Powell v. Powell

• Decision Date: 10 September 1993
• Citation: 628 So.2d 832
• Parties: Richard Michael POWELL v. Rebecca Ann POWELL. AV92000311, AV92000339.
• Court: Alabama Court of Civil Appeals

Page 832

628 So.2d 832

Richard Michael POWELL v. Rebecca Ann POWELL.

AV92000311, AV92000339.

Court of Civil Appeals of Alabama.

Sept. 10, 1993.

Rehearing Denied Oct. 15, 1993.

L. Stephen Wright, Jr. and Jesse P. Evans III of Najjar Denaburg, P.C., Birmingham, for appellant.

Judith S. Crittenden and Julia C. Kimbrough of Crittenden & Associates, Birmingham, for appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

Following lengthy oral proceedings, the trial court divorced the parties, divided the marital property, awarded the wife periodic alimony and alimony in gross, and ordered the husband to pay the wife's attorney fees. The wife was awarded custody of the parties' minor child, and the husband was ordered to pay child support. The husband appeals. The wife cross-appeals.

The record reflects that the parties were married for approximately 23 years. Two children were born of the marriage. Only one was a minor at the time of the hearing. The wife has a degree in psychology and worked prior to the marriage. She worked the first one and one-half years of the marriage and has not worked since that time. The husband is a certified public accountant and owns his own accounting firm. He also owns Shadowlawn Memorial Park, a cemetery, and other real estate.

The husband asserts that the trial court erred in its division of property and in its award of alimony in gross.

The court awarded the wife the marital residence (net value of $165,000), $50,000 from a money market account, a 1992 Acura automobile ($17,000), and home furnishings and personalty worth approximately $40,000. She was awarded $240,000 as alimony in gross, to be paid in monthly installments of $2,000 for ten years.

The husband was awarded all the stock in his accounting firm. He was also awarded all the stock in Shadowlawn Enterprises, Inc., and in Powell Printing Company. He was awarded the parties' lake house, a boat, and other personalty. The court specifically awarded the husband his profit sharing plan and his deferred compensation plans.

The husband contends that the court erred in considering the future value of his deferred compensation plans in making the awards. The husband's argument is based on mere speculation. There is no basis in the record or in the court's order to support the husband's assertion.

In any event, we have held that funds paid into a retirement plan are an asset of the husband which may be considered by the court in effecting an equitable property division or an award of alimony in gross. Nelson v. Nelson, 628 So.2d 798 (Ala.Civ.App.1993). We find no error in the award to the wife.

We find the division of property to be equitable. The division of property is within the sound discretion of the trial court, and its judgment will not be reversed except for palpable abuse of that discretion. Wiggins v. Wiggins, 498 So.2d 853 (Ala.Civ.App.1986). We find no such abuse here.

The husband asserts that the award to the wife of $22,500 in attorney fees was excessive. The wife cross-appeals and contends that the award was inadequate.

The granting of an attorney's fee in a divorce action rests within the sound discretion of the trial court. Its judgment as to the amount of the fee will not be reversed on appeal unless it is clearly shown that the discretion has been abused. Howard v. Howard, 422 So.2d 296 (Ala.Civ.App.1982). The court should consider the earning capacities and the financial circumstances of the parties and the result of the litigation in the award of attorney fees. Chandler v. Chandler, 501 So.2d 1234 (Ala.Civ.App.1987). The court may rely on its own knowledge and experience in determining the value of the attorney's services. Chandler.

The record indicates that the husband has the greater assets and that the result of the litigation was favorable to the wife. The wife presented testimony from an attorney experienced in domestic law. The attorney opined that a reasonable fee would be $30,000. We do not find the attorney's fee award to be an abuse of discretion.

The wife asserts that the court erred in its award of child support. She contends that in applying the child support guidelines as provided by Rule 32, A.R.J.A., the court used the incorrect figure depicting the husband's gross income.

There was a conflict in the evidence concerning the husband's gross monthly income. The wife estimated the husband's gross monthly income to be approximately $13,847. The husband estimated it to be approximately $7,583. The court found the husband's monthly gross income to be $9,625. It applied the guidelines according to that figure.

It was the duty of the court to resolve any conflict in the evidence. Jeffrey v. Jeffrey, 628 So.2d 783 (Ala.Civ.App.1993). The resolution of the conflict is supported by the record. We find no error.

The wife contends that the court erred in awarding only $1,875 in monthly periodic alimony. She insists that the amount awarded is insufficient to meet her needs.

An award of periodic alimony is a matter within the judicial discretion of the trial court and will not be reversed on appeal except for palpable abuse. Pelanne v. Pelanne, 572 So.2d 484 (Ala.Civ.App.1990). We find that the award of periodic...