Masucci v. Masucci
| Decision Date | 06 July 1983 |
| Citation | 435 So.2d 120 |
| Parties | Martha Anne MASUCCI v. Robert J. MASUCCI. Civ. 3587. |
| Court | Alabama Court of Civil Appeals |
Clement J. Catron of Catron & Parker, Huntsville, for appellant.
John Mark McDaniel, Huntsville, for appellee.
This is a divorce case.
On April 30, 1982 Martha Anne Masucci filed a divorce complaint in the Madison County Circuit Court. She alleged as the sole ground for relief that her husband, Robert J. Masucci, had committed adultery. She requested that the court award to her the marital homeplace and personal property, periodic alimony, alimony in gross, and attorney fees. The wife also asked that the husband be ordered to pay the home mortgage indebtedness. A motion for possession of the homeplace, alimony, and attorney fees pendente lite was filed with her complaint. She subsequently amended her complaint to include a request that the husband continue to maintain hospital and medical insurance coverage for her.
The husband filed an answer and counterclaim in which he sought a divorce on the ground of mental cruelty. He requested that the court order the jointly owned real estate be sold and the proceeds used to pay the parties' debts, that certain personal property be returned to him, and that each party be allowed to retain the automobile in each party's possession and the debt owed for each automobile be assumed by the party in possession.
The court on June 3, 1982 entered a pendente lite order which gave the wife exclusive possession of the homeplace and ordered the husband to make the mortgage payments, utility payments, and basic telephone service payments. Robert J. Masucci was also ordered to keep the wife as a dependent on his hospital and medical insurance plan.
After an ore tenus trial, the court on September 29, 1982 entered a judgment of divorce for incompatibility. Prior to the trial the parties stipulated incompatibility as the ground for divorce. In the final decree the wife was awarded all the household furniture, the silver, a diamond bracelet, a 1978 Mercury Monarch automobile, and $425 per month as permanent and periodic alimony. The court ordered that the house be sold by private sale within ninety days and the proceeds from the sale be used for the payment of all debts incurred by the parties during their marriage except for the debts secured by the husband's automobiles. The balance of the proceeds are to be divided equally between the parties. No attorney fees were awarded to the wife. The wife filed a motion for new trial. After a hearing on the motion, the motion was denied.
The wife brings this appeal and raises three issues. The first issue raised is whether the trial court erred by failing to award a sufficient amount of periodic alimony.
First, we note that a decree rendered upon an ore tenus hearing is presumed correct and will not be set aside unless the decree is unsupported by any credible evidence and is plainly and palpably wrong. McClain v. Department of Industrial Relations, 405 So.2d 34 (Ala.Civ.App.1981). Secondly, the award of alimony and the division of property are matters within the trial court's discretion and will not be revised or reversed by this court absent a showing of plain and palpable abuse of that discretion. Dennis v. Dennis, 383 So.2d 187 (Ala.Civ.App.1980).
The wife correctly asserts in brief that in setting the award of alimony and the division of property the factors to be considered are:
"[T]he length of marriage; the source of their common property; the parties' ages, sex and health; the parties' future prospects; the parties' standard of living during their marriage and their potential for maintaining or exceeding that standard after the divorce; and, in appropriate situations, the conduct of the parties with reference to the cause of the divorce." (Citation omitted.)
Makar v. Makar, 398 So.2d 717 (Ala.Civ.App.1981). The wife claims that in view of factors to be considered by the court, the court abused its discretion by awarding her $425 per month for permanent and periodic alimony.
The parties' circumstances in this case do not warrant a revision or reversal of the trial court's periodic and permanent alimony award. The parties were married for twenty-five years and their three children have all reached the age of majority. The wife is forty-four years old and in good health. She has worked full time for the past three years as a sales clerk in a clothing store and she earns $5.40 per hour plus a one percent commission. In 1981 she had a gross income in excess of $12,000. The wife has two years of a college education. In the decree ...
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Golson v. Golson
...the parties' standard of living during the marriage and the potential for maintaining that standard after the divorce. Masucci v. Masucci, 435 So.2d 120 (Ala.Civ.App.1983); Hinds v. Hinds, 415 So.2d 1122 (Ala.Civ.App.1982). See Stricklin, 456 So.2d at 811. The trial court had substantial ev......
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...our appellate courts have many times declared that orders of the trial court must be supported by legal evidence. Masucci v. Masucci, 435 So.2d 120 (Ala.Civ.App.1983); Smith v. Smith, 429 So.2d 1080 (Ala.Civ.App.1983). A parent is entitled, upon petition for modification, to be relieved fro......
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...standard of living to which the parties have become accustomed during the marriage, and the conduct of the parties. Masucci v. Masucci, 435 So.2d 120 (Ala.Civ.App.1983); Goodwin v. Goodwin, 364 So.2d 678 In this case the parties have been married for a long time and enjoyed a fairly good st......
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