Opinion
No. 2990972.
Decided February 9, 2001.
Appeal from Houston Circuit Court (DR-00-17).
Linda Ann Mayhann (the "wife") and James Learoy Mayhann (the "husband") were married in October 1990. In August 1990, the husband purchased a home and two acres of land, which became the marital residence. To aid them in paying down the debt secured by the mortgage on the marital residence, the husband borrowed $25,000 and, to secure payment of that debt, gave a mortgage on another house he owned and used as rental property (the "rental house").
The wife, who was 53 at the time of the divorce, did not work during the marriage. Before the marriage, she had been employed as a security guard. She developed emphysema and chronic obstructive pulmonary disease (COPD) during the marriage. She had no retirement funds at the time of the divorce.
The husband, who was 63 at the time of the divorce, had worked for Georgia Pacific Corporation during most of the marriage, but had since retired. He has a spastic colon and is a borderline diabetic. Unlike the wife, he has retirement funds, which are currently contributing about $1,000 per month to his income.
By August 1999, the parties' relationship had deteriorated; the husband sued for a divorce in January 2000. At trial, both parties testified that they had become incompatible and both parties testified concerning suspicions of adultery on the part of the other. The trial court divorced them, awarding the husband the marital residence, worth approximately $72,500 and subject to an indebtedness of approximately $30,800; the rental house, worth approximately $25,500 and subject to an indebtedness of approximately $19,500; his retirement accounts; three of the four automobiles owned by the parties; and a majority of the furnishings in the marital residence.
The husband's retirement accounts were not subject to inclusion in his separate estate for purposes of fashioning an allowance to the wife because the parties had not been married for at least 10 years. See Ala. Code 1975, § 30-2-51(b)(1).
The trial court awarded the wife $200 per month in periodic alimony for a period of two years, a 1991 Honda Accord automobile, a bedroom suite, a set of cookware, and a set of china. She was also awarded her personal effects. The husband was ordered to pay her attorney fees. After the wife filed a postjudgment motion contesting the division of property and the award of alimony, the trial court increased the alimony award to $350 per month, but left unchanged the two-year limitation and all aspects of the property division. The wife appeals, arguing that both the division of property and the award of alimony are inequitable.
This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App. 1995), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App. 1993).
The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties' property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App. 1989). In making the division, the trial court may consider several factors, including the parties' respective present and future earning capacities, their ages and their health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App. 1986). The property division made by the trial court will not be set aside on appeal absent a palpable abuse of that discretion. Id.
The trial court's judgment does not indicate its reasons for awarding the wife so little from the marital estate. However, the husband's brief to this court indicates that the husband believes that, pursuant to Ala. Code 1975, § 30-2-51(a), the rental house and the marital residence are his separate property, because he had owned them before the parties married in October 1990. The husband also, in his complaint and at trial, claimed that the houses were his separate property. The trial court's decision to award the wife so little from the marital estate is apparently based upon a mistake of law — that, because of the provisions of § 30-2-51(a), the marital residence and the rental house are not marital property.
The marital residence, in which the parties resided during the entire length of their marriage, can hardly be considered the husband's separate property. It was clearly "used regularly for the common benefit of the parties during their marriage." § 30-2-51(a). Based on the testimony at trial, we conclude that the rental house was also "used regularly for the common benefit of the parties during the marriage." Id. Although the husband had owned the rental house before the parties married and although it might otherwise have been his separate property, the husband testified that he had mortgaged the rental house to raise funds to pay down the debt secured by the mortgage on the marital residence. See Durbin v. Durbin, [Ms. 2990185, Dec. 1, 2000] ___ So.2d ___, ___ (Ala.Civ.App. 2000) (holding that the use of income derived from stock acquired before the marriage for payment of household expenses made the stock subject to inclusion in the husband's estate for purposes of § 30-2-51(a); Bushnell v. Bushnell, 713 So.2d 962, 964 (Ala.Civ.App. 1997) (holding that an investment account funded by an inheritance and used to pay joint income taxes, to make mortgage payments, and to pay for household needs was "used regularly for the common benefit of the parties during the marriage").
The record does not indicate whether the rental income derived from the rental house before the execution of the mortgage was placed into a joint account or was used for the parties' expenditures.
In light of the trial court's apparent failure to consider the marital residence and the rental house as marital assets, or