Opinion
8 Div. 99.
July 12, 1962.
Appeal from the Law and Equity Court, Colbert County, Leonard I. Burt, J.
Beasley McCutchen, Tuscumbia, for appellant.
The final decree of the court fixing the alimony and support for the minor child is arbitrary and inequitable. McWilliams v. McWilliams, 216 Ala. 16, 112 So. 318; Neville v. Neville, 220 Ala. 57, 124 So. 107; Phillips v. Phillips, 221 Ala. 455, 129 So. 3.
A verdict which is palpably contrary to the weight of the evidence should be reversed on appeal. Code 1940, Tit. 7, § 236; Matthews Morrow v. Batson, 218 Ala. 378, 118 So. 749; Kraas v. American Bakeries Co., 231 Ala. 278, 164 So. 565.
Howell T. Heflin and Jame L. Hunt, Tuscumbia, for appellee.
When the evidence was heard ore tenus before the trial judge, there is presumption in favor of his findings, and unless his judgment is palpably wrong, it will not be disturbed on appeal. Crittenden v. Crittenden, 256 Ala. 219, 54 So.2d 489; Winning v. Winning, 262 Ala. 258, 78 So.2d 303.
If the divorce is in favor of the wife for the misconduct of the husband, and the judge makes an allowance to the wife, this allowance must be as liberal as the estate of the husband will permit. Code 1940, Tit. 34, §§ 31, 32; Davis v. Davis, 255 Ala. 488, 51 So.2d 876; Pope v. Pope, 268 Ala. 513, 109 So.2d 521; Steiner v. Steiner, 254 Ala. 260, 48 So.2d 184.
Appellant was the respondent in a divorce action and the final decree granted a divorce to appellee on the ground of cruelty, awarded the custody of their minor child to appellee, ordered appellant to pay $125 per month alimony and $75 per month for the support, maintenance and education of the minor and made provision for a property adjustment as to real property owned jointly by the parties.
The argument section of appellant's brief consists of one page. Most of the argument is directed to the proposition that the decree "fixing the alimony and support of the minor child is arbitrary and inequitable."
The evidence supported the charge of cruelty and there was also evidence of adultery but the court based the decree of divorce on the ground of "physical cruelty." We have said that where the husband is guilty of wanton or wicked conduct toward his wife, the allowance must be as liberal as the estate of the husband will permit under all the circumstances of the case. Steiner v. Steiner, 254 Ala. 260, 48 So.2d 184, and cases there cited; Tit. 34, § 32, Code 1940.
Appellant is 41 years of age and according to the testimony he had been earning between $100 and $160 per week. He owned a half interest in the homestead with his wife and owned other real estate with her. He owned two automobiles. The minor child had become 17 years of age about a month before the trial.
The trial court saw and heard the witnesses, and unless the decree is palpably wrong, we will not disturb it here. Winning v. Winning, 262 Ala. 258, 78 So.2d 303, and cases there cited.
We have examined all the evidence and we are unable to say that either the alimony award or the award for the maintenance and education of the minor child are arbitrary and excessive. Crittenden v. Crittenden, 256 Ala. 219, 54 So.2d 489.
Counsel for appellee has asked for a reasonable attorney's fee to be awarded for his services on this appeal. The fee of one hundred dollars is awarded. FraZier v. Frazier, ante p. 53, 134 So.2d 205; Gambrell v. Gambrell, 268 Ala. 671, 110 So.2d 248.
Affirmed, and allowance made for an additional solicitor's fee.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.