Mangina v. Mangina

• Decision Date: 10 May 1991
• Citation: 585 So.2d 1383
• Parties: Phillip J. MANGINA v. Patricia L. MANGINA. 2900183.
• Court: Alabama Court of Civil Appeals

Page 1383

585 So.2d 1383

Phillip J. MANGINA v. Patricia L. MANGINA.

2900183.

Court of Civil Appeals of Alabama.

May 10, 1991.

Rehearing Denied June 14, 1991.

Certiorari Denied Aug. 23, 1991

Alabama Supreme Court 1901530.

Robert C. Barnett of Barnett, Noble, Hanes & O'Neal, Birmingham, for appellant.

J. Ronald Boyd of Boyd, Pate & Fernambucq, Birmingham, for appellee.

ROBERT P. BRADLEY, Retired Appellate Judge.

This is a divorce case.

After an ore tenus proceeding, Patricia Mangina (wife) and Phillip Mangina (husband) were divorced in the Circuit Court of Jefferson County on August 22, 1990. The wife was awarded custody of the parties' minor child, and the husband was ordered to pay $385 per month child support. The wife was awarded all of the marital real property, including the parties' jointly owned home, and most of the other marital assets. On September 18, 1990 the husband filed a motion to amend in which he challenged the property division and the amount of child support ordered. The trial court denied this motion on November 28, 1990. The husband appeals the award of property and child support to the wife.

In divorce cases the division of marital property and the award of child support are issues well within the sound discretion of the trial court. Conradi v. Conradi, 567 So.2d 364 (Ala.Civ.App.1990). Where the evidence regarding these matters was presented ore tenus, the trial court's judgment is presumed correct and will not be reversed unless it is plainly and palpably wrong or unjust. Alexander v. Alexander, 567 So.2d 353 (Ala.Civ.App.1990).

The husband first argues that the trial court abused its discretion by awarding the wife substantially all of the marital estate. The record shows that at the time of the divorce the marital estate included real property, investments, and other assets totaling over $1.1 million. Substantially all of this estate was acquired by gift or inheritance to the wife from her father. From these assets the trial court awarded the husband several automobiles and his hunting equipment. The husband, a veterinarian, also retained his medical equipment. The husband was ordered to pay some $23,000 in debts that he had incurred at various banks. The trial court then awarded all of the remaining marital assets to the wife, including full ownership of the clinic where the husband practices. The wife's portion of the property division totalled over $1 million, while the husband received less than 3 percent of the parties' estate.

The husband contends that such a disproportionate division is plainly unjust. To bolster his argument, the husband cites § 30-2-51, Code 1975. Section 30-2-51 provides that the property of one spouse acquired through inheritance or gift is deemed to be that spouse's separate property, but may be considered in a property division if it has been used for the common benefit of the parties during their marriage. However, this statute does not require the trial court to award each party an equal portion of commonly used assets. A property division in a divorce case need not be equal, but must be graduated according to the particular circumstances of the case. Johnson v. Johnson, 497 So.2d 503 (Ala.Civ.App.1986). It is not error under appropriate circumstances to award virtually all of the marital assets to one party. Hansen v. Hansen, 401 So.2d 105 (Ala.Civ.App.1981).

The record clearly shows that many of the gifts and bequests from the wife's father have been used for the common benefit of the parties. In fact, the wife's parents largely supported the parties throughout their twenty-seven year marriage. The parties met while still in college, and the wife's father paid all of their expenses while the husband attended veterinary school. The record shows that the parties lived with, and were completely supported by, the wife's parents for several years after the husband became a practicing veterinarian. The wife's father bought the lot where the parties built their marital residence. The husband practiced medicine in a rent-free clinic that the father-in-law built for him. The husband eventually began using his salary to pay the expense of the house mortgage, insurance, utilities, and taxes. Virtually all other expenses incurred during the marriage were paid by the wife's parents. The husband testified at trial that he never sought to repay his wife's parents for their support of his family and never offered to pay rent for his office space.

The husband correctly points out that the station in life he enjoyed throughout his marriage is a factor that may be considered in the awarding of marital assets. Weatherly v. Weatherly, 469 So.2d 653 (Ala.Civ.App.1985). However, the fault of the parties is also a factor which may be considered, even when the divorce was not granted on the basis of fault. Nickerson v. Nickerson, 467 So.2d 260 (Ala.Civ.App.1985).

The record clearly shows that the largesse of the wife's parents provided the husband with a higher station in life than he could have afforded from his own earnings. The record does not show that the husband pursued his veterinary practice with particular vigor during the years of his marriage; indeed, the record does not indicate that he ever averaged more than $25,000 a year in net income.

The record reveals that a substantial portion of the property inherited by the wife has been invested for the benefit of the parties' children and is properly excludable from the property...