Welch v. Welch
| Citation | 49 Ala.App. 647,275 So.2d 162 |
| Parties | Harriet C. WELCH v. William M. WELCH. Civ. 100. |
| Decision Date | 21 March 1973 |
| Court | Alabama Court of Civil Appeals |
Truman Hobbs, Montgomery, for appellant.
James W. Cameron, Montgomery, for appellee.
This is an appeal from a decree of divorce granted on the ground of incompatability of the parties. The appellee-husband had filed a bill of complaint against the appellant-wife seeking a divorce on the ground that there existed between them such an incompatability of temperament that they could no longer live together as husband and wife. The appellant answered by denying that incompatability of temperament existed, and filed a cross-complaint seeking support and attorney's fees. A hearing was held on that complaint cross-complaint and answers, and a final decree entered.
The decree, in addition to dissolving the bond of matrimony, provided, in part, as follows:
The assignments of error question the award of alimony as being inadequate.
The tendencies of the evidence reveal that appellant and appellee were married in December 1967. Prior to this marriage appellee had been a widower for several years. He was the father of four children from his previous marriage. Appellant obtained a divorce from her first husband in order to marry appellee. She and her former husband had three children.
Shortly after their marriage, appellant and appellee obtained a divorce and then remarried. Their second marriage lasted about twenty-eight months, resulting in the divorce with which we are now concerned.
At the time of her marriage to appellee, appellant had been employed at the Union Bank & Trust Company of Montgomery for about twelve years. After marrying appellee she stopped working except for a short period when she assisted appellee in his office.
Apparently the marriage was not a happy one practically from its beginning. The testimony shows that appellant had trouble getting along with appellee's children and that appellee did not want appellant's child staying with them.
The appellant developed a mental depression and later attempted suicide. The appellee had been advised by appellant's physician of her mental state and the likelihood that she might attempt suicide. Appellant states that appellee made no effort to help.
The suicide attempt by appellant resulted in a very painful nerve injury and muscle atrophy. An ankle brace was fitted for her and physiotherapy was prescribed. Medicine was also prescribed for the pain and discomfort.
The doctor stated that gradual improvement had been made and he anticipated that she would continue to improve but he could only guess as to how long it would take for the pain to subside to the point where she could be employable.
Appellant had been living for some time prior to trial at John Knox Manor, a home for the elderly.
The psychiatrist who had treated appellant testified that she is still depressed not only because of the marriage relationship with appellee, but also because of her financial situation, living conditions and separation from her children. There had been no real improvement in appellant's depressive state except that there had been no other suicide attempts. The doctor believed that a change in living conditions and a more secure financial situation would help dissipate appellant's depressive state.
It was shown by the evidence that appellee was a practicing dentist in Montgomery, Alabama with an adjusted gross income of over $50,000.00 per year for the last three years. His assets were a $50,000.00 home with a small indebtedness on it, about $4,500.00 in stock, $6,000.00 in a checking account, and his dental equipment on which there was no indebtedness. There were four children, the oldest being twenty-one and a college student.
Appellant stated that she needed $820.00 per month for living expenses exclusive of medical costs, plus $10,581.00 for an automobile and furniture and furnishings for an apartment.
The amount of alimony to be awarded to the wife in a divorce case is addressed to the sound discretion of the trial court. Butler v. Butler, 274 Ala. 352, 148 So.2d 638. And the exercise of such discretion will not be revised on april unless the action of the court is deemed to be palpably in error. Davis v. Davis, 274 Ala. 277, 147 So.2d 828.
In determining the amount of alimony to be awarded, all relevant factors, such as the earning ability of the parties, future prospects, age, sex, health, station in life, duration of the marriage, and conduct of the parties, should be considered. Davis v. Davis, Supra.
We believe that the trial court considered these factors in arriving at its decree, for it appears from the evidence that the appellee is a middle-aged professional man in good health, with an excellent earning capacity and very good future prospects. It also appears from the evidence that the appellant is a rather young woman who had held a responsible position in a bank prior to her marriage with appellee, whose prospects for the future so far as her health is concerned are rather uncertain. It is possible that within a year or two she could be employable and able to support herself, but it is just as possible that she will not be able to support herself even then.
That possibility brings into question the effect of the award of alimony.
It is not clear from the decree whether the trial court intended to grant alimony in gross or periodic alimony for the indefinite future. For there to be an award of alimony in gross, two requirements must be met:
1. Both the amount and time of payment must be certain; and
2. The right to it must be vested and not subject to modification.
Le Maistre v. Baker, 268 Ala. 295, 105 So.2d 867. This court also said in Hora v. Hora, 46 Ala.App. 513, 244 So.2d 601, that, '. . . (f)or alimony to be in gross, it must be unequivocally stated in the decree.'
In the instant case the trial court did provide that...
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