Thompson v. Thompson

• Decision Date: 21 November 1979
• Citation: 377 So.2d 141
• Parties: Thomas Henry THOMPSON v. Doris THOMPSON. Civ. 1937.
• Court: Alabama Court of Civil Appeals

Page 141

377 So.2d 141

Thomas Henry THOMPSON v. Doris THOMPSON.

Civ. 1937.

Court of Civil Appeals of Alabama.

Nov. 21, 1979.

David B. Cauthen and Steven E. Haddock, Decatur, for appellant.

Ralph E. Slate, Decatur, for appellee.

WRIGHT, Presiding Judge.

This is a divorce case. We affirm. The issues presented are: (I) Does the award of alimony in gross to the wife violate the husband's constitutional right of equal protection of the law? And (II) Was the award of alimony in gross so unfair to the husband as to constitute an abuse of discretion?

The marriage of the parties had endured for seventeen years. They were both employed in industry throughout their marriage. A significant marital estate had been accumulated. There were no children. During the last two years of the marriage, the parties had become combative and incompatible. The husband admitted before the court to acts of adultery though the divorce was not granted upon that ground. The husband had been employed for over twenty years by Ford Motor Company, earning in 1978 over $30,000. The wife had been employed at Monsanto Chemical Company for 23 years and earned in 1978 some $14,000. They were in their forties and in good health. Their future employment prospects were equally good, with retirement benefits accumulating.

In 1976 the parties constructed a new home after living frugally in a small apartment since their marriage in 1961. The home was built upon two acres of land given them by the wife's mother. They had saved over $66,000 and paid over $30,000 of the cost of construction in cash. They financed a loan from a bank for the remaining $31,000 cost by pledging two certificates of deposit of $18,000 each. Payments of $660 per month were being made to the bank. A portion of the payment was derived from interest on the certificates. The earnings of each went into living expenses and/or savings. There was no evidence of extravagance or lack of complete cooperation in accumulating the marital assets.

After hearing the testimony, the court entered judgment for divorce on the ground of incompatibility. The wife was awarded the major assets of the parties, including title to the home valued between $65,000 and $75,000. The balance owed for its construction of some $18,000 was ordered paid from the certificates of deposit. The remaining savings of approximately $28,000 were divided equally. The wife was awarded any savings in Monsanto Credit Union. She was given the 1975 model Mercury automobile and substantially all of the household furnishings. The husband was given the tractor and farm equipment, a truck and a Pinto station wagon upon which some $2,800 was owed and the money in the checking accounts. Though there is no valuation upon the various personal properties, the wife in receiving the home, its furnishings and one-half of the savings remaining after the house was fully paid for, received assets in value of $90,000 to $100,000. The real estate and cash awarded to her amounted to at least $85,000 in value.

The husband received some $14,000 in cash and personal property of undetermined value but with at least $2,800 indebtedness. The value of the award to the husband is unlikely to exceed $25,000.

The disproportionate award to the wife is charged on appeal as constituting an abuse of discretion.

Though the award to the wife from the marital assets is liberal, the trial court is afforded wide discretion in its judgment in divorce cases. Huckaba v. Huckaba, 336 So.2d 1363 (Ala.Civ.App.1976). That discretion is presumed correctly applied upon appeal and is to be set aside or revised only if determined to be so arbitrary, disparate and contrary to equity as to be clearly wrong and unjust. Weeks v. Weeks, 373 So.2d 848 (Ala.Civ.App.1979). The fact, if it be a fact, that we might not have reached the same decision had we been sitting as the trial judge is not reason for reversal. Novak v. Novak, 339 So.2d 77 (Ala.Civ.App.1976). To reverse for such reason would be substituting our judgment for that of the trial judge.

The trial court said in its judgment that the award to the wife was to supplant all the obligations of the husband to the wife, both present and future, arising from the marital relationship. It has been said by our courts that an award of alimony in gross is intended to effect a final termination of the property rights and relations of the parties. It involves consideration of many factors, including the earning ability of the parties, their probable future prospects, the source of the marital property, the contribution of each to its attainment, the duration of the marriage, the extent of the delictum of the offending party, and, in a measure, for the wife, compensation for loss of her right to future support and statutory inchoate property rights. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974); Ex parte Thompson, 282 Ala. 248, 210 So.2d 808 (1968); Frazier v. Frazier, 273 Ala. 53, 134 So.2d 205 (1961); Steiner v. Steiner, 254 Ala. 260, 48 So.2d 184 (1950).

In this case, the trial court could have and probably did consider the evidence that the parties had worked hard and saved with equal intensity for some fifteen years toward the end of building a comfortable home and...