Whitfield v. Whitfield, 3 Div. 366

• Decision Date: 23 January 1969
• Docket Number: 3 Div. 366
• Citation: Whitfield v. Whitfield, 218 So.2d 146, 283 Ala. 433 (Ala. 1969)
• Parties: L. B. WHITFIELD, III v. Mary Ann WHITFIELD.
• Court: Alabama Supreme Court

Page 146

218 So.2d 146

283 Ala. 433

L. B. WHITFIELD, III v. Mary Ann WHITFIELD.

3 Div. 366.

Supreme Court of Alabama.

Jan. 23, 1969.

Richard A. Ball, Jr., of Ball & Ball, Montgomery, for appellant.

Chas. A. Stakely, Jr., and Jesse M. Williams, III, of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.

COLEMAN, Justice.

The husband appeals from a decree granting to the wife a divorce from the bonds of matrimony on the ground of cruelty. The decree also awarded to the wife custody of the three daughters of the parties, whose respective ages are 8, 7, and 6 years.

The court found that the husband has a net income of $800.00 per month. The evidence supports the finding that this is the husband's 'take home' pay after deductions. The court ordered the husband to pay to the wife $100.00 per month per child, which amounts to $300.00 per month. The court ordered the husband to pay to the wife $200.00 per month 'as alimony,' and awarded to the wife all the husband's 'right, title and interest' in the house in which the parties had been living, and all the household goods and furnishings in the house other than the husband's personal effects. The court also gave to the wife a 1963 Ford Station wagon and ordered the husband to pay all outstanding bills of the parties and $1,900.00 fee for the wife's attorney and costs of suit.

The husband testified that the house cost $37,000.00 in 1960; that if he put it 'on the market today,' he would ask $40,000.00 to $41,000.00; that the mortgage on the house amounts to $27,941.15, due in monthly payments of approximately $180.00 per month.

The errors complained of are that the court erred in the awards to the wife in that the awards are excessive.

The husband sets out in brief a statement of his net worth showing assets of $61,473.46 and liabilities of $50,086.05, leaving a net worth of approximately $11,387.41. This balance sheet omits to show as an asset the stock owned by the husband in Alabama-Georgia Syrup Company.

The husband asserts that, by awarding to the wife the husband's equity in the house, the court has awarded to the wife property of a value greater than his entire net worth. He says the court gave the wife his equity in the house, which is worth from $12,000.00 to $13,000.00 and was greater than his entire net worth of only $11,387.41. The husband says such an award violates the rule that the amount of an award of alimony in gross ordinarily varies from one-half to one-third, or even less, of the husband's estate, citing Phillips v. Phillips, 221 Ala. 455, 129 So. 3; Pope v. Pope, 268 Ala. 513, 109 So.2d 521; and Leo v. Leo, 280 Ala. 9, 189 So.2d 558. He says further that the error is even greater because the award to the wife included also the automobile and household furnishings.

The husband argues also that the monthly award amounts to $500.00 which is five-eighths of his monthly net income which does not leave him enough money to live on and meet his obligations.

The trial court saw and heard the witnesses and we do not think that the $300.00 allowance for the children is excessive. We do not understand the husband to contend that it is. He does say that when the $200.00 for the wife is added, he is reduced to straitened circumstances and the award is excessive.

We understand that the decree has been construed by the wife to effect that she is obligated to pay the monthly mortgage payments. We accept this construction. Thus most of the wife's $200.00 allowance goes to pay the mortgage and leaves little for her support. The evidence, as we understand it, shows that she is not trained to earn a living and has never been employed. She has no assets, other than 152 shares of stock in Alaga Syrup Company. This stock...