Wilkinson v. Wilkinson

• Decision Date: 21 September 2001
• Citation: 828 So.2d 924
• Parties: Bernard Schroder WILKINSON v. Claudia Kay WILKINSON.
• Court: Alabama Court of Civil Appeals

828 So.2d 924

Bernard Schroder WILKINSON v. Claudia Kay WILKINSON.

2000708.

Court of Civil Appeals of Alabama.

September 21, 2001.

Rehearing Denied November 30, 2001.

Certiorari Denied March 8, 2002.

Gerard J. Durward and G. John Durward, Jr., of Durward & Cromer, Birmingham, for appellant.

M. Richard Hughes, Birmingham, for appellee.

Alabama Supreme Court 1010651.

YATES, Presiding Judge.

On March 23, 2000, Claudia Kay Wilkinson sued Bernard Schroder Wilkinson for a divorce, alleging incompatibility of temperament and an irretrievable breakdown of the marriage. The husband answered and counterclaimed, seeking alimony and an equitable division of the marital property. After conducting an ore tenus proceeding, the court, on February 5, 2001, entered a judgment divorcing the parties. The judgment stated, in part:

"3. The parties jointly own real estate located at [description omitted]. The husband shall convey to the wife all of his right, title and interest in and to the above-described real estate by appropriate deed. The wife shall be responsible for and pay the mortgage indebtedness owed on the property, indemnifying [the] husband and holding him harmless thereon.

"4. The wife shall pay to the husband as periodic alimony the sum of Four Hundred and No/100 ($400.00) Dollars per month beginning [March 1, 2001], and on the first day of each month thereafter. The wife's obligation hereunder shall terminate upon the first to occur of the following events: the husband's death, the husband's remarriage, the husband's commission of those acts contemplated in Section 30-2-55, [Ala. Code 1975], or as otherwise provided by law.

"For so long as the wife has an alimony obligation to [the] husband set out in the paragraph above, the wife shall provide and maintain at her sole expense not less than Fifty Thousand and No/100 ($50,000.00) Dollars of insurance on her life naming the husband as beneficiary. The wife shall take no action to diminish or encumber the death benefits payable to the husband as provided for herein, and shall provide to the husband proof of continuing coverage at reasonable intervals. This provision constitutes [the] wife's consent for the husband to obtain such proof directly from the insurance company.

"5. The wife is vested with full possession, right, and title to all household furniture, furnishings, goods, wares, and appliances of the parties located at ... and the husband is divested of any interest therein, except that the husband shall have full possession, right, and title, to the following items:

"....

"6. The 1992 [Chrysler LeBaron] automobile is awarded to the Wife, and the husband is divested of any and all interest he may have therein.

"7. Except as otherwise provided herein, each party shall be responsible for paying his or her debts.

"8. Each party shall take their respective bank accounts in their possession and under their control."

The husband filed a postjudgment motion, arguing that the trial court's award of alimony and its division of the marital property were inequitable. The trial court, on February 27, 2001, amended its final judgment, stating:

"1. That the [husband's] motion is DENIED except that paragraph 3 of the final judgment of divorce is extended to correct a scrivener's error. The following is hereby added: In the event the wife moves, sells or otherwise transfers the property, or predeceases [the] husband, the husband shall receive one-half (1/2) of the then net equity of the house with the wife receiving the balance."

The husband appeals.

In reviewing a judgment of the trial court in a divorce case, where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court's judgment based on those findings will be presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). In Kluever v. Kluever, 656 So.2d 887 (Ala.Civ.App. 1995), this court stated,

"Although this court is not permitted to substitute its judgment for that of the trial court, this court is permitted to review and revise the trial court's judgment upon an abuse of discretion.

"The purpose of periodic alimony is to provide financial support for the recipient spouse, and it may be modified in the future, based upon changed circumstances. The trial court may consider many factors when awarding alimony, including: (1) the length of the marriage, (2) the conduct of the parties regarding the cause of the divorce, (3) the ability of each spouse to earn income, (4) the ages ... and health of the parties, (5) their future prospects and station in life, (6) the parties' education, experience, and job histories, (7) the recipient spouse's financial needs, and (8) the ability of the payor spouse to respond to these needs."

Id. at 889-90 (citations omitted).

The record indicates the husband was 68 years old and the wife was 57 years old at the time of the trial, and that they married in 1985, and separated in 2000, after a 15-year marriage. The husband was declared legally blind in 1982 and was receiving Social Security disability benefits at the time of the marriage. He currently receives $834 per month in disability benefits and he has no other source of income; although he worked before becoming disabled, he never accumulated a retirement fund or pension benefits. The wife earns approximately $55,200 per year; she receives an additional $300 per month in rental income from her mother; and she has a retirement account valued at $105,000.

The wife testified that the husband drank excessively during the first seven years of the marriage; however, according to both parties, the husband has been sober since 1993. She stated that the husband still has a problem with controlling his temper and that he had been seeing a counselor for anger management. She stated that she sold her townhouse and used the $9,000 equity along with $12,000 from her IRA to purchase the marital residence. She stated that the...