Sutton v. Sutton

• Decision Date: 11 June 1975
• Parties: Eunice SUTTON v. Wayne L. SUTTON. Civ. 458, Civ. 458--X.
• Court: Alabama Court of Civil Appeals

Page 707

314 So.2d 707

55 Ala.App. 254

Eunice SUTTON v. Wayne L. SUTTON.

Civ. 458, Civ. 458--X.

Court of Civil Appeals of Alabama.

June 11, 1975.

J. A. Hornsby and Roy D. McCord, Gadsden, for appellant.

T. J. Carnes, Albertville, for appellee.

HOLMES, Judge.

This is a divorce case.

Appellant-wife appeals the custody award of the four minor children to appellee-husband and the trial court's action in its division of property and/or award of alimony. Additionally, appellee-husband, by cross appeal, presents issues to this court relating to child support, division of personal property, and the taking of additional personal property, and the taking of additional testimony after both parties have rested. by the record, are as follows:

Appellant-wife is forty-one years old and works for Monsanto. She received $7,654.73 in salary in 1973.

Appellee-husband is a forty-two year old retired career serviceman. He receives $411 a month military retirement and $50 a month disability payment. Additionally, he now runs a chicken farm and in 1973 made $5,600 from this source.

The couple have been married twenty-two years and have seven children, four at this time being minors. The marriage has been, to say the least, 'stormy.' In fact, the couple previously were divorced from each other but, subsequently, remarried. The testimony, much of which is in direct conflict, indicates an atmosphere of physical and verbal abuse by the parties toward each other.

The parties owned a home in Florida with a mortgage of $8,500 and a value of $14,000 to $18,000. They also owned forty-six acres in Alabama. This land contains a home and a chicken house. The cost of the land, home, and chicken house was approximately $46,000. It appears from the record that the value now is about $65,000. The couple also owned personal property accumulated during twenty-two years of marriage.

The evidence indicates debts in the approximate amount of $50,000, chief among these are the following: a mortgage on the Florida residence, secured to help pay for the farm of $8,500 with monthly payments of $68.48 for twenty years; a loan from the Federal Land Bank for approximately $30,000 with semi-annual payments of $1,499; a debt of $5,733 with payments of $477 every four months owed to the Huntsville Production Credit Association.

After a hearing Ore tenus the trial judge entered a decree dissolving the bonds of matrimony between the parties on account of incompatibility and irretrievable breakdown of the marriage. The custody of the four minor boys was awarded to the appellee-father with visitation rights for appellant. Additionally, appellant-mother received visitation and/or custody of the two youngest minor children for the summer months. Appellee is to pay $300 for the support of these two children during the summer months while they are with appellant and he, in turn, received reasonable visitation rights during this summer period.

In the property settlement, appellant received the residence in Florida and also the bulk of the personal property. Appellee received the remainder of the personal property including farm equipment and the forty-six acre farm in Alabama with the home and chicken house. Appellee is also responsible for the aforementioned debts.

Following a series of post-decree motions and arguments appeal was perfected to this court.

I

The first contention raised by appellant's argued assignments of error is that the trial court erred in awarding custody and control of the four minor boys to appellee-father.

As is so often stated by this court, in cases involving child custody the paramount issue is the best interest of the child. Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342.

The evidence as to the relative attributes of either party as a parent is contradictory and bitter, replete with harsh accusations and counter-accusations. Even the children are divided in their loyalties and preferences.

We specifically note that two of the minor children, ages sixteen and fourteen, testified and both expressed strong preference to be with their father. Their wishes are entitled to much weight. Weems v. Weems, 255 Ala. 210, 50 So.2d 428. Furthermore, there is merit in keeping the four boys together. There is merit in keeping the four boys together. There is also some evidence of what appears to be abandonment of the children by the mother for a few months prior to the trial.

Applying the guiding principle of best interest for the child to the facts of this case, with a view to presumption of correctness attendant in this type case, Blankenship v. Blankenship, 266 Ala. 182, 94 So.2d 743, this court cannot say the trial judge erred in his award. To do so would be to substitute our own judgment for that of the trial judge. This the law will not allow. Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150.

The second issue raised by appellant's argued assignments of error is that the trial judge erred in his division of property and/or his failure to award sufficient alimony to appellant.

This portion of the decree, in making award to appellant, is styled, 'a division of property and as alimony in gross.' It is not necessary for this court to determine whether it is indeed a division of property or alimony in gross. Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159.

The fixing of alimony and a division of property is within the sound discretion of the trial judge in a divorce case. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308.

The evidence reveals that appellant received the residence in Florida with a value of $14,000 to $18,000. There is a mortgage on the home but appellee and not appellant is responsible for the repayment. Appellant also makes approximately $8,000 a year. Appellee did receive a forty-six acre farm...