Roberts v. Roberts

• Decision Date: 26 October 1977
• Citation: Roberts v. Roberts, 357 So.2d 150 (Ala. Civ. App. 1977)
• Parties: Elinor W. ROBERTS v. Joe T. ROBERTS. Civ. 1213.
• Court: Alabama Court of Civil Appeals

Page 150

357 So.2d 150

Elinor W. ROBERTS v. Joe T. ROBERTS.

Civ. 1213.

Court of Civil Appeals of Alabama.

Oct. 26, 1977.

Rehearing Denied Nov. 30, 1977.

Tom Radney, Alexander City, for appellant.

Robert J. Teel, Rockford, for appellee.

WRIGHT, Presiding Judge.

This is a divorce case. The issues on appeal are directed to the sufficiency of the award of alimony and child support and the equity of the property division.

After nineteen years of marriage and the birth of four children, the husband filed for divorce for incompatibility. The wife countersued for divorce alleging adultery. At the time of trial the children were ages fifteen, fourteen, eleven and eight. The court heard substantial testimony and viewed documentary evidence. Judgment was entered granting a divorce without stating a ground. Custody of the children was given to the wife. Support was ordered in the amount of $250 per child per month. Alimony was given in the amount of $750 per quarter; however, alimony terminated when the youngest child reached majority or when it married. The wife received the home in Alexander City and its furnishings. The home and furnishings were appraised in value at about $110,000. The husband was given all other property, but was required to pay the mortgage payments on the home in the sum of $630 per month and to maintain a life insurance policy in the amount of the mortgage balance of $70,000. The husband was given the right to claim the children as tax deductions.

All of the issues presented by the appeal relate to the insufficiency of the awards to the wife and children, except the charge that there was error in failing to grant the divorce on the ground of adultery. We will address the latter issue first.

This court said in the case of Russell v. Russell, 45 Ala.App. 255, 257, 229 So.2d 30, 32 (1969) and repeated in the case of Lloyd v. Lloyd, 46 Ala.App. 441, 442, 243 So.2d 525, 527 (1970), "(I)f the evidence is legally sufficient to support the decree of the court below as to any ground alleged in the Bill of Complaint, the decree must be affirmed." We find the evidence and its reasonable inferences sufficient to support a divorce on either the ground of incompatibility or adultery. The failure to state which ground is therefore not reversible error.

We have previously shown the award of alimony and support together with the award of property. In order to determine whether the court abused its discretion, we must view the judgment in light of the evidence.

The husband is a dentist in Goodwater. Last year his solely-owned professional association grossed over $125,000. His salary was $52,000. He also earned over $3,000 from the National Guard. He also paid in some $7,500 to a tax-deferred retirement plan. There were also several thousand dollars undistributed earnings in the professional association together with depreciation credit. His earnings have been fairly constant in the last several years. He paid state and federal income taxes in 1976 of $15,054. ($800 of the income shown on the joint return was from a part-time teaching job of the wife.) Thus net income after taxes in 1976 was $39,856. Though the wife holds a master's degree in education, she has not taught, except part time in a junior college, in many years. She worked while the husband was in dental school.

The trial court found that the parties jointly owned property of a net value of $188,619.81. The home and its furnishings located in Alexander City were given to the wife, with the observation that it represented more than one-half of the net value of the total.

There was a certificate of deposit from a bank in Mississippi held by the husband in the amount of $7,200. It was purchased with funds from a joint account withdrawn by the husband after the separation. There was also a $5,000 municipal bond. A joint checking account in the sum of $1,919 was divided equally.

The trial court stated in its judgment that in awarding periodic alimony it had considered the award of the home and furnishings to the wife and the good health and education of the wife. It stated that the home and its furnishings represented substantially more than one-half the combined value of all the property. There was no statement indicating consideration of fault in ending the marriage.

It has become axiomatic and repetitious for us to say in divorce cases that we review judgments with a presumption of correctness if the trial court has heard the testimony. Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (1975). That presumption, coupled with the principle that the awarding of alimony and the division of property in a divorce is a matter for the exercise of judicial discretion by the trial judge, usually prevents the court from finding error on appeal. Novak v. Novak, 339 So.2d 77 (Ala.Civ.App.1976). We recognize that generally the trial court is better positioned to make such decisions than an appellate court. However, there are some cases when the presumption has less weight than others. When the award is clearly based primarily upon consideration of undisputed documentary and oral evidence and the judgment of the court indicates defective reasoning with failure to give weight to material parts of the evidence, the basis for the presumption is absent. Babcock v. Smith, 285 Ala. 557, 234 So.2d 573 (1970). This is such a case.

The award of the home and its furnishings to the wife was considered by the trial court to represent more than half of the value of the joint property. That conclusion may be true if all the property could be placed upon the market. The home is not presently marketable. It is necessary as a home for the children. The wife...