Opinion
AV92000497.
December 17, 1993.
Appeal from the Henry Circuit Court, Sidney Edward Jackson, J.
Billy Joe Sheffield, Dothan, for appellant.
Charles D. Decker and Kevin Walding of Hardwick, Hause Segrest, Dothan, for appellee.
This is a divorce case.
Joyce Marie Jones (wife) and Billy Gene Jones (husband) were married in 1973. One child was born of the marriage. In November 1992, the wife filed a complaint for divorce alleging a complete incompatibility of temperament and an irretrievable breakdown of the marriage. Contemporaneously with the filing of the complaint for divorce, and pursuant to the wife's request, the trial court entered an order awarding temporary custody of the child to the wife, and restraining the husband from disposing of marital assets, pending an order of the court. The husband thereafter answered the complaint and motioned for dissolution of the temporary restraining order.
Following ore tenus proceedings, the trial court divorced the parties. The final judgment awarded custody of the minor child to the wife, subject to the father's visitation, and it ordered the father to pay $332 per month in child support. Additionally, the trial court found the gross monthly incomes of the wife and the husband to be $1,158 and $2,400, respectively, and it provided:
"(5) [The wife] is awarded the 1991 Dodge with the obligation to make the monthly payments thereon and [the husband] is awarded his pickup truck with the obligation to make any payments on the indebtedness thereon. The minor child of the parties . . . is awarded ownership of the 1989 Chevrolet Cavalier which he drives with the responsibility of paying the monthly payments on the indebtedness thereon.
" . . . .
"(7) Each of the parties is ordered to pay the debts incurred by them since the separation and [the husband] is ordered to pay any outstanding indebtedness incurred by the parties prior to the separation.
"(8) The [husband] is awarded possession and title to the marital home of the parties located at Rt. 1 Box 36A Headland, Alabama and shall be responsible for the indebtedness thereon and is ordered to hold harmless and indemnify [the wife] for any liability for such indebtedness.
"(9) [The husband] is ordered to pay [the wife] temporary alimony in the amount of $350.00 per month commencing June 1, 1993.
"(10) [The husband] is ordered to contribute $500.00 towards [the wife's] attorneys fees herein not withstanding that amount that [the wife] has already paid to her attorney."
The wife's post-judgment motion for new trial, or, in the alternative, to amend the judgment, was denied; however, the trial court ordered that the term "temporary" alimony in paragraph (9) be deleted and replaced with the term "periodic" alimony. The wife appeals.
The wife contends that the trial court abused its discretion by awarding the husband the possession and title to the marital home, by not awarding child support and alimony pendente lite, and by not ordering the husband to contribute to the higher education or training of the child.
We note at the outset that when a trial court receives evidence ore tenus, its judgment is presumed correct and will be affirmed if supported by competent evidence. Daugherty v. Daugherty, 606 So.2d 157 (Ala.Civ.App. 1992). Moreover, a trial court's judgment regarding property division is presumed to be correct and will not be disturbed on appeal absent a showing of plain and palpable error. Bradford v. Bradford, 607 So.2d 286 (Ala.Civ.App. 1992).
The record reveals that the parties purchased the marital home utilizing approximately $35,000 in funds received by the husband as a result of a personal injury settlement, and a first mortgage loan of approximately $18,000. The record also indicates that the husband made all mortgage payments on the home from his earnings. Additionally, testimony established that the wife removed a significant amount of valuable personal property from the marital home prior to the trial.
When parties submit themselves to the jurisdiction of the court regarding jointly-held property, the court has the discretion to divide the property between the parties upon consideration of the equities and contribution by the parties. Foreman v. Foreman, 379 So.2d 89 (Ala.Civ.App. 1980). This division of property will not be disturbed on appeal, unless clear and palpable abuse of discretion is shown. Foreman, supra. There is no requirement that this division be equal, even in cases where the property was jointly owned. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App. 1986). Even a property division that favors one party over the other does not, in and of itself, constitute an abuse of discretion. Jordan v. Jordan 547 So.2d 574 (Ala.Civ.App. 1989). There are certain factors that the court considers when dividing marital property or awarding alimony. These factors may include "the source of their common property, the ages, sex and health of the parties, their future prospects and station in life, the length of the marriage, and, in appropriate cases, the conduct of the parties regarding the cause of divorce." Messina v. Messina, 599 So.2d 1189, 1191 (Ala.Civ.App. 1992).
The record discloses that each party had children by a prior marriage, each has been gainfully employed, the wife intermittently, during the marriage, and each is in relatively good health. Additionally, the record discloses evidence indicating that the husband made a substantial down-payment and payments on the marital home, and that the wife used the monies from her employment for her personal purposes. Even if this court would have decided differently, considering the record evidence and the appropriate factors, we cannot say that the trial court's award is so disproportionate as to be inequitable or to constitute an abuse of discretion. Absent an abuse of discretion, we are without authority to substitute our judgment for that of the trial court. Beckwith v. Beckwith, 475 So.2d 575 (Ala.Civ.App. 1985).
The wife's remaining issues concern whether the trial court abused its discretion by not awarding child support and alimony pendente lite, and by not ordering post-minority support for the minor child's education expenses. The wife's brief, however, offers no legal authority to support these issues. "This court pretermits decisions upon any issue that is not supported by citation of authority in brief." Cotton v. State, 591 So.2d 862, 864 (Ala.Civ.App. 1991).
Both parties' requests for attorney fees on appeal are denied.
For the foregoing reasons, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
ROBERTSON, P.J., concurs.
YATES, J., dissents.
I respectfully dissent. I think it inequitable, and therefore an abuse of discretion to award the only substantial asset of a 20-year marriage to the husband. I would reverse.
The facts are that in 1987 the parties, after 14 years of marriage, purchased their first home, for $56,000. Both parties signed an $18,000 note and the deed was in both names. The record contained no evidence as to the current value of the home; however, after payments have been made for six years on the $18,000 note, the balance owing on that note should be drastically reduced. The fact that the husband provided the money for the down payment and made the monthly payments should not be determinative in this instance.
The record revealed a wife who reared, or participated in rearing, eight children. Four of those children were from the husband's previous marriage and one son was born of this marriage. Three of the children were from the wife's previous marriage. Evidence also established that throughout the marriage the husband had been away from the home from Sunday until the following weekend, leaving the wife the major responsibility for managing the household. Further, the wife had worked outside the home for most of the marriage. She had worked full-time for the last eight years of the marriage, after all the children, except the parties' minor son, were grown and had moved from the home.
The evidence did not establish that the wife spent her money solely for personal purposes. Instead, the very limited testimony on this issue indicated that she purchased furniture for the home, and paid dentist and doctor bills for herself and the parties' minor son.
Considering all the assets divided by the trial court, and the disparity in the incomes of the parties, I find it inequitable for the wife to be awarded no interest in the home, the only substantial asset of the 20-year marriage. Although the division of property is not required to be equal, it must be equitable. Sketo v. Sketo, 608 So.2d 759 (Ala.Civ.App. 1992). I believe the wife's award was inadequate. See Sketo and Weatherly v. Weatherly, 469 So.2d 653 (Ala.Civ.App. 1985).