Hardy v. Hardy

• Decision Date: 21 October 1970
• Docket Number: 4 Div. 23
• Citation: 240 So.2d 601,46 Ala.App. 253
• Parties: Charles A. HARDY v. Willa Cutchen HARDY.
• Court: Alabama Court of Civil Appeals

Page 601

240 So.2d 601

46 Ala.App. 253

Charles A. HARDY v. Willa Cutchen HARDY.

4 Div. 23.

Court of Civil Appeals of Alabama.

Oct. 21, 1970.

Farmer & Farmer, Dothan, for appellant.

C. R. Lewis, Dothan, for appellee.

THAGARD, Presiding Judge.

From a decree of the Houston County Court of Houston County, Alabama, granting a divorce from bed and board to complainant, appellee here, her husband prosecutes this appeal.

In addition to the divorce from bed and board the decree awarded to the wife the custody of the four minor children of the parties, an allowance of $300 per month against the husband for the maintenance of herself and minor children, and the use and benefit for herself and minor children of a Chevrolet automobile; and it ordered the respondent to deliver to complainant, as additional support and maintenance for herself and minor children, the peaceable possession of the dwelling-store combination in which the family had resided prior to the separation, 'together with all fixtures, furnishings, stock of goods and inventory, equipment and personal property situated therein or thereon for the full and exclusive use, benefit, and enjoyment of the Plaintiff and said children * * *; and that such delivery of said property to the Plaintiff shall in no way be deemed or construed to be alimony to the Plaintiff or a property settlement or property division between the Plaintiff and the Defendant in this cause.'

The testimony was taken orally before the court. The respondent offered no rebuttal testimony and, though present in court, elected not to testify, but there was a stipulation as to what he would have testified as to his property holdings and income. Appellant's counsel with commendable candor concede that the court was justified in granting the divorce from bed and board to the wife. The court in its decree assigned adultery and cruelty as grounds for the divorce.

There were five numbered assignments of error but in essence they were three, viz: (1) The award for alimony and maintenance was excessive; (2) The award of the possession and use of the home and store building and stock of merchandise and household goods, and the automobile, and the requirement that the respondent continue to pay the premiums on hospital insurance and on a $25,000 life insurance policy was not only excessive but illegal as being in the nature of a property division; and (3) The award of $1,600 as attorney's fee for Plaintiff's attorney was excessive.

The parties were married on May 3, 1947, and lived together until August 31, 1969, at which time the wife and four minor children moved out because of serious misconduct on the part of the husband. Five children, the eldest of whom had married and moved out before the separation of the parents occurred, were born of the marriage.

Apparently, the husband owned a country store at the time of his marriage. After the marriage the wife worked in and for the most part managed the store continuously, except for taking time out to give birth to five babies, while the husband farmed, traded in livestock and land, and did custom work for other farmers. The couple prospered, so that at the time of the separation the husband had an admitted net worth of $76,603, and there were tendencies of the evidence indicating that his valuations were low.

The family had a better than average living standard for a farm family. Their dwelling, which was attached to the store, consisted of three bedrooms, two baths, living room, dining room, breakfast room, and a completely modern kitchen. There were wall to wall carpets throughout. There were central heating and air conditioning.

When the wife and four children moved out of the family home they moved into a rented one-bedroom, one-bathroom, mobile home for which the wife paid $90 per month, and that is where they were living when the testimony was taken.

As hereinabove mentioned, the misconduct of the husband was of a serious nature. There was much circumstantial evidence of his having had an adulterous relationship with another woman during the last year or so before the separation, and that after the separation his paramour frequently slept-in with him in the home that had been vacated by his wife and children. There was undisputed evidence of brutal attacks upon the person of his wife and of threats to kill her or have her killed. His treatment of his family during the last year or two before the separation, as disclosed by the undisputed testimony, was most reprehensible.

Appellant argues vigorously that the allowance for the maintenance of the wife and four minor children is excessive, saying that separate maintenance must come from the income of the husband and not from the corpus of his estate, and citing Caine v. Caine, 262 Ala. 454, 79 So.2d 546; Clisby v. Clisby, 160 Ala. 572, 49 So. 445; Rearden v. Rearden, 210 Ala. 129, 97 So. 138 and Bailes v. Bailes, 216 Ala. 569, 114 So. 185. According to appellant's brief, his income tax return for 1968 showed a net income of less than $700 and his 1969 return showed a net income of slightly more than $10,000. We read the copy of his 1969 return in the transcript to show a loss of more than $10,000. However, there is some evidence of unreported income and the testimony of the wife was that the family lived out of the store and its cash register and, as far as she knew, no record was made or kept of the withdrawals. Furthermore, the returns reflected rather large depreciation allowances that did not in the years in question reflect cash disbursements. We do not regard the income tax returns as very reliable indicators of the husband's true income. However, the state of the evidence as to appellant's income is so unsatisfactory that we are inclined to go along with appellant's request that the amount of the monthly alimony for the maintenance of the wife and children should be reduced to $200 per month, unless the appellee wishes to offer additional evidence in the court below of appellant's income. In so doing, we take into account that, whatever may have been appellant's income in the past, a part of that income was derived from the operation of the store, and that source of income was passed by the decree of the court to the wife and children.

The next assignment of error argued by appellant was that the award of the possession of the dwelling-store combination and the fixtures and stock of merchandise, and likewise the possession of the automobile to the wife for the use and...