Kluever v. Kluever

• Citation: 656 So.2d 887
• Parties: Anna B. KLUEVER v. Richard Otto KLUEVER. AV93000672.
• Decision Date: 17 March 1995
• Court: Alabama Court of Civil Appeals

Page 887

656 So.2d 887

Anna B. KLUEVER v. Richard Otto KLUEVER.

AV93000672.

Court of Civil Appeals of Alabama.

March 17, 1995.

Jonathan A. (Alex) Brown of Young & Brown, P.C., Vernon, for appellant.

Tim R. Wadsworth of Tim R. Wadsworth, P.C., Sulligent, for appellee.

THIGPEN, Judge.

This is a divorce case.

Following 32 years of marriage, Richard Otto Kluever sued for a divorce from Anna B. Kluever, alleging incompatibility of temperament. The wife's motion to dismiss was denied, and she answered and filed a counterclaim alleging adultery.

In February 1994, following ore tenus proceedings, the trial court divorced the parties based upon incompatibility, and, inter alia, divided the meager personal property of the parties and continued the issue of alimony until after further proceedings. Following additional ore tenus proceedings on the issue of periodic alimony, the trial court entered a supplemental judgment awarding the wife periodic alimony of $150 per month for 18 months. The wife appeals, contending that the trial court abused its discretion in its determination regarding periodic alimony.

Pertinent facts are disclosed in the record. Although no children were born of this marriage, the wife had four minor children when the parties married in 1961. The parties separated in August 1993, after the husband asked the wife for a divorce when they returned home from their 32nd wedding anniversary trip. The husband testified that the wife had not worked since approximately 1975, because he had asked her to stop working after her children became adults. The wife testified that her only income was approximately $317 per month in Social Security benefits. In 1979, the husband retired after 20 years in the Air Force, and at the time of the hearing he was receiving retirement pay of approximately $759 per month. He testified that he had recently begun delivering newspapers, and that he expected to receive over $300 per month from that job, based upon what others had told him. Additionally, his mother provides him with approximately $130 per month. Based on this information, the husband's estimated monthly gross income is approximately $1200. The husband testified that $125 per month is withheld from his retirement check to repay a loan, and that he believed $109 per month would be deducted from his retirement pay, beginning in June 1994, to cover a default by the people who had assumed the mortgage on the previous marital home. Other evidence, however, indicated that it is questionable that the husband will be responsible for that obligation.

According to the husband, he has no money in a bank and they rented the marital home. The parties stipulated that the wife had retained the personal property accumulated during the marriage, and that the husband had never asked the wife for any of the personal property he left at the marital home. The husband testified that the wife handled the parties' finances and that the wife was entitled to medical insurance through the military for up to one year after the divorce and probably to some other military privileges. The husband testified that he lived with his mother. Also living with his mother is Betty Mercer, whom the husband testified to knowing for approximately 15 years, and the husband did not deny a romantic relationship with her. The husband basically admitted that when the parties got old and the wife got sick, he left her. When asked if he paid some of the household expenses for his mother's residence, he replied, "Buy some cigarettes for myself." He further testified that he did not give the wife any financial support after he left her.

The wife testified that she lived with her mother, and that she was basically "living off of" her mother. She testified that she had not known anything was wrong and that she and her husband were not having marital problems when he asked her for a divorce; she said he stated that he just wanted to be free. According to the wife, the husband was living at his mother's house with Mercer as early as October 1993. The wife stated that she sold most of the parties' personal property at a yard sale to obtain money to pay off a loan, to pay rent on the marital residence, to pay for her living expenses, and to pay for her move to Indiana to live with her mother. The wife estimated her monthly expenses to be approximately $810, excluding medical needs, and testified that she was disabled from working. She has health complications, including an enlarged heart, back problems, and two artificial knees. The husband also complains with back problems.

Both of the parties are in their sixties and reside with their mothers, who are in their eighties. Although the husband is the only heir to his mother's house, the wife has three sisters and is not the only heir to her mother's home.

When the evidence in a divorce proceeding is presented to the trial court ore tenus, its judgment is presumed to be correct if it is supported by the evidence, unless it is shown to be plainly and palpably wrong. Waid v. Waid, 540 So.2d 764 (Ala.Civ.App.1989). Further, the award of alimony is within the trial court's discretion, and its award will not be reversed on appeal absent an abuse of that...