Hardwick v. Hardwick

• Decision Date: 28 May 1975
• Citation: 55 Ala.App. 156,314 So.2d 76
• Parties: Hal Jeanne HARDWICK v. Macon N. HARDWICK. Civ. 487.
• Court: Alabama Court of Civil Appeals

Page 76

314 So.2d 76

55 Ala.App. 156

Hal Jeanne HARDWICK v. Macon N. HARDWICK.

Civ. 487.

Court of Civil Appeals of Alabama.

May 28, 1975.

Ralph E. Slate, Decatur, for appellant.

John A. Caddell, Decatur, for appellee.

BRADLEY, Judge.

Appellee-husband commenced these proceedings by filing a complaint in the Circuit Court of Morgan County seeking a divorce from appellant-wife on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage. There was an answer and cross-bill filed by the wife, and the husband later answered the cross-bill. After a hearing, the court, sitting without a jury, dissolved the bonds of matrimony due to the irretrievable breakdown of the marriage. The decree also awarded the house, all the household furnishings, and a 1969 Pontiac automobile to the wife, and $150 per week to her as periodic alimony.

The appellee filed a motion for new trial. On the date set for the hearing, additional evidence was taken and a modified decree was rendered. In this decree the court made an award of alimony in gross as follows: '$40,000 payable in four yearly installments of $10,000. The first installment was due within two months and the three remaining installments would bear interest at eight percent per annum. The provisions of the prior decree awarding the house, household furnishings and automobile to the wife were ratified by this decree. The appeal to this court is from the original decree and the decree rendered after the hearing on the motion for new trial.

Even though appellant filed six assignments of error, the thrust of her argument in brief is that the trial court erred in failing to award periodic alimony.

The award of alimony is discretionary with the trial court, but the exercise of such discretion is judicial, must not be arbitrary, and is reviewable on appeal. Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150, cert. den. 291 Ala. 782, 280 So.2d 155; Body v. Body, 47 Ala.App. 443, 256 So.2d 184.

The decree of the trial court provided that the award to the wife was alimony in gross. Appellant contends that the award was a property settlement rather than an award of alimony.

The indicia of alimony in gross are: (1) such alimony must have been unequivocally provided for in the decree; (2) the time of payment and the amount must be certain; and (3) the right to alimony must be vested. Montgomery v. Montgomery, 275 Ala. 364, 155 So.2d 317. It has also been held that specific property of the husband can be awarded as alimony. Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808.

The trial court quite obviously intended that its award to the appellant be construed as alimony in gross, for it very plainly provided:

'(T)hat an award of alimony in gross should be made in this cause, including the house and lot, the furniture, and the automobile . . . plus a fixed sum of money to be paid in installments, rather than temporary or periodic alimony payments and that only alimony in gross should be award(ed) to her,

'. . . (S)aid alimony in gross here awarded to the defendant is vested in her, is not subject to modification and will survive the death of the plaintiff, . . .'

As can be seen from the cited portion of the decree, the criteria for alimony in gross as set out above has been met in this case.

The question now presented for resolution is whether the trial court arbitrarily refused appellant periodic alimony.

As has been said many times before, this court reviews the judgment of a trial court rendered after a hearing ore tenus as if it were a jury verdict, and we will reverse only where, after considering all the evidence, the judgment is plainly and palpably wrong. Fultz v. Fultz, 47 Ala.App. 502, 257 So.2d 362.

The evidence reveals that appellant and appellee had been married...