Hughes v. Hughes

• Decision Date: 11 January 1978
• Citation: 362 So.2d 910
• Parties: Raymond HUGHES v. Madge J. HUGHES. Civ. 1204.
• Court: Alabama Court of Civil Appeals

Page 910

362 So.2d 910

Raymond HUGHES v. Madge J. HUGHES.

Civ. 1204.

Court of Civil Appeals of Alabama.

Jan. 11, 1978.

Rehearing Denied Feb. 15, 1978 and March 22, 1978.

J. Gary Pate of Hobbs, Copeland, Franco & Screws, Montgomery, for appellant.

Joe S. Pittman of Pittman, Whittaker & Hooks, Enterprise, for appellee.

BRADLEY, Judge.

This appeal follows a decree entered by the Circuit Court of Coffee County divorcing the parties on the basis of incompatibility of temperament. Appellant-husband contends that the trial court committed reversible error when it ordered him: (1) to continue to pay child support "until further orders of the (trial) court;" (2) to pay an excessive amount of alimony; and (3) to pay his wife's attorney's fees. In addition, the husband argues that Title 30, chapter 2, section 51, Code of Alabama 1975 is unconstitutional in that it permits an award of alimony solely to a wife. And finally, the husband claims that General Motors Corporation was improperly joined as a party to the divorce proceeding below.

The record before this court reveals that the parties had been married approximately twenty-three years when they were divorced. Their union produced three children, two of whom were adults at the time the marriage was dissolved. The couple's eldest daughter is a college graduate and no longer resides at the family home. The middle child, a daughter, attends school at Auburn University but is still dependent upon her mother and father for at least a portion of her financial support. The parties also have a son who is their youngest child. He was a high school sophomore at the time of the divorce.

Both the husband and wife are in their mid-fifties. Although the husband is in good health, the wife has had problems with her back and has undergone two operations to correct this condition. Other than recurring difficulties with her back, she is in reasonably good health.

The husband is owner and operator of Ray Hughes Chevrolet, Inc., an automobile dealership located in Enterprise, Alabama. On the other hand, the wife is a homemaker and has not been employed in a position outside the home since the early years of the couple's marriage.

Evidence presented at trial disclosed that during the latter years of the parties' marital union, the husband engaged in a marked tendency to disassociate himself from his family often refusing to eat or converse with his wife or children. Testimony further revealed that the husband and wife frequently argued over finances and his refusal to inform her about the family's financial condition. Finally, the trial transcript indicates that when the husband did engage in conversations with the members of his family it was generally for the purpose of harangueing or criticizing them. It was on the basis of the aforementioned circumstances that the wife ultimately decided to obtain a divorce.

In December of 1974 the wife filed a complaint seeking a divorce from her husband. After the occurrence of various procedural stages dealing with this matter, a hearing was held in the Circuit Court of Coffee County and on October 6, 1976 a decree of divorce was ordered. This judgment was based on the finding by the court that there existed such a complete incompatibility of temperament that the parties could no longer live together. In its decree of October 6, the court ordered that the wife be granted custody of the couple's minor son; that the husband pay $300 a month child support until his son graduated from college; that he pay his son's medical expenses; and that the husband pay the wife alimony in gross in the amount of $10,000 per year (or $833.33 a month) for ten years. Moreover, the wife and son were granted the use of the family residence until further order of the court and the husband was required to pay the mortgage, taxes and insurance on this residence. A general lien was declared on all of the husband's property, including his Chevrolet dealership, and he was precluded from disposing of any stock in the dealership which belonged to him (unless the proceeds therefrom were used to pay alimony or child support) until he had paid the $100,000 in alimony payments due his wife. The husband was also ordered to pay the attorney's fees incurred by the wife.

