Treusdell v. Treusdell

• Decision Date: 28 July 1995
• Citation: 671 So.2d 699
• Parties: Yong I. TREUSDELL v. Ronald L. TREUSDELL. AV93000777.
• Court: Alabama Court of Civil Appeals

Page 699

671 So.2d 699

Yong I. TREUSDELL v. Ronald L. TREUSDELL.

AV93000777.

Court of Civil Appeals of Alabama.

July 28, 1995.

Rehearing Denied Sept. 1, 1995.

Certiorari Denied Dec. 1, 1995

Alabama Supreme Court 1950003.

William P. Burgess, Jr., Huntsville, for Appellant.

Dinah P. Rhodes of Blankenship & Rhodes, Huntsville, for Appellee.

THIGPEN, Judge.

This is a divorce case.

After over 18 years of marriage, the husband filed for a divorce, alleging, inter alia, incompatibility. The wife filed an answer and a counterclaim, alleging, inter alia, that the husband had committed marital misconduct. Following ore tenus proceedings, the trial court divorced the parties, and, inter alia, awarded custody of the two minor children to the wife, ordered the husband to pay child support, reserved the issue of post-minority support, ordered the husband to pay the wife periodic alimony for three years or until further ordered, divided the marital properties, and ordered the parties to pay their own attorney fees and costs. The wife's post-judgment motion was denied by operation of law, and she appeals.

The wife raises the following issues: (1) whether the trial court abused its discretion in the alimony award to the wife; (2) whether the trial court erred in failing to award the wife a portion of the husband's retirement interests; (3) whether the trial court erred in failing to establish a post-minority support obligation for the husband; and (4) whether the trial court abused its discretion in not awarding the wife a reasonable fee for her attorney.

The ore tenus rule affords a presumption of correctness to the trial court's judgment; that presumption is based, in part, on the trial court's unique position to observe the parties and witnesses firsthand, and to adjudge their credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). The matters raised by the wife concerning periodic alimony and the property division are matters that lie soundly within the discretion of the trial court, and its judgment on those matters will not be disturbed on appeal, except where its discretion was palpably abused. Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987). In making its determinations, the trial court considers numerous factors. Lones v. Lones, 542 So.2d 1244 (Ala.Civ.App.1989). The property division is not required to be equal, but it must be equitable. Ross v. Ross, 447 So.2d 812 (Ala.Civ.App.1984). Additionally, even an award that favors one party over the other is not, in itself, an abuse of discretion. Jordan v. Jordan, 547 So.2d 574 (Ala.Civ.App.1989). Likewise, the matter of child support is discretionary, and in ruling on that matter, the court must consider the needs of the child and the parent's present ability to meet those needs, without speculation regarding the future. Morrison v. Kirkland, 567 So.2d 363 (Ala.Civ.App.1990). Similarly, the matter of attorney fees is within the trial court's discretion. Sanders v. Gilliland, 628 So.2d 677 (Ala.Civ.App.1993). Furthermore, even if this court would have determined differently, absent an abuse of discretion, this court is without authority to substitute its judgment for that of the trial court. Beckwith v. Beckwith, 475 So.2d 575 (Ala.Civ.App.1985).

The extensive record in this case includes transcripts and documents submitted by the parties. The trial court heard two days of testimony from numerous witnesses, including the parties, and had ample evidence to consider regarding the many factors appropriate for its consideration, including, inter alia, the financial conditions of the parties, their conduct, their health and stations in life, and their future prospects. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). The wife alleged marital misconduct in her counterclaim for divorce, and the record contains evidence and testimony concerning her allegation. Likewise, the trial court heard the husband's undisputed testimony regarding his accumulation of retirement benefits, and it had ample information regarding such to make its determination regarding its disposition.

