Nelson v. Nelson

• Decision Date: 20 November 1992
• Citation: 611 So.2d 1113
• Parties: William Earl NELSON v. Loretta B. NELSON. 2910478.
• Court: Alabama Court of Civil Appeals

Page 1113

611 So.2d 1113

William Earl NELSON v. Loretta B. NELSON.

2910478.

Court of Civil Appeals of Alabama.

Nov. 20, 1992.

John B. Holt of Holt, McKenzie, Holt & Mussleman, Florence, for appellant.

Cindy S. Schuessler, Florence, for appellee.

RUSSELL, Judge.

After an ore tenus proceeding, the trial court entered a final judgment of divorce, awarding the wife custody of the parties' two children, granting visitation rights to the husband, and dividing the parties' property.

The husband appeals, contending that the trial court erred (1) by placing certain limitations on his visitation rights during the six-month period immediately following the parties' divorce; (2) by awarding the wife an account containing funds that he had inherited from his mother; (3) by awarding the wife a one-half interest in a house he acquired prior to the parties' marriage; and (4) by awarding the wife a one-half share of his retirement plan. The husband further contends that the trial court's division of marital property was, as a whole, inequitable.

At the outset we note our limited standard of review in divorce cases where the trial court receives ore tenus evidence. A presumption of correctness attaches to the judgment appealed from, and unless the evidence shows the trial court to be plainly and palpably wrong, we must affirm. Blankenship v. Blankenship, 534 So.2d 320 (Ala.Civ.App.1988). Furthermore, the division of marital property is within the sound discretion of the trial court, and the court's judgment will not be reversed on appeal absent an abuse of such discretion. Golson v. Golson, 471 So.2d 426 (Ala.Civ.App.1985).

The husband first contends that the trial court erred by limiting his visitation during the first six months following the parties' divorce to a lunch, movie, or similar activity with the parties' children each Saturday. He maintains that this is unduly restrictive.

We note that a trial court has broad discretion in determining visitation rights, and its judgment will be affirmed on appeal unless it is unsupported by the evidence. Watson v. Watson, 555 So.2d 1115 (Ala.Civ.App.1989). When exercising its discretion, the trial court's primary consideration must be the best interests and welfare of the child. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

We find considerable evidence in the record indicating that the husband had been experiencing serious psychological distress arising from the parties' impending divorce. A detailed recital of the testimony as to this issue, however, would serve no useful purpose here. The record further suggests an ongoing history of problems in the husband's relationship with the parties' children, which had intensified due to the divorce. A psychologist who had counseled the parties' older child testified that, given the situation of heightened tension and conflict in the family, she recommended that the husband's visitation initially be limited and then gradually increased. When questioned by the trial court, she recommended that "at least a good six months of building time" be allowed after the divorce before establishing full visitation.

In view of the evidence in the record, we do not find the trial court's order regarding the husband's initial visitation rights to be unduly restrictive. We note that the court's order provides for considerable expansion of the husband's visitation rights after expiration of the six-month period. We cannot say that the evidence shows the trial court's judgment to be plainly and palpably wrong, or that it is not in the best interests of the children. Accordingly, the trial court's judgment as to this issue is due to be affirmed.

The husband's next contention is that the trial court erred by awarding the wife a brokerage account containing funds that he had inherited from his mother. He maintains that this account, which holds approximately $9,000, is his separate estate and should have been excluded from the division of marital property. The husband cites § 30-2-51, Ala.Code 1975, which provides that property or money acquired by one party through inheritance cannot be considered in a property division unless such property or money was used regularly for the common benefit of both parties during the marriage. Marsh v. Marsh, 496 So.2d 71 (Ala.Civ.App.1986).

Notwithstanding his contention on appeal, the husband testified at trial that $1,634 of the money in the brokerage account came through an inheritance from his mother, that $2,748.50 came from his mother through a financial clearing company, and that the remainder of the money in the account was generated from his employment income. Thus, by the husband's own admission, the majority of the funds in the account were not acquired through inheritance and could properly be considered as a marital asset. Further, the trial court heard testimony from the wife that during the marriage the husband had invested the parties' money in numerous accounts with the purpose of using profits from such investments for the payment of the children's educational expenses. Therefore, there was ample evidence to support a finding that the account the husband claims as separate was a marital asset consisting of commingled funds and utilized for the...