On April 27, 1977 the trial court overruled the husband's motion for new trial, withdrew its original judgment of October 6, 1976, and entered a second judgment. Despite retaining a substantial portion of the language in its original decree, the court made the following modifications: (1) $300 a month to be paid by the husband as child support for his minor son "until further order of the court;" (2) the family residence to be sold when the minor child reached the age of majority with one-third of the proceeds from the sale to the wife and the remaining two-thirds of the proceeds to the husband. The husband was also ordered to maintain complete medical insurance on his wife and the award of attorney's fees to the wife's counsel was raised from $3,500 to $4,500. From the trial court's second judgment the husband brings this appeal.

The first issue presented to this court for review concerns the husband's assertion that the trial court abused its discretion in requiring that he pay child support until further order of the trial court. He contends that his motion for new trial challenged the court's original decree ordering him to pay child support until his son graduated from college on the basis that such an order would mandate that child support payments continue even after the child reached the age of majority. Consequently, the husband submits that the court's subsequent modification of the language in its original judgment is merely an effort to circumvent the court's obligation to declare that the husband is not required to pay child support once his son reaches the age of nineteen.

Since there is no legal obligation of a parent to support, maintain or educate a child once that child reaches the age of nineteen, the court in the instant case did not err in changing its original language ordering the husband to pay child support from "while said child successfully continues his education in college" to "until further orders of the court." Indeed, the latter language is merely an indication that the court has retained jurisdiction to modify the requirement that the husband pay child support. And any such modification may in fact occur before the child reaches the age of nineteen. At any rate, the court may properly retain such jurisdiction at its discretion and it will not be reversed on appeal for doing so unless the complaining party demonstrates a clear, manifest and obvious abuse of its discretion by the trial court. We find no such abuse in the judgment below as it relates to the trial court's order regarding child support.

However, it should be noted that in the cases of Hardiman v. Hardiman, 48 Ala.App. 427, 265 So.2d 607 (1972) and Huckaba v. Huckaba, Ala.Civ.App., 336 So.2d 1363 (1976), this court said that a trial court has no power to order a husband to continue to pay child support once his child reaches adulthood.

The next issue raised by the husband concerns the amount of alimony awarded to the wife by the trial court. While the husband does not contest his obligation to pay his wife an equitable amount of alimony, it is his contention that the trial court abused its discretion in ordering him to pay the sum of $833.33 a month in alimony and an additional $645.50 per month in child support, mortgage payments, property taxes and insurance on the family residence. The husband urges that these payments alone (totaling $1,478.83 per month) exceed his monthly income, and that when coupled with his obligation to provide medical care and insurance for his wife and son, the monthly amount he is required to pay for their support will force him to borrow money to meet his own living expenses. ¹

In determining whether the trial court abused its discretion in awarding alimony we must examine the evidence presented to that court. The evidence which was introduced to this matter in the trial below reveals the following facts. The parties' home was built for $55,000 and has a current market value of $75,000. The wife testified that she wished to remain in the house until the couple's son graduated from high school. Accordingly, the trial court ordered that the house be sold when the latter reaches the age of nineteen, at which time the husband will receive two-thirds of the proceeds from the sale and the wife will be paid the remaining one-third of the proceeds.

The joint income tax returns for the husband and wife indicate that between 1969 and 1972 their taxable income was between $40,000 to $52,000 a year. This entire amount was earned as a result of the husband's automobile business either in the form of salary or stock dividends. In 1973 the husband began to file individual income tax returns and his return for that year shows a taxable income of $43,500. In 1974 his taxable income amounted to $43,250. However, due in part to the ravages of a nationwide recession which had a particularly bad effect on the nation's automobile industry, the husband's taxable income fell to $24,400 in 1975. ² Despite this fact, the net worth of his automobile dealership rose to an all-time high and in 1975 it had an estimated value of $378,453. This increase in the value of his business was apparently the result of the husband's use of the profits from his business to acquire from General Motors whatever stock the latter owned in the husband's Chevrolet dealership. The dealership's profits were also used by the husband to purchase stock in General Motors.

The husband is the sole owner of his automobile dealership and in his capacity as the president of his wholly-owned corporation he may fix his personal salary at whatever amount he desires.

At trial he testified that he reduced his monthly salary in 1976...