Moody v. Moody

• Decision Date: 13 May 1994
• Citation: 641 So.2d 818
• Parties: Martha W. MOODY v. Walter Earl MOODY. AV93000264.
• Court: Alabama Court of Civil Appeals

Page 818

641 So.2d 818

Martha W. MOODY v. Walter Earl MOODY.

AV93000264.

Court of Civil Appeals of Alabama.

May 13, 1994.

Rehearing Denied June 17, 1994.

J. Perry Morgan of Black and Morgan and Guy Fullan of Fullan & Fullan, Birmingham, for appellant.

Stephen R. Arnold and Linda G. Flippo of White, Dunn & Booker, Birmingham, for appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

Following oral proceedings, the Circuit Court of Shelby County entered a final divorce decree, dividing the parties' property and awarding the wife periodic alimony. The wife appeals. She insists that the property division and the award of alimony were made in error. She further suggests that the court erred in refusing to award her attorney fees.

The record reflects that the parties were married for approximately 20 years. No children were born of the marriage. Both the husband and the wife had children from previous marriages.

At the time of the hearing the wife was 51 years old, with a high school education and in good health. For a majority of the marriage she did not work outside the home. Testimony was presented, however, that she assisted the husband in his business as a sales agent for Alfa Insurance Company. At the time of the hearing she was employed, earning approximately $1,400 per month. She testified that she filed the complaint for divorce because she came to believe that the husband raped her daughter in the early years of the marriage. In April 1992, five months after the complaint for divorce was filed, the husband was arrested for rape, based upon the allegations of the wife's 27-year-old daughter. The rape allegedly occurred during the daughter's childhood, from the ages of 7 to 13 years. The daughter allegedly reported the offense to her mother, but the mother chose not to believe her until she filed for the divorce.

At the time of the hearing the husband was 65 years old and was suffering from rheumatoid arthritis. He had previously had a knee and a hip replacement and was scheduled to have his ankles fused. At the time of the hearing he was on disability leave from Alfa, receiving approximately $3,400 per month in disability and Social Security benefits. When the disability benefits expire, he will be entitled to $2,793 per month in retirement benefits and $1,089 in Social Security benefits. Prior to the hearing he had withdrawn $63,000 from a 401(k) account and approximately $15,000 from a company savings plan. The husband testified that he sold a trailer park and that the proceeds from the sale were being held by his criminal defense attorney as security for an attorney's fee in the defense of the rape case. The husband presented testimony that the wife was seen kissing a local preacher.

The wife was awarded a lake house valued at approximately $50,000, the land for which is leased from Alabama Power Company; all personal property within her possession; one-half of the Alfa stock worth approximately $157,000; a 1983 Buick automobile; and $600 per month in periodic alimony.

The trial court awarded the husband the unencumbered marital residence valued at approximately $145,000; 168 acres of farm land in Blount County, lying in or near the city limits of Oneonta, with a conflicting value of $84,000 to $1,680,000, which generates $100 per month in rental income; rental property in Blount County valued at approximately $45,000, which generates income of approximately $200 per month; rental property in Dallas County with $10,000 in equity, which generates approximately $360 per month; an unencumbered apartment building, which generates monthly lease-sale income of $216; one-half of the Alfa stock valued at $157,000; all personal property in his possession; a 1988 Chrysler automobile; and a 1986 Chevrolet van.

The award of alimony and the division of property are matters which are within the sound discretion of the trial court and will not be reversed except for palpable abuse of that discretion. Wiggins v. Wiggins, 498 So.2d 853 (Ala.Civ.App.1986). When a trial court is presented the evidence ore tenus, its judgment will be presumed correct if supported by the evidence. Nowell v. Nowell, 474 So.2d 1128 (Ala.Civ.App.1985). The trial court's judgment, however, is subject to review and revision. Seamon v. Seamon, 587 So.2d 333 (Ala.Civ.App.1991). When making an award of alimony or a division of property, factors which the trial court should consider are the earning capacity and future prospects of the parties, their ages and health, the length of the marriage, the standard of living during the marriage,...