Snow v. Snow
| Decision Date | 21 January 1981 |
| Citation | 393 So.2d 1020 |
| Parties | Sam K. SNOW v. Marinel C. SNOW. Civ. 2429. |
| Court | Alabama Court of Civil Appeals |
M. Douglas Ghee of Agee & Ghee, Anniston, for appellant.
H. Merrill Vardaman of Vardaman & Vardaman, Anniston, for appellee.
The trial court denied the plaintiff's motion to terminate or reduce alimony. The former husband appeals and contends that the circuit court was palpably wrong.
On January 14, 1975, the parties were divorced by a judgment which confirmed their agreement whereby the defendant was awarded $500 per month as periodic alimony.
The allegations in the plaintiff's 1980 motion as to a material change of circumstances were "that the assets and income of Marinel C. Snow have remained substantial while the Petitioner's income has drastically decreased and his assets have been depleted to the point that he is no longer able to pay alimony." He additionally contended that his health had so deteriorated that he was unable to further meet his alimony payments.
After an ore tenus hearing where the only witnesses were the two parties, the trial judge denied a change in alimony and ordered that the amount of alimony to be paid remain the same. We shall examine the evidence alongside the motion to ascertain if the testimony was such that the judgment was palpably wrong.
There has been no favorable material change in the status of the former wife. To the contrary, her standard of living has diminished, and, as is the case of people on fixed incomes, she has been plagued by the ravages of more than five years of inflation without an increase in alimony. She has not remarried, is still unemployed and is 57 years of age. However, in that respect, we are not impressed that the defendant desires, or has actively sought, gainful employment. Her only income is from assets which she received through the divorce property settlement, which income consists of gross rents of $2,400 per year and annual interest income approximating $2,500. Her income taxes amount to around $1,000 per year. She is still indebted upon a real estate mortgage, which she has reduced, since the divorce, to a present balance of $3,500. Her combined alimony and income are barely adequate to cover her expenses, with the alimony alone being insufficient to provide food, transportation, clothing and house payments for her.
The plaintiff, who is 60 years of age, remarried over five years ago and the couple have a four year old son. In 1979 the plaintiff conveyed to his present wife his one-half undivided interest in 38 acres of woodland worth around $10,000; the house in which they reside, the equity thereon being approximately $15,000; and the building used for his business, valued at $25,000. This transfer of substantially all of his assets was entirely voluntary on his behalf, was without monetary consideration, and does not constitute a lawful excuse for ending or altering the payment of alimony; neither does his remarriage alone. Massey v. Massey, 276 Ala. 502, 164 So.2d 498 (1964).
Although he alleged in his motion that he cannot continue to pay alimony because of ill health, his testimony was emphatic and unequivocal that he enjoys good health.
Thus, the principal ground in his motion was that his income has decreased to the point that he can no longer pay alimony.
The plaintiff has been a brick dealer since 1963 and owns his own business, which was not incorporated until October 1, 1979. No brick is kept in inventory. He solicits the purchase of brick at 10% over his cost, orders them from one of his brick manufacturers, pays the salary of a truck driver to deliver the brick to his customer, collects from the customer and pays the manufacturer.
The joint income tax returns, according to the plaintiff, indicated the following income before taxes: 1975, $14,485; 1976, $13,588; 1977, $40,935; and 1978, $39,170. He contends that in 1979 he had a deficit of checks over receipts of almost $8,500 and that such deficit for the first five months in 1980 amounted to slightly over $7,000, all occasioned by a depressed building industry. The checks, or books, were not in evidence. He opined that he was on the verge of bankruptcy.
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Bell v. State, 4 Div. 142
...plain, obvious, readily visible, noticeable, patent, distinct, manifest.' Black's Law Dictionary (5th ed. 1979)." Snow v. Snow, 393 So.2d 1020, 1022 (Ala.Civ.App.1981). That the verdict in this case is not palpably wrong and unjust is evidenced by the fact that this Court, in making its dec......
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