Willmore v. Willmore

• Decision Date: 05 February 1986
• Citation: 489 So.2d 594
• Parties: Charles WILLMORE v. Katherine WILLMORE. Civ. 5082.
• Court: Alabama Court of Civil Appeals

Page 594

489 So.2d 594

Charles WILLMORE v. Katherine WILLMORE.

Civ. 5082.

Court of Civil Appeals of Alabama.

Feb. 5, 1986.

Rehearing Denied March 12, 1986.

Certiorari Denied May 30, 1986.

Alabama Supreme Court 85 732.

Gary F. Burns and Douglas Burns for Burns, Shumaker & Davis, Gadsden, for appellant.

Jimmy F. Carnes for Carnes & Carnes, Albertville, for appellee.

BRADLEY, Judge.

This is a divorce case.

The parties to this divorce proceeding were first married in October 1975 and divorced in January 1978. They remarried on November 21, 1978. On January 22, 1985 the wife, Katherine Willmore, filed for divorce against the husband, Charles Willmore, alleging irretrievable breakdown of the marriage. A final decree of divorce was entered on June 18, 1985.

In the divorce decree the trial court awarded the wife as alimony in gross and as a property division the household furnishings in her possession and control, a Sunbird automobile, 8.53 acres of land, a certificate of deposit in the amount of $30,000, and $6,000 representing the husband's interest in a promissory note which the husband collected since the parties' separation. The husband was awarded a certificate of deposit in the amount of $100,000, a twenty acre farm that the parties lived on during their marriage, eight acres of land, several horses, dogs, and various farm equipment.

The husband appeals from the trial court's order, contending (1) that the trial court abused its discretion in awarding the wife the $30,000 certificate of deposit when the money used to buy the certificate came from the sale of lands that he had acquired previous to the parties' marriage, and (2) that the trial court abused its discretion in awarding the wife $6,000 when this money came from the sale of land purchased solely by the husband prior to the parties' marriage.

Since the trial court heard the testimony and observed the demeanor of the witnesses in this case, its findings are presumed correct and will not be overturned on appeal without a showing of an abuse of discretion. Skipper v. Skipper, 380 So.2d 921 (Ala.Civ.App.1980). The division of property and award of alimony are matters within the discretion of the trial court. Evans v. Evans, 434 So.2d 254 (Ala.Civ.App.1982), cert. quashed, 434 So.2d 257 (1983). In making a division of property or award of alimony, the trial court should consider the following factors: source of the property, future prospects of the parties, their ages, health, station in life, length of marriage of the parties, and, in appropriate cases, the conduct of the parties with respect to the cause of divorce. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980).

The wife is fifty-seven years old and has a seventh grade education. She works as a machine operator, making $3.50 an hour and averaging $124 a week. The husband is sixty-one years old and has a twelfth grade education. He is in the logging business, and raises and sells dogs and horses. He testified that he makes very little money from these ventures. The wife testified that she frequently helps him with the raising and tending of the horses and dogs. Both parties are in good health.

Prior to the parties' divorce the husband owned two certificates of deposit, one in the amount of $100,000 and the other in the amount of $30,000. The husband testified that these certificates of deposit came from money he received from the sale of his Asbury Farm and another farm, both of which he owned prior to the parties' marriage. He sold Asbury Farm for $210,000, payable in twenty yearly installments of $21,390, including interest at the rate of eight percent per annum. He also received $23,000 from the sale of the other farm. The husband stated that he had deposited the proceeds from these sales into the certificates of deposit. At the time of the divorce the husband had received seven of the twenty installments from the sale of the Asbury Farm. The wife testified that she had not contributed any money to the certificates.

The husband contends that the $30,000 certificate of deposit awarded to the wife was his separate property, acquired before the parties' marriage, and that, pursuant to section 30-2-51, Code 1975, such property could not be awarded to the wife. However, where property acquired prior to the marriage is regularly used for the common benefit of the parties, it may be considered by the trial court in dividing property and awarding alimony. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981); § 30-2-51, Code 1975. Although the trial court made no finding under section 30-2-51, we conclude that there was evidence that the property in question was used for the common benefit of the parties. Fuller v. Fuller, 418 So.2d 121 (Ala.Civ.App.1981), writ quashed, 418 So.2d 125 (Ala.1982); ...