Russell v. Russell

• Decision Date: 11 August 2000
• Citation: 777 So.2d 731
• Parties: Johnny RUSSELL, Jr. v. Minnie RUSSELL.
• Court: Alabama Court of Civil Appeals

777 So.2d 731

Johnny RUSSELL, Jr. v. Minnie RUSSELL.

2990528.

Court of Civil Appeals of Alabama.

August 11, 2000.

Ellen T. Turner, Mobile, for appellant.

Submitted on appellant's brief only.

YATES, Judge.

On May 14, 1999, Minnie Russell sued Johnny Russell, Jr., for a divorce, alleging incompatibility of temperament, an irretrievable breakdown of the marriage, and adultery; there were no children born of the marriage. It appears from the record that the husband also filed a divorce action and that the court consolidated the cases on October 13, 1999.

Following an ore tenus proceeding, the court, on December 1, 1999, entered a judgment divorcing the parties, stating, in part:

"3. The [wife] is awarded the home-place as alimony in gross, and she shall be responsible for the indebtedness due thereon and hold the [husband] harmless therefrom. The [husband] shall give the [wife] a deed to transfer all of his right, title and interest in and to said property to the Plaintiff within thirty days of the date of this Judgement of Divorce. In the event the [husband] fails, refuses or neglects to convey said property within thirty days of the date of the Judgment of Divorce, then the... Clerk of this Court is empowered to do so upon submission of the deed or proper document by counsel to the Circuit Court.

"4. The [husband] shall pay to the [wife] as alimony the sum of $450.00 per month through the Accounts Clerk plus commission due by law commencing December of 1999.

"5. By agreement, the [husband] shall submit to his counsel his medical records that tend to indicate that he is unable to work; and said [husband's] counsel shall then forward same records to [wife's] counsel by 12:00 Noon on Friday, December 3, 1999.

"6. As periodic alimony a judgment is awarded against the [husband] in favor of the [wife] and her attorney for $750.00 representing monies to be applied towards a reasonable attorney's fee."

The court denied the husband's motion for "reconsideration" on January 6, 2000. The husband appeals, arguing that the court abused its discretion in awarding the wife periodic alimony.

In reviewing a judgment of the trial court in a divorce case, where the trial court has made findings of fact based on oral testimony, we are governed by the "ore tenus rule." Under this rule, the trial court's judgment based on those findings will be presumed to be correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). This presumption of correctness is based on the trial court's unique position, a position in which it can observe the witnesses and assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). Additionally, matters of alimony and property division rest soundly within the trial court's discretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala. Civ.App.1995). Factors the trial court should consider in its awarding alimony and dividing property include the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; their station in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the cause of the divorce. Id., at 1067. It is not the actual earnings, but the ability to earn that is considered in determining an award of alimony. Rolls v. Rolls, 623 So.2d 744 (Ala.Civ.App.1993). Further, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Willing, supra. Additionally, an attorney fee may be allowed in a divorce case, in the discretion of the trial court. Holmes v. Holmes, 487 So.2d 950 (Ala.Civ. App.1986).

The parties were married in 1976; at the time of...