Mullins v. Mullins
| Decision Date | 07 July 1982 |
| Citation | 416 So.2d 1063 |
| Parties | Carolyn G. MULLINS v. Charles R. MULLINS. Civ. 3134. |
| Court | Alabama Court of Civil Appeals |
David H. Meginniss of Hornsby, Blankenship & Robinson, Huntsville, for appellant.
Charles E. Shaver, Jr. and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee.
The wife filed a complaint for a divorce a vinculo martimonii and requested pendente lite alimony, child support, suit money and attorney's fees. After a hearing the trial court issued a pendente lite order granting custody of the parties' minor daughter to the wife and awarding the wife alimony and child support. The wife was awarded the right to occupy the parties' jointly-owned residence and the husband was required to keep in force medical insurance for the benefit of the wife and minor daughter. The husband thereafter answered and counterclaimed for divorce. The wife amended her complaint to ask for a divorce a mensa et thoro instead of a vinculo matrimonii. After an ore tenus hearing the trial court issued a final decree. The decree made the following provisions: (1) granted a divorce a mensa et thoro ; (2) awarded custody of the minor daughter to the wife; (3) gave each party his or her own personal effects and awarded the household furnishings to the wife; (4) ordered that the husband pay $50.00 per week child support and $50.00 per week alimony, "until October 24, 1984 at which time child support payments shall cease"; (5) ordered that the residence of the parties be sold within a reasonable period of time after October 24, 1984, and the proceeds divided equally between the parties; (6) awarded an attorney's fee to the wife in the total amount of $1,558.70; (7) awarded the wife a 1973 Monte Carlo Chevrolet automobile; (8) ordered the husband to pay the wife's current medical bill in the amount of $297.00; (9) divided the parties' four cemetery lots equally between the parties; and (10) ordered that "The husband shall maintain the wife's medical insurance until this divorce is final." The wife appeals to this court contending that the trial court abused its discretion in its award of periodic alimony and alimony in gross. She requests an attorney's fee for this appeal.
The record reveals the following pertinent facts: The parties have been married approximately twenty-six years. Of the three children born of the marriage, the daughter, Judy, was still a minor at the time of the trial. She will reach her majority on October 24, 1984. The husband was forty-eight years old at the time of the trial and employed as a market manager at Huntsville Coca Cola Company. In addition to his weekly gross salary of $414.00, the husband is furnished the use of an automobile for business purposes, gets vacation pay and a Christmas bonus. His company provides a retirement plan and medical insurance. The husband is in good health.
The wife was forty-five years old at the time of the trial. Her formal education did not continue past the tenth grade. She has obtained a GED. The wife's work experience has included four or five years in the spinning room at Huntsville Manufacturing Company, two years at the Lee High School cafeteria, one summer's employment at J. C. Penney's, seven years babysitting, and nine years selling Mary Kay Cosmetics. The wife's income in 1980 was approximately $46.00 per week. Her income in 1981 was approximately $52.80 per week. For the past four or five years the wife has suffered from rheumatoid arthritis. At trial the parties stipulated that the wife will not be able to exceed her previous earnings and in all probability will earn less in the future. An employment expert testified that the wife has little or no employability potential. The wife's monthly expenses are approximately $584.45. In addition she estimated annual expenses at $1,810.00 and incurs approximately $750.00 a year for trips to Washington for therapy. The cost of prescription and non-prescription medicines is approximately $100.00 per month. 1
The first issue raised by the wife on appeal is whether the trial court abused its discretion in the amount of periodic alimony awarded.
We review judgments entered by the trial court after oral hearing with a presumption of correctness. Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980). Awards of periodic alimony in a divorce case are within the sound discretion of the trial court and will not be reversed unless the record indicates a clear and palpable abuse of that discretion. Rose v. Rose, 395 So.2d 1038 (Ala.Civ.App.1981). In determining the proper amount of alimony the factors to be considered include the future prospects of the parties, their ages, health, station in life, the length of the marriage, in appropriate cases the conduct of the parties as regards the cause of the divorce, the needs of the recipient and the ability of the other to pay. Hurd v. Hurd, 397 So.2d 133 (Ala.Civ.App.1980), cert. denied, 397 So.2d 135 (Ala.1981).
The conduct of the husband, as revealed by the record, shows a marked indifference and callous disregard for the wife's health problems. The husband does not believe the wife is as ill as she claims. He admits to seeking the company of another woman and living openly with her in the presence of his daughter. Such conduct may properly be considered in determining an award of alimony. Clearly the wife is in need of greater support than $50.00 per week. In view of the husband's earnings, however, and his current additional responsibility to pay $50.00 per week in child support, we cannot say that the alimony award constitutes a clear abuse of discretion. We note that alimony in divorce from bed and board may be modified upon a showing of a material change in circumstances as in the case of absolute divorce. Adair v. Adair, 258 Ala. 293, 62 So.2d 437 (1952). Cessation of the husband's responsibility to pay child support in October 1984 might be viewed as a circumstance affecting his ability to pay alimony should the wife seek a modification at that time.
The wife expresses concern that the provision in the...
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