Self v. Self

• Decision Date: 28 March 1973
• Citation: 275 So.2d 345,49 Ala.App. 665
• Parties: Roy E. SELF v. Peggy SELF. Civ. 53, Civ. 53X.
• Court: Alabama Court of Civil Appeals

Page 345

275 So.2d 345

49 Ala.App. 665

Roy E. SELF v. Peggy SELF.

Civ. 53, Civ. 53X.

Court of Civil Appeals of Alabama.

March 28, 1973.

Sherman B. Powell, Decatur, for appellant.

Asa C. Hartwig, Cullman, for appellee-cross-appellant.

HOLMES, Justice.

Peggy B. Self originally brought suit for divorce against Roy E. Self in the Circuit Court of Cullman County, Alabama, in April of 1971. The ground for divorce in the original suit was physical cruelty, but was later amended to include the ground of incompatibility of temperament.

In addition to the divorce, Mrs. Self sought permanent child custody, alimony and child support, the house and certain personal property owned by the parties and reasonable attorney's fees.

After issue was joined, testimony on the bill of complaint proceeded Ore tenus, and a final decree of divorce was granted on the ground of incompatibility of temperament; custody of the child of the parties was awarded to Mrs. Self with visitation right to Mr. Self; Mr. Self was ordered to pay $150 per month as alimony and child support and to provide for the necessary medical and dental expenses for the minor child; the personal property of the parties was equally divided; and the decree provided that Mr. Self was to pay an attorney's fee of $250 to the attorney for Mrs. Self.

From this decree, Mr. Self, hereinafter referred to as appellant, has taken this appeal and Mrs. Self, hereinafter referred to as appellee, has cross appealed.

The testimony reveals that the parties have been married slightly in excess of a decade; that one minor child, now six years of age, was born of their union; that appellant-husband earned approximately $160 per week with a take-home pay of $125 to $130; that appellee-wife earned approximately $40 per week. The parties have been living separate and apart for approximately one year prior to their divorce.

There was evidence that the parties owned a home with a mortgage thereon, but the record does not reveal how the home was purchased, paid for, or in whose name the legal title the home is in. Furthermore, there is no disposition of the home mentioned in the decree.

We do not deem it necessary to this opinion or in the best interest of the parties to detail the testimony as to the acts of violence or inharmonious relationship of the parties, but suffice it to say that if the appellee- wife's testimony is believed, their marriage has been somewhat turbulent.

Appellant first contends, by his assignments of error and argument in brief, that the trial court erred in granting appellee-wife a divorce on the ground of incompatibility of temperament in that the evidence was not sufficient to support the decision of the trial court.

In Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71 (January 1973), this court defined and discussed incompatibility of temperament as a ground for divorce in Alabama, and we do not here need to reiterate what we stated in that opinion. However, in general terms, in Phillips, supra, we defined incompatibility as referring to conflicts in personality and disposition so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship with each other. We further said that this new ground for divorce in Alabama gives to the trial court additional discretional power and its determination that a divorce should be granted or should not be granted on such ground will only be reversed if such decision is plainly and palpably wrong.

As was stated in Phillips, supra, the trial court, in determining whether or not incompatibility exists, should consider whether or not there is a conflict of personality; whether or not there is mutual concern for the emotional needs of each other; whether the marriage is characterized by financial difficulties, long physical separation, difference of interests, resentment, coolness, distrust and constant bickering; and whether antagonistic feelings exist that are irreversible and demonstrate an irremediable rift.

With the above in mind, the evidence in the matter now before us reveals that shortly before the parties separated the appellant had pointed a pistol at appellee's heart and clicked it a few times; that the parties had been separated approximately one year prior to the decree; that appellee felt the marriage could not be saved and did not want to return and live with appellant; and that appellee was afraid of appellant.

Considering the above with the fact that the trial court heard the witnesses, observed their demeanor, we cannot say the trial court was plainly and palpably wrong.

Appellant next contends in his assignments of error and brief that the trial court erred in awarding the six year old minor child of the parties to the appellee-wife. We cannot so agree.

This court stated in Cox v. Cox, 48 Ala.App. 574, 266 So.2d 784, that where a court is faced with conflicting claims of parents for custody of minor children the fundamental controlling inquiry is the best interest of the children.

This court is also cognizant of the rule or presumption of correctness of a decree rendered after a hearing of testimony Ore tenus. Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561; Randolph v. Randolph, 45 Ala.App. 326, 229 So.2d 923.

From the record in this cause no evidence of unfitness or misconduct of the appellee appears. The decision of the trial court awarding the custody of the child to the appellee will not be interfered with. Glenn v. Glenn, 21 Ala.App. 148, 106 So. 226; George v. George, 255 Ala. 190, 50 So.2d 744.

Appellant's final argument in brief is that the trial court erred in that the amount awarded for child support and alimony, to wit, $150 per month is excessive.

The amount of alimony to be awarded to the wife in a divorce case is addressed to the sound discretion of the trial court, Butler v. Butler, 274 Ala. 352, 148 So.2d 638, as is the amount to be paid for the support of the children, Whiteport v. Whiteport, 283 Ala. 704, 220...