The husband was previously married, but while that divorce "was pending," he met the wife when he was in the United States Army, stationed in Seoul, Korea. The wife, a Korean, married the husband in Korea in 1975, and subsequently, she moved with him when he returned to the United States. There were two children born during the marriage, and they are now older teenagers. The husband left the military service after approximately 10 years, and he has been a civil service employee since that time. He has an advanced degree and a consistent employment history. His annual salary at the time of the divorce exceeded $100,000. During the marriage, the husband saved approximately $26,000 in bonds for the purpose of financing their children's college educations.

The wife has a high school education and limited employment experience. Her work experience of approximately nine years during the marriage included working in military commissaries, handling "customer assistance," and handling accounts payable for a drug store. It is undisputed that during the marriage, the husband paid for the wife to attend numerous educational courses, including college courses, in order for the wife to obtain various employment skills, which could improve her business and vocational opportunities, and increase her proficiency in the English language. Although she obtained a community college degree in cosmetology in 1982, she has never worked in that field. Additional college coursework in the fields of computer and business were provided for her by the husband, and the husband testified that she utilized some of that education. It is undisputed that the wife was employed outside of the home for approximately one-half of the 18-year marriage.

At the time of the hearing, the wife was 44 years old, and, although unemployed, it is undisputed that she had sought employment since the parties had moved to Huntsville. The husband testified that the wife had not yet completed the requirements of obtaining the employment assistance provided for spouses by Redstone Arsenal. The wife testified that she was unable to work because she took medication for anemia, but that otherwise, she had no physical problems. The husband testified that the wife was in good health and had taken prescribed medication for anemia in the mid-1980's. The testimony conflicted whether the wife was taking any medication for anemia at the time of the hearing. It was undisputed that she was working at a drug store during the previous time she was taking medication for anemia, and that she had not been hospitalized or bedridden for anemia.

The husband testified extensively regarding his salary, the family expenses, their holdings, and the various marital properties. He testified that he had set aside an account of $6,000 at Redstone Federal Credit Union for the purpose of the children's educational expenses, but that the wife had withdrawn those funds. He also testified that he purchased savings bonds over a period of years that were to be used for the children's educational expenses. Their maturation value was approximately $26,000, and these were in the wife's possession. He testified extensively regarding numerous accounts held by the parties jointly and separately, including certificates of deposit worth approximately $22,000 held individually by the wife, their separate individual retirement accounts, and the wife's separate savings bonds of approximately $6,000.

It is undisputed that the husband had an extramarital affair with a co-worker in Virginia, but that the parties reconciled and moved to Alabama from Virginia together "to start over" when the husband received a job transfer. The wife argued that the husband's affair continued after moving to Alabama, while the husband asserted that the affair had ended before the move. The wife argued that their telephone bills and a computer communication proved that the affair continued. The husband asserted that the long distance telephone calls were business-related, because he was assisting others in the transition of relocation, and testimony of other witnesses bolstered the husband's assertion. The husband also testified that the date on the computer communication was incorrect.

The parties' children testified regarding the trauma of relocating, some of the family problems, and to events involving the husband's alleged paramour that occurred after the parties separated. The son testified that he wanted to stay in Virginia for his senior year in high school, and that he resented moving. He testified that he did not respect either of his parents, and that he had lost respect for his mother because "she was the one who made the family move." Additionally, he thought that his mother had blackmailed his father by threatening to tell his office about his affair if he did not move the entire family with him. The wife testified regarding a conversation involving the husband that she recorded prior to moving to Alabama. When specifically asked if she tried to blackmail the husband regarding the move to Alabama, she responded "sort of." The wife testified that the husband wanted to leave the family, but that she wanted the family to stay together. The wife's testimony was very clear that she desired to move the entire family to Alabama with the husband, and that she was very excited about the large new house in Alabama that she had chosen.

The record is replete with ample, disputed testimony regarding the wife's allegation of the husband's "marital misconduct," and the husband does not deny that he had had an affair before the parties reconciled and moved to Alabama together. The trial court divorced the parties on the ground of incompatibility, and ample record evidence indicates that the conduct of both parties contributed to the breakdown of the marriage.

There is also record evidence regarding the...