Langford v. Langford

• Decision Date: 16 November 1983
• Citation: 441 So.2d 962
• Parties: Henry F. LANGFORD v. Deborah Kay LANGFORD. Civ. 3683.
• Court: Alabama Court of Civil Appeals

Page 962

441 So.2d 962

Henry F. LANGFORD v. Deborah Kay LANGFORD.

Civ. 3683.

Court of Civil Appeals of Alabama.

Nov. 16, 1983.

Norborne C. Stone, Jr. of Stone, Partin, Granade & Crosby, Bay Minette, for appellant.

Taylor D. Wilkins, Jr. of Wilkins, Bankester & Biles, Bay Minette, for appellee.

WRIGHT, Presiding Judge.

This is a divorce case arising out of Baldwin County, Alabama.

Appellant Henry R. Langford (husband) and appellee Deborah Kay Langford (wife) were married in February 1976. Two children were born of this marriage; Melissa, age five and one-half years and Joshua, age seventeen months at the time of the trial in July 1982. The parties separated in July 1981 because of an "irrevocable" breakdown of their marriage. At the time of the trial the wife had custody of the children and was living in Pensacola, Florida, with her parents.

The trial court, after hearing the case ore tenus, rendered a final decree on October 19, 1982. The husband was ordered to pay $100 per week in child support, beginning one month prior to the decree until January 31, 1983; $150 per week from then until July 31, 1983; and $200 per week thereafter. The wife was further awarded $10,000 as "alimony in gross," payable on or before July 31, 1984, plus eight percent interest. She was also awarded the income from a second mortgage derived from the sale of a home in Pensacola. That property, though owned by the husband prior to the marriage, was lived in by the family in the early years of the marriage. That income is $4,000 per year for three years. The court did not characterize this award.

The husband moved to reconsider or in the alternative for a new trial. We take judicial notice that the trial judge was suspended from the bench by operation of law on November 2, 1982. He was apparently unable to consider appellant's motions. The motions were continued through February 2, 1983, when they were denied by a successor judge.

The only issue raised on appeal is whether the trial court abused its discretion in the provisions of its decree relative to child support and alimony. We have read the testimony and find no support in the evidence for the amount of child support with its incremental increases.

The decree was rendered following an ore tenus hearing and is presumed correct on appeal if supported by the evidence. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981). The division of property and setting of alimony is within the sound discretion of the trial court and will not be reversed except for palpable abuse of that discretion. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980).

The division of property does not have to be equal--only equitable. Each case must be decided on its own facts and circumstances. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980). Though there are no set standards, factors to be considered in the division of property and award of alimony are the future prospects of the parties, their ages, sex, health, station in life, length of marriage, and in proper cases the conduct of the parties with reference to the cause of the divorce. Wicks v. Wicks, 379 So.2d 612 (Ala.Civ.App.1980).

We do not find reversible error in the award of the $4,000 yearly income from the sale of the Pensacola property to the wife. That the home was owned by the husband prior to marriage is a factor to be considered, but it is not controlling in this case. § 30-2-51, Code of Alabama 1975; Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981).

The child support payment increases scheduled for January 31, 1983, and July 31, 1983, must be set aside. Though a divorced father must support his children reasonably according to his means, Boswell v. Boswell, 280 Ala. 53, 189 So.2d 854 (1966), and the determination of the amount rests within the sound discretion of the trial court, Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980), the "court is bound by the legal evidence or lack of it." Alford v. Alford, 368 So.2d 295, 298 (Ala.Civ.App.1979). We have examined the record and find no justification for the ordered incremental increases in child support.

The husband is the owner and operator of a business engaged in prefabricating wooden trusses for use in the construction industry. His business is conducted on a parcel of land valued at approximately $30,000. There are two structures on the land, used in his business, valued at approximately $71,000.

There is a home located on a one-acre parcel which he...