Russell v. Russell

• Citation: 45 Ala.App. 455,231 So.2d 910
• Decision Date: 18 February 1970
• Docket Number: 4 Div. 3
• Parties: Euell R. RUSSELL v. Joyce RUSSELL.
• Court: Alabama Court of Civil Appeals

Page 910

231 So.2d 910

45 Ala.App. 455

Euell R. RUSSELL v. Joyce RUSSELL.

4 Div. 3.

Court of Civil Appeals of Alabama.

Feb. 18, 1970.

W. H. Baldwin, Andalusia, for appellant.

James M. Prestwood, Andalusia, for appellee.

BRADLEY, Judge.

The appellee here, complainant below, filed suit for divorce alleging that appellant had become, since the marriage, addicted to habitual drunkenness. Demurrer was filed thereto, and subsequently, overruled by the court. An answer was then filed to the complaint.

Prior to a hearing on the case in chief, the appellee-complainant complained to the trial court that respondent was seeing the minor children while under the influence of intoxicating beverages and was threatening to take the children on an outing to the Gulf of Mexico without apprising the complainant of their whereabouts, and she wanted a restraining order prohibiting the respondent from riding the children in a motor vehicle while under the influence of intoxicating beverages, or even seeing them while in such condition, and also requested other restrictions against respondent.

The trial court granted the requested restraining order directed against respondent.

Approximately two months later, trial was had before the court, sitting without a jury, at which evidence was taken ore tenus. At the conclusion thereof, a rather explicit decree was entered granting a divorce to the complainant, awarding custody of the minor children to her and fixing the visitation privileges of the respondent.

The trial court also provided support payments for the four minor children and, in an effort to assure that the support payments would be timely made, placed certain restrictions on the right of the parties to dispose of or alienate the real and personal property acquired by the complainant and respondent during the course of their marriage.

The respondent appealed the decree of the trial court to the Supreme Court and made five assignments of error. The case was subsequently transferred to this court.

The first assignment of error contends the trial court erred in entering a decree finally divorcing the parties.

The rule applicable to this first assignment is contained in Baggette v. Baggette, 279 Ala. 167, 182 So.2d 898, wherein the Supreme Court had this to say:

'The well-known and oft-repeated rule is, that where evidence is heard orally by the trial court, the judgment or decree of that court will not be disturbed unless it is plainly and palpably wrong and unjust. The reason for the rule is obvious. The trial court has the witnesses before him, he hears them testify, he observes their demeanor on the stand, and in many cases, knows the parties and their background. He is much better positioned than are appellate courts to render a correct and just judgment or decree. * * *'

The basis for the divorce suit was that appellant had become, since the marriage, addicted to habitual drunkenness, and the record contains sufficient evidence to support this allegation. Since we cannot say that the trial court was plainly and palpably wrong in dissolving the bonds of matrimony on the ground of drunkenness, we say there was no error in this aspect of the decree. Gaddis v. Gaddis, 239 Ala. 75, 194 So. 163.

Assignments of error 2 and 3 specify that the trial court in its decree required the appellant to make child support payments which were not based on his ability to pay, and to make payments at times when he might be unable to work or had no income.

In order to gain a better understanding of what is raised by these two assignments of error, we deem it advisable to quote pertinent portions of the decree:

'IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that during the dependency of the minor children of the parties or any of them, that the respondent shall pay to the complainant as support and maintenance for said minor children an amount of his take home pay each week which is equal to the per centages hereinafter set forth, * * *. In weeks which the respondent does not work or does not make payments to the complainant for the use and benefit of said minor children in the amount of money as hereinafter decreed, there shall accrue as a lien against his interest in the real estate of the parties an amount equal to the sum as hereinafter set forth. * * * It is further Considered, Ordered, Adjudged and Decreed by the Court that so long as four of said minor children are dependent upon the parties for support that the percentage of the respondent's take home pay, which shall be due as child support money, shall be 40 percent of said take home pay as hereinabove defined; that during the period of time when only three of said children are dependent upon the parties for support and maintenance that the percentage of the respondent's take home pay as hereinabove defined shall be 32 and 1/2 percent; that during the dependency of only two of the minor children the percentage of the respondent's take home pay to be paid as support and maintenance shall be 25 percent; and during the dependency of only one of said minor children, the percentage of the respondent's take home pay which shall be paid as support and maintenance for said minor child shall be 17 and 1/2 percent; as hereinabove defined as take home pay and dependency. It is further Considered, Ordered, Adjudged and Decreed by the Court that when the earnings of the respondent shall not be sufficient to pay the following amounts each week for child support that the difference between the amounts so paid by the respondent and the amounts herein set forth shall accrue as a lien in favor of the complainant against the respondent's interest in the real property of the parties and to be paid before the respondent shall enjoy any use and benefit of any of the real estate of the parties and it is hereby Ordered that in no event shall the respondent pay to the complainant less than $60.00 per week during the dependency of four of the minor children as hereinabove decreed or less than $50.00 per week during the dependency of three of the minor children or $40.00 per week during the dependency of two of the children or $30.00 per week during the dependency of only one child; it being the intention of the Court that if the percentage of the respondent's take home pay does not equal or exceed the amounts herein set forth, that he shall not be required to pay a larger percentage of his take home pay but that the difference between the actual amount paid and the minimum herein fixed shall be a lien in favor of the complainant against the interest of the respondent in the real estate of the parties to be paid by him before any enjoyment of the proceeds of the real estate. * * *'

The evidence shows that for the two years prior to the divorce decree, appellant's weekly wage, when he was working, was approximately $150.00 per week.

It will be noted from the decree that appellant was required to pay 40% Of his take-home pay each week, or $60.00, whichever was greater, so long as the four children were dependent on the parties for support. The percentage and fixed amount was scaled downward as the number of dependents decreased.

In Ex parte Whitehead, 179 Ala. 652, 60 So. 924, the Supreme Court, in considering whether a husband's personal earnings should be considered in fixing alimony pendente lite, had this to say:

'* * * The allowance may be based upon the husband's earnings or his ability to earn money in connection with all the circumstances of the case.--1 Bish. Mar. & Div. (6th Ed.) § 457; 2 Am. & Eng.Encyc. 123. It is not at all difficult to see the inequity of the rule which would exclude personal capacity from consideration. This court did not adopt a contrary rule in Webb v. Webb, 140 Ala. 262, 37 South. 96, 103 Am.St.Rep. 30. On the contrary, seeming rather to...