Weatherly v. Weatherly
| Decision Date | 03 April 1985 |
| Parties | Gail C. WEATHERLY v. James E. WEATHERLY. Civ. 4529. |
| Court | Alabama Court of Civil Appeals |
David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellant.
Gary C. Huckaby and Patrick H. Graves, Jr. of Smith, Huckaby & Graves, Huntsville, for appellee.
This is a divorce case.
The parties to this appeal were divorced on August 1, 1984. Under the terms of the divorce decree, the court ordered the husband to pay his former wife $868 a month in periodic alimony and $868 a month for support of the couple's two minor children, ages eighteen and thirteen. As further support and maintenance for the wife and children, the wife was awarded the use during her lifetime or until she remarried of a condominium, the purchase price of which was not to exceed $65,000, to be purchased by the husband with title in the names of the parties' three children. Taxes and insurance on the condominium are to be paid by the husband; the wife is to pay for the upkeep on the condominium.
As lump-sum alimony the wife was awarded an undeveloped lot worth about $20,000. In addition, the wife was awarded the furniture and household furnishings in the marital home acquired during the marriage. The wife was also awarded $7,500 as an attorney's fee and $8,405.95 for trial expenses. The wife appeals from this decree.
In her brief here, the wife argues that the award of lump-sum alimony and/or the division of property is so inadequate as to constitute a palpable abuse of the trial court's discretion. However, before we consider the merits of this argument, we will examine wife's contention that the trial court erred by refusing to require the husband to testify about his sexual relationship with a female in the state of Tennessee.
While testifying, the husband was asked several questions relating to his relationship with a female friend in Tennessee. To these questions the husband replied by invoking his fifth amendment privileges. The wife argues that the trial court erred by not requiring husband to answer these questions.
The record clearly reveals that prior to the questions concerning husband's sexual relationship with the Tennessee woman to which objections were sustained because of the fifth amendment privilege, the husband was asked if he had a sexual relationship with the Tennessee woman. The husband's answer to the question was, "I did." This answer was made prior to an objection and there was no motion to exclude the answer. See Brooks v. Everett, 271 Ala. 354, 124 So.2d 105 (1960). Consequently, there was evidence of the husband's adultery before the court. Moreover, the wife testified without objection that in the last few years of the marriage the husband had a female friend. Also, husband made statements in his deposition about his girl friend. The result is that there was considerable unobjected to evidence before the court of the husband's sexual misconduct, and the disallowed evidence would have been merely cumulative. Morgan v. Morgan, 402 So.2d 984 (Ala.Civ.App.), cert. denied, 402 So.2d 984 (Ala.1981). We, therefore, hold that even if there were error in sustaining the questions on the fifth amendment ground it was harmless. Spradlin v. Spradlin, 426 So.2d 462 (Ala.Civ.App.1983).
As to the merits of this appeal, we note at the outset that the division of property and award of alimony are within the sound discretion of the trial court and will not be reversed except for palpable abuse of that discretion. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981). No fixed standards exist for determining the amount of alimony or for dividing property. The division of property is required only to be equitable, not equal, according to the facts and circumstances of each case. Hinds v. Hinds, 415 So.2d 1122 (Ala.Civ.App.1982). Factors to be considered when making an equitable division of property and award of alimony are the future prospects of the parties, their ages, health, station in life, length of the marriage, and the conduct of the parties in regard to the cause of the divorce. Kyser v. Kyser, 456 So.2d 816 (Ala.Civ.App.1984).
At trial both parties placed blame for the breakup of the marriage on the other. The husband claimed that the wife drank excessively and spent money foolishly. The wife alleged that the husband committed adultery and was often intoxicated and physically and verbally abusive.
The trial court made no finding of fault. We conclude, after thoroughly examining the record, that the parties...
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