Hewitt v. Hewitt

• Decision Date: 06 May 1994
• Parties: Judy HEWITT v. G.W. HEWITT. AV92000017.
• Court: Alabama Court of Civil Appeals

Page 1382

637 So.2d 1382

Judy HEWITT v. G.W. HEWITT.

AV92000017.

Court of Civil Appeals of Alabama.

May 6, 1994.

John Gunn, Roanoke, for appellant.

James S. Hubbard, Anniston, for appellee.

PER CURIAM.

After almost 30 years of marriage, G.W. Hewitt sued, and Judy Hewitt counterclaimed, for divorce. On September 21, 1992, following an ore tenus hearing, the trial court divorced the parties, effecting a property division. The wife appeals, contending that the trial court abused its discretion in its division of property and in failing to award periodic alimony. We agree and reverse and remand.

At the time of the divorce, the husband and wife were 67 and 51 years old, respectively, and both were totally and permanently disabled. The four children of the marriage were adults.

At the time of the marriage, the husband and wife were 35 and 18 years old, respectively. Early in the marriage, the husband deeded property that he had owned before the marriage to himself and his wife as joint tenants with the right of survivorship. The parties also acquired substantial property during the marriage and at the time of the divorce they owned a total of 825 acres of realty, valued at between $553,900 and $637,500. Other major assets of the marriage included the marital home, valued at between $115,000 and $118,000, savings, and a life insurance policy, valued at $121,198.62. The parties also owned 40 head of cattle, certain farm and other equipment, and substantial household furnishings. Timber on their land was valued at $142,000.

There was lengthy contested testimony about the conduct of the parties during their marriage. Most of that testimony concerned the wife's behavior shortly before the parties separated, and the wife's alleged abusive discipline of the children when they were young. The trial court held:

"Clearly, fault in bringing on the final separation cannot be blamed totally on Mrs. Hewitt. However, the Court is satisfied that Mrs. Hewitt's conduct during the course of the marriage was the primary cause of the dissolution of the marriage. Both of the parties worked very hard during their marriage. Unfortunately, both of them are unable to work and each receives a disability check."

The wife was receiving $162 in Social Security benefits and the husband was receiving $440 in Social Security benefits and $1140 in workmen's compensation benefits.

The final judgment recognized that the property acquired before the marriage (some 425 acres) was used for the benefit of the parties and that the marital home was located on it. The husband was awarded all rights, title, and interest in the real property that he had owned before the marriage. The wife was awarded $86,150 as her interest in all of the remaining realty. The order stated, "The above disposition of property is specifically designated as a property division. Based on the testimony, the Court will not make an award of either alimony in gross or periodic alimony." The wife received $60,599.31 as her half of the savings.

The wife first contends that the trial court abused its discretion in giving the husband all of the realty, including the marital home. She argues that the property was jointly owned and was, therefore, subject to equitable distribution.

We recognize the presumptions of correctness following ore tenus proceedings, and we recognize that, 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). Nevertheless, from a careful review of the lengthy record we conclude that we must reverse the property award in this case.

The exercise of discretion by the trial court is based upon equitable principles and is thus subject to review on appeal if a party contends that the result is arbitrary and unjust. Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App.1980). Here, the evidence failed to establish that the wife's conduct was sufficient to preclude her from an equitable share of the marital property. During the almost 30-year marriage, the wife reared four children, while operating a beauty shop and helping to manage a family store. She also contributed in making improvements to the original marital home...