Kuhnel v. Kuhnel

• Citation: 535 So.2d 164
• Parties: Nancy J. KUHNEL v. Eric B. KUHNEL. Civ. 6285.
• Decision Date: 27 April 1988
• Court: Alabama Court of Civil Appeals

Page 164

535 So.2d 164

Nancy J. KUHNEL v. Eric B. KUHNEL.

Civ. 6285.

Court of Civil Appeals of Alabama.

April 27, 1988.

As Corrected on Rehearing June 1, 1988.

Certiorari Denied Nov. 18, 1988

Alabama Supreme Court 87-1080.

Stephen R. Arnold of Durward & Durward, Birmingham, for appellant.

Oliver P. Head of Wallace, Ellis, Head & Fowler, Columbiana, for appellee.

HOLMES, Judge.

This is a divorce case.

Following ore tenus proceedings, the trial court divorced the parties and made a division of their property. The divorce decree did not include an award of alimony to the wife.

The wife appeals. We reverse and remand.

The wife contends that, given the circumstances of the divorce, her need for alimony, and her husband's capacity to pay it, the trial court abused its discretion in not awarding her alimony and in not awarding her an attorney's fee. We agree.

We have long held that the awarding of alimony and attorney fees is largely discretionary with the trial court, but that the exercise of such discretion must not be arbitrary and is subject to review on appeal. See, e.g., Marr v. Marr, 383 So.2d 194 (Ala.Civ.App.1980); Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150 (Ala.Civ.App.1973). The manner in which the trial court exercises its discretion in such matters must be viewed in light of the evidence in each case in order to determine any abuse. Marr, 383 So.2d 194.

In making the determination regarding alimony, a trial court may consider such factors as the earning capacity of the parties, their future prospects, the ages and health of the parties, the duration of the marriage, the standard of living to which they became accustomed during the marriage, the value and type of property owned, and the conduct of the parties. Carnaggio v. Carnaggio, 475 So.2d 861 (Ala.Civ.App.1985).

Generally, we have stated that the purpose of alimony is to preserve the economic status quo of the parties as it existed during the marriage. Carnaggio, 475 So.2d 861. Moreover, we have held that the failure to exercise judicial discretion to award alimony when the needs of the wife and the ability of the husband to pay are indisputably shown is arbitrary and capricious, especially where the divorce is granted upon the misconduct of the husband. Horsley, 50 Ala.App. 445, 280 So.2d 150.

Similarly, the factors considered by a trial court in making a determination regarding attorney fees include the earning capacity of the parties, the husband's financial circumstances, the wife's financial worth and income, and the nature of the conduct of the parties. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986).

The evidence in this case shows that the parties enjoyed a marriage of more than thirty years prior to the divorce. In the course of the marriage five children were raised, various properties were accumulated, and a business was started which developed into a successful enterprise. The parties worked together in the business--the husband presiding over and managing the highly specialized servicing of large air conditioning systems in contracts with national and international clients, the wife performing the secretarial and bookkeeping duties of the company. In 1983-1984, the business generated a yearly income of close to a million dollars, from which the husband drew a yearly salary of approximately $90,000, and from which the wife drew one of approximately $30,000.

In 1986, the wife's standard of living took a serious blow. She was informed by her husband that he was seeking a divorce, and they were subsequently separated. She was relieved of her job in the husband's business and, thereafter, sought employment elsewhere. After a fairly extensive job search at age fifty-two with a high school education and clerical experience As the record shows, the precipitating factor in the husband's decision to sue for divorce was his ongoing extramarital relationship with another woman. In fact, the wife was informed that she was being left for another woman and that the husband was taking the business and leaving town. Nevertheless, at trial the wife testified that she was willing to reconcile with her husband should he choose to do so.

she obtained employment for a yearly salary of less than $12,000.

In its decree the trial court divided the property of the parties. Primarily, the husband received the assets of the business, and the wife received the marital residence. The decree provided that, upon the sale of certain real estate, the parties would split the proceeds. It was estimated that the property would bring a...