Hicks v. Hicks
| Decision Date | 12 June 1974 |
| Citation | 296 So.2d 180,52 Ala.App. 586 |
| Parties | Noah HICKS v. Shirley Ann HICKS. Civ. 321. |
| Court | Alabama Court of Civil Appeals |
John F. Proctor, Scottsboro, for appellant.
Jack Livingston, Scottsboro, for appellee.
Appellee-wife brought suit for divorce against appellant-husband in the Jackson County Circuit Court on the ground that the husband had become addicted to the habitual use of alcohol subsequent to their marriage. Appellee further alleged that as a result of appellant's habitual 'drunkenness,' there had been an irretrievable breakdown of the marriage.
In addition to the divorce, appellee sought custody of the parties' four minor children; support for the children; the home which was jointly owned by the parties; and a reasonable fee for her attorney.
By answer and cross-bill, issue was joined between the parties and testimony was taken Ore tenus.
Thereafter, on October 17, 1973, the trial court entered a final decree of divorce dissolving the bonds of matrimony for and on account of 'habitual drunkenness' by the appellant-husband. The lower court further awarded custody of the four minor children to the wife with certain specific visitation rights granted to the husband; required that the husband pay $235 per month child support; ordered the husband to convey his interest in the homeplace to the wife, with the wife to assume the mortgage indebtedness thereon. Additionally, the lower court awarded appellee's attorney a $250 fee which was to be paid by appellant.
Able counsel for appellant-husband contends by appropriate assignments of error that the trial court erred to reversal in divesting the husband of his interest in the homeplace; in its award of child support; and in its award ordering appellant to pay appellee's attorney's fee.
The pertinent tendencies of the evidence reveal the following:
Appellee testified that the parties were married on December 20, 1958, in Detroit, Michigan. In 1968, they moved to Bridgeport, Alabama, where they bought some property and built a house for some $8,500. Appellee testified she had always worked one or two jobs since they had been married to help pay the bills and to go toward paying for the home which they built. She stated that she was presently employed as credit manager at Tri-Cities Clinic at the rate of $3 per hour and her take-home pay was usually $175--$200 per week. Appellee stated that she could make the mortgage payments on the house if certain social security payments the husband receives were awarded to her.
The appellee testified as to her husband's drinking problems, stating that he drinks constantly and continuously and that he is an alcoholic and has been for five years. There was also testimony by appellant-husband's brother that appellant drinks too much and is 'the world's worst.'
Appellant testified that he worked approximately eleven months after they moved to Bridgeport at Avondale Mills, but had to quit as a result of injuries caused by a car accident. He stated he has not been able to work since the accident, and that he is presently receiving 100% Social Security and VA disability payments. The combined total received from these sources comes to $520 per month, of which amount $238 is received for his having four children. Appellant further stated that the house was now worth $20,000--$25,000, and has a $2,000 mortgage on it. He also stated that he and his wife contributed jointly toward paying for it.
Both the appellee and appellant testified that they have no other assets except the house which they built and have been jointly contributing for payment of the mortgage thereon.
In addition to the above, there was some testimony indicating that appellant has a one-third interest in a farm which is allegedly valued at $100,000 subject to his sixty-one or sixty-two year old mother's life estate.
There was testimony that after their separation, appellee and the children had been living in the homeplace, and the appellant was living with his mother.
At the outset, we note that where the judgment or decree is entered by the trial court after a hearing Ore tenus, such judgment or decree is presumed correct and will be reversed on appeal only if, after consideration of all the evidence and all reasonable inferences to be drawn therefrom, we conclude that it is plainly and palpably wrong. McDonald v. McDonald 280 Ala. 299, 193 So.2d 519; Harrison v. Harrison, 279 Ala. 675, 189 So.2d 471; Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342; Body v. Body, 47 Ala.App. 443, 256 So.2d 184.
Counsel for appellant cites Phillips v. Phillips, 221 Ala. 455, 129 So. 3, and Frazier v. Frazier, 273 Ala. 53, 134 So.2d 205, and asserts that under those cases, an award of alimony in gross to the wife is usually from one-half to one-third of the husband's estate or less. Appellant further states that the husband is entitled to retain some fair share of his estate and to an opportunity to provide some security for himself....
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