife initially confronted him regarding the calls, he denied having telephone contact with the co-worker and told the wife that she "was crazy."

Testimony indicated that the co-worker had visited the parties' lake home and their marital residence. The husband testified that he had been to the co-worker's apartment on three occasions and that he had given her flowers and a gift. The wife testified that the husband had rejected her sexually and "in every way" beginning in the spring of 1991. She testified that he would not talk with her, that he would not let her get in his car or eat meals with him, and that he insisted on going to their lake house without her.

A licensed professional counselor who had counseled the parties testified that the relationship between the husband and the co-worker was "inappropriate" and "beyond just a normal business-office relationship" and that the husband was not "up front" with him regarding the extent of the relationship. The counselor further testified that he had recommended that the husband discontinue the frequent telephone calls, but that, although the husband promised to do so, he did not. The counselor also testified that the number of telephone calls indicated by the telephone records far exceeded the number admitted to him.

The husband testified that there had been sexual difficulties in the marriage for over 20 years, and he said the wife had abnormal sexual problems that caused an unsatisfactory sexual relationship. The wife's gynecologist testified that he had treated the wife for many years, and that he had no records indicating that the wife suffered from any sexual dysfunction. He testified that he had found nothing abnormal or unusual. The trial court found that the husband's allegations regarding the wife's sexual dysfunction were "wholly without merit."

Mere evidence of numerous telephone calls alone is insufficient to prove adultery. See Hooker v. Hooker, 593 So.2d 1023 (Ala.Civ.App.1991). Here, the trial court found that "the overwhelming weight of the evidence, cumulative in nature, leads to no other conclusion" than that the husband had committed adultery. In addition to the numerous telephone calls, the testimony in this case established that the husband and his co-worker did associate outside of the office, that the parties' counselor considered the relationship between the husband and his co- worker inappropriate, that the husband had rejected his wife during the period in which the telephone calls occurred, and that the marriage had deteriorated.

While that evidence did create a suspicion of adultery, we cannot find that that evidence leads "to the conclusion of adultery as a necessary inference." Boldon at 276. Although the wife presented evidence regarding the alleged adultery of the husband, her complaint alleged incompatibility of temperament as the ground for divorce. While there was not sufficient evidence to support the claim of adultery, the evidence does support a finding of incompatibility. See Nickerson v. Nickerson, 467 So.2d 260 (Ala.Civ.App.1985). Therefore, we reverse the trial court's judgment, and remand this cause, with instructions for the trial court to grant the divorce on the ground of incompatibility.

Next, the husband argues that the trial court erroneously considered the alleged adultery in making its awards. The trial court, inter alia, awarded the marital residence and one condominium to the wife, and awarded the lake home and the other condominium to the husband; the court further awarded $1000 per month in periodic alimony to the wife, as well as her attorney fees. The husband contends that the trial court based this award on the ground of adultery, and that this was error because, he argues, the...