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01/23/69 L. B. WHITFIELD v. MARY ANN WHITFIELD

January 23, 1969

L. B. WHITFIELD, III
v.
MARY ANN WHITFIELD



Coleman, Justice, wrote the opinion.

Livingston, C.j., and Simpson and Bloodworth, JJ., concur.

The opinion of the court was delivered by: Coleman

COLEMAN, Justice.

The husband appeals from a decree granting to the wife a divorce from the bonds of matrimony on the ground of cruetly. 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 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. 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 tomobile 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 ...


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