Vail v. Vail

• Decision Date: 14 September 1977
• Citation: 360 So.2d 985
• Parties: Rubert Milton VAIL v. Rachael VAIL. Civ. 1050.
• Court: Alabama Court of Civil Appeals

Page 985

360 So.2d 985

Rubert Milton VAIL v. Rachael VAIL.

Civ. 1050.

Court of Civil Appeals of Alabama.

Sept. 14, 1977.

Rehearing Denied Oct. 19, 1977.

Perry Hubbard, Tuscaloosa, for appellant.

Olin W. Zeanah, Zeanah, Donald & Hust, Tuscaloosa, for appellee.

BRADLEY, Judge.

This appeal is from a final divorce decree. The appellee, Rachael Vail, petitioned the Circuit Court of Tuscaloosa County for a divorce from the appellant, Rubert Milton Vail. Her complaint alleged incompatibility of temperament, irretrievable breakdown of the marriage, habitual drunkenness, physical violence, and adultery as the grounds for divorce.

After a hearing ore tenus, the trial court divorced the parties on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage. Furthermore, the court found that the husband "was guilty of many acts of gross misconduct which, in the opinion of the court, directly caused the conflicts, marital problems and the eventual breakdown of the marriage." The court awarded alimony in gross to the wife.

In brief the husband urges that: (1) the division of the common estate of the appellant and the appellee was arbitrary and excessive; (2) the trial court erred in admitting evidence of adultery committed after the filing of a complaint for divorce without proof of adultery prior to such filing; and (3) the trial court erred in requiring appellant to testify as to his sexual relations with a woman to whom he was not married despite his invocation of the privilege against self-incrimination.

The record reveals that the husband and wife were married in 1954 and had been married approximately twenty-two years before they were divorced in 1976. They had one son by their marriage. The son was married and twenty years of age at the time of the divorce. The wife is forty-eight years old. At the time of the trial she was overweight and had on prior occasions suffered from dizziness and fatigue as a result of the medication she took in response to that condition. The husband is forty-four years old.

Throughout the marriage the wife had worked at Bryce Hospital and at the time of the divorce was earning approximately $7,647 a year from that employment. The husband had worked at several different jobs during the period of the marriage; however, since 1972 he had been engaged in the backhoe business. This business grossed almost $26,000 in the year prior to the divorce and it was recognized by both parties that the husband's backhoe business produced the largest portion of the family's income.

In addition, the husband and wife ran a trailer court which was located on their jointly owned 7.9 acre tract of land on Lake Tuscaloosa. This land was bought from their joint earnings and the proceeds from the sale of a parcel of land owned solely by the wife. The land was purchased prior to the construction of Lake Tuscaloosa and through his excavating efforts the husband was able to prevent a substantial portion of the property from being inundated by the lake. He also constructed the trailer park which was located on the land. The wife collected the rent, kept the books, and generally managed the business of the trailer park. The trailer park netted $3,400 per year. It is valued at $31,800.

The family home valued at $38,000 and two welding shops valued at $9,400 are also located on the 7.9 acre tract. The two welding shops are used in the husband's business. Both the house and the shops were constructed primarily from the labors of the husband and those he employed.

The parties maintained separate bank accounts and at the time of the divorce the wife's account contained $1,500 while the husband's held $3,600. The wife is entitled to receive a pension upon retirement from her employment provided she pays the $2,000 necessary to reinstate the pension.

The trial court's award of alimony in gross provided the wife with all of the family's real estate except for three-fourths of an acre which was vested in the husband. The wife's parcel contained the family home and the trailer court. The husband's parcel contained the two welding shops from which he ran his backhoe business.

In addition, the wife received the family automobile and almost all the household furniture. The husband retained for himself out of that furniture a bedroom suite and pool table. He also received all the shop and business equipment, two trucks, a bronco wagon, and the family boat.

The appellant-husband contends that the manner in which the trial court awarded permanent alimony was arbitrary and that the amount was excessive.

Although the grounds cited for the divorce in the trial court's decree were incompatibility and irretrievable breakdown, there was substantial testimony at trial as to the physical abuse of the wife and her son by the husband. Testimony also indicated that the husband drank heavily and stayed out until the early hours of the morning. There was additional evidence given that the husband had engaged in extramarital relations both prior to and after the filing of the divorce petition.

The trial court's award of alimony was based in part on its finding that the husband "was guilty of many acts of gross misconduct" which contributed to "the eventual breakdown of the marriage," and that the divorce was not the fault of the wife.

The trial court in granting a divorce has the authority to award to the wife alimony in gross, the amount being a matter within the discretion of the trial court as the circumstances may justify. Davis v. Davis, 274 Ala. 277, 147 So.2d 828. And such an award will not be revised or reversed on appeal in the absence of palpable abuse. Maddox v. Maddox, 276 Ala. 197, 160 So.2d 481; Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286.

Moreover, if an award is alimony in gross each case must stand upon its own facts and no mathematical formula may be applied. Huggins v. Huggins, 57 Ala.App. 691, 331 So.2d 704. Instead, a number of relevant factors must be considered. Among these factors are: the future prospects of the parties, their ages, sex, health, station in life, how long they were married, the sources from which the common property came, and in appropriate cases, the conduct of the parties with reference to the cause of the divorce. Sides v. Sides, 284 Ala. 39, 221 So.2d 677; Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715. And the conduct of the parties may be taken into consideration in awarding alimony even where the divorce is based on the "incompatibility" or "irretrievable breakdown" provisions of the divorce statute. Huggins v. Huggins, supra; Phillips v. Phillips, Ala.Civ.App., 344 So.2d 786.

Thus, the trial court was not in error in considering the husband's misconduct and the wife's lack of misconduct in the instant case. Indeed, testimony as to the husband's physical abuse of his wife and son, his acts of adultery and his excessive drinking might well warrant a finding by the trial court that the husband had engaged in "gross misconduct." ¹ On the other hand, the wife was guilty of no misconduct and her husband admitted that she had been a good wife to him.

These facts when considered with other factors such as the wife's current earning capacity from her employment at Bryce Hospital and the income from the trailer park, her age and health problems, the contribution which she made in the purchase and upkeep of the 7.9 acre tract, and the fact that the husband was permitted to retain the portion of their land which, though small in size, produced the bulk of the family income do not demonstrate that the trial judge abused his discretion, nor that as a matter of law or equity the award was excessive.

The appellant also contends that the trial court erred in admitting evidence of adultery committed after the filing of a complaint for divorce without proof of adultery prior to such filing.

The facts with regard to this matter are as follows. On February 26, 1976 the appellee filed a petition for divorce. On the same date the trial court entered an order granting her exclusive use of the common residence of the parties.

At the trial the wife and her son were both questioned as to the appellant-husband's actions prior to February 26, 1976. They gave testimony that prior to the date of the petition he had begun to keep late hours often coming home as late as 3:00 a. m. The wife testified that she suspected her husband of having an affair with a woman named Sally Hunter. The son testified that while driving by the home of Mrs. Hunter he had seen the family boat there, and had stopped and talked to his father and Mrs. Hunter who were together at that time. There was also testimony concerning acts of adultery between the husband and a second woman.

Furthermore, both appellee and appellant testified that after the divorce petition had been filed, Mrs. Hunter had gone to the appellee's home and asked her "to give her husband up."

On the basis of this testimony the trial judge compelled the husband, over the invocation of his constitutional privilege against self-incrimination, to testify on cross examination about his sexual activities with Mrs. Hunter. This testimony concerned activities which had occurred after the filing of the petition for divorce. The appellant argues that the admission of such evidence was irrelevant and violated his constitutional privilege against self-incrimination.

The fact of adultery may be inferred from circumstances leading to it as a necessary inference. White v. White, 278 Ala. 682, 180 So.2d 277. Incidents subsequent to the filing of the divorce petition are admissible to corroborate evidence of adultery prior to the date of filing provided adultery is alleged in the complaint. Hilley v. Hilley, 275 Ala. 617, 157 So.2d 215. In the instant case the complaint alleged adultery as one of the grounds for the divorce. At trial there was testimony which dealt with the allegation of adultery and this testimony concerned the...