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02/10/95 TEENA L. OWENS v. WILLIAM E. OWENS III

February 10, 1995

TEENA L. OWENS
v.
WILLIAM E. OWENS III



Appeal from Chambers Circuit Court. (DR-93-73). Howard F. Bryan, TRIAL JUDGE.

Rehearing Overruled March 17, 1995, . Released for Publication June 26, 1995.

Monroe, Judge. Robertson, P.j., Yates, and Crawley, JJ., concur. Thigpen, J., concurs in the result only.

The opinion of the court was delivered by: Monroe

MONROE, Judge

On January 12, 1994, after an ore tenus proceeding, the trial court entered a judgment dissolving the six-year marriage of Teena L. Owens (wife) and William E. Owens III (husband). In that judgment, the trial court specifically reserved the issues of property division, child support, and visitation, all of which were resolved in an order of the trial court entered on February 15, 1994, following another ore tenus proceeding. The wife raises several issues on appeal.

The wife contends that the trial court abused its discretion in dividing the property of the parties, and that its division was inequitable and unsupported by the evidence. The record shows that the trial court awarded the marital residence, with some restraints, to the wife, and awarded the couple's 15-acre tract of land to the husband. The husband is to make the mortgage payments on the marital residence, and, the trial court ordered, if the husband should sell his tract of land before the mortgage on the house is paid, proceeds from the sale shall first be applied to any outstanding mortgage indebtedness. The restrictions the trial court placed on the sale of the wife's house include giving the husband the right of first refusal if she decides to sell the house and ordering that if the house is sold before the couple's daughter reaches the age of majority, half of the proceeds shall be held to defray the child's educational expenses or for any extraordinary expenses necessary for the child's well-being. According to the order, if the wife sells the house after the child reaches the age of majority, she is entitled to all the proceeds from the sale.

When the trial court is presented the evidence in a divorce proceeding ore tenus, its judgment will be presumed correct if supported by the evidence. Nowell v. Nowell, 474 So. 2d 1128 (Ala. Civ. App. 1985). There are certain factors the trial court should consider in dividing marital property, including the earning ability of the parties, their probable future prospects, their ages, sex, and health, the length of the marriage, and, in appropriate cases, the conduct of the parties regarding the cause of the divorce. Landers v. Landers, 631 So. 2d 1043, 1044 (Ala. Civ. App. 1993). The division of marital property is within the sound discretion of the trial court, and its judgment will not be reversed absent a showing that it abused its discretion. Wiggins v. Wiggins, 498 So. 2d 853 (Ala. Civ. App. 1986).

After reviewing the record, we hold that the evidence presented in this case supports the trial court's division of marital property, and we cannot say that the trial court abused its discretion in dividing the property.

The wife also contends that in addition to being inequitable, the trial court's final decree is ambiguous. In her brief to this court, the wife wrote that "the trial court itself acknowledged that its order 'needs some clarification.'" The record shows that after a hearing on extending the husband's visitation privileges, which was held months after the trial court had denied the wife's motion to alter, amend, or vacate the judgment in this case, the trial court entered an order providing as follows:

"The former husband also raised a question concerning unpaid medical bills and certain personal property. The Court has reviewed the order dividing the parties' property and is satisfied that the order needs some clarification.

"....

"(4) The order dividing property said that the personalty had already been divided. Consequently, the Court is of the opinion that it does not have jurisdiction to modify or amend the property division. However, the Court would suggest that the portable fencing panels should follow the horses, that the duct, conduit, wire, electrical relays and starters, electrical breakers, electrical CF motors mic., electrical and AC fittings and electrical gate closers, should be relinquished to the former husband. In addition, the former wife indicated that the former husband should have a parking meter and an antique Double Cola can."

(C.R. 45-47, emphasis added.)

It would appear from the trial court's latest order that the portion of the order dividing the marital property that the trial court believed needed "some clarification" has nothing to do with the ambiguities the wife claims surrounds the sale of her house. The wife raised this issue to the trial court in her motion to amend, alter or vacate the judgment, which the trial court denied by operation of law. As stated above, the division of marital property is within the sound discretion of the trial court, and its judgment ...


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