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12/22/95 NEDRA GRICE v. DAVID L. GRICE

December 22, 1995

NEDRA GRICE
v.
DAVID L. GRICE



Appeal from Dale Circuit Court. (DR-94-382). Charles L. Woods, TRIAL JUDGE.

Released for Publication May 23, 1996. As Corrected.

Beatty, Retired Justice. Thigpen, Yates, and Crawley, JJ., concur. Robertson, P.j., and Monroe, J., concur specially in the result.

The opinion of the court was delivered by: Beatty

BEATTY, Retired Justice

Nedra Grice appeals from a judgment of divorce in which the trial court awarded her neither periodic alimony nor an attorney fee. We reverse as to those aspects of the divorce judgment.

Nedra Grice and David L. Grice were married in l970. The wife had a two-year-old son when the parties married, and they had a daughter within the first year of their marriage. Both children are now adults. In July 1994, the husband informed the wife that he wanted a divorce. The wife testified that she did not want the divorce, but that the husband was not willing to attend marriage counseling or to attempt a reconciliation.

The husband has a master's degree and is an educator. At the time of trial, he was employed by an Alabama high school as an assistant principal, at an annual salary of approximately $39,000. The wife attended college for two years, but discontinued her education after the birth of the parties' daughter. She has worked at various clerical jobs throughout the parties' marriage, and at the time of trial she was working in a clerical job and was earning approximately $15,600 per year. The husband testified that in his opinion the wife was underemployed and that he thought she could supplement her income by sewing, playing the piano, working with computers, or selling insurance. He stated that although she had utilized those skills during their marriage only occasionally to supplement her income, he thought she was capable of making more money if she wanted to do so. The wife testified that the most money she had ever made in a year from sewing was $500, and that even though she played the piano for her church she had never been paid to do so. She further testified that she had an insurance broker's license, but that she was qualified to sell only health insurance and had not been successful in her attempts to work in the insurance industry. She stated that she did not think she could make any money selling insurance at this time because she would need additional education and training to become qualified to sell other types of insurance in order to realize a profit.

The trial court entered a judgment of divorce on November 3, 1994. The trial court ordered the parties to sell the marital residence and awarded one-half of the sales proceeds to each party. The judgment provided for the husband to pay alimony of $350 per month to the wife until the sale of the marital residence, and for the husband to pay $15,000 as alimony in gross to the wife after the sale of the marital residence, in installments of $417 per month for three years. *fn1 The trial court ordered the wife to make payments on the debt secured by a first mortgage and to pay for utilities, and ordered the husband to make payments on the debt secured by a second mortgage, until the sale of the marital residence. The judgment further awarded to the wife 16 acres of unimproved real property adjacent to the marital residence; a time-share interest in a condominium in Florida; the funds in the husband's retirement account with Exxon Oil Company (a former employer); her 1986 Lincoln Town Car; designated furniture, furnishings, and household goods; and her personal belongings. The judgment further awarded to the husband a house and lot in his name that had formerly belonged to his parents; a lot and camper on Lake Eufaula; the funds in his retirement account with the Alabama Teachers' Retirement Association; his 1995 Chevrolet pickup truck and l979 Jaguar automobile; designated furniture, furnishings, and household goods; and his personal belongings. The judgment provided that the husband was to continue to provide health insurance for the wife until January 1, 1995, when she would become eligible for health insurance through her employer. Finally, the trial court ordered each party to pay his or her own attorney fees.

The wife then filed a motion requesting the trial court to alter or amend its final judgment or to grant a new trial. The wife argued that the property division was inequitable, that the periodic alimony award was inadequate, and that after the trial she had discovered a medical problem that was causing her left arm to atrophy and that could impair her ability to earn an income. At the hearing on the wife's motion, she testified that she had discovered a lump in her left arm and that she had sought a medical evaluation of it. The record reflects that after consultation with a neurologist, the wife was diagnosed with benign focal amyotrophy in the left upper extremity, *fn2 a condition that her doctor described as slowly progressive and for which no effective treatment is available. The wife stated that her arm had bothered her occasionally for a couple of years but that she had not noticed the lump until the day of the divorce trial, and she said that since that time she had begun to have more pain in her arm, tremors in her arm and hand, numbness in her fingers, and increased difficulty using her arm. She testified that her medical problem was beginning to affect her ability to use a computer, to play the piano, and to perform household tasks. She further testified that for two years the health insurance available to her through her employment would not cover medical expenses related to her arm because her condition would be considered a "pre-existing" condition. After the hearing, the trial court amended its final judgment, but only to the extent of ordering the husband to continue to provide medical insurance for the wife until further information could be obtained regarding her medical condition.

The wife contends on appeal that the trial court abused its discretion in failing to award permanent periodic alimony and in failing to require the husband to pay her attorney fee.

In a divorce case in which the evidence is presented ore tenus, the trial court's findings are accorded a presumption of correctness and will not be overturned except for plain and palpable error. Chambliss v. Chambliss, 587 So. 2d 406, 408 (Ala. Civ. App. 1991). The presumption of correctness is strengthened by the trial court's denial of a motion for new trial. Id. Moreover, awards of alimony and attorney fees are both matters within the trial court's discretion, and its judgment on these matters will not be reversed absent an abuse of that discretion. Id.

We first address the trial court's failure to award permanent periodic alimony to the wife. Because alimony awards are interwoven with the division of assets, the entire judgment must be considered in order to determine whether the trial court abused its discretion. Montgomery v. Montgomery, 519 So. 2d 525, 526 (Ala. Civ. App. 1987).

No fixed standards or mathematical formulae govern the determination of alimony or the division of property. Brand v. Brand, 444 So. 2d 866, 867 (Ala. Civ. App. 1984). Instead, trial courts should consider many factors in making such awards, including the age and health of the parties; the length of their marriage; their station in life and future prospects; their standard of living and each party's potential for maintaining that standard after the divorce; the value and type of property they own; and the source of their common property. Young v. Young, 515 So. 2d 32, 33 (Ala. Civ. App. 1987); Lutz v. Lutz, 485 So. 2d 1174, ll76 (Ala. Civ. App. 1986); Jones v. Jones, 454 So. 2d 1006, 1008 (Ala. Civ. App. 1984). The trial court should examine each party's earning capacity, including his or her training, education, experience, employment history, and earning record. Jones, 454 So. 2d at 1008. In appropriate cases, the trial court should also evaluate the conduct of the parties with reference to the divorce. Lutz, 485 So. 2d at 1176; Reynolds v. Reynolds, 376 So. 2d 732, 734 (Ala. Civ. App. 1979).

The parties are in their late forties and were married for almost 25 years before the husband unilaterally insisted upon a divorce. They have two children, both of whom are now adults. The husband has a postgraduate degree and had been promoted to his assistant principal's position shortly before the trial. The wife attended college, but did not graduate. Although she worked throughout the parties' marriage, she concentrated her efforts on her family rather than on her career. Her present salary is less than half of the husband's present salary. The wife has developed a medical condition that affects the use of her left arm and that may affect not only her ability to perform her ...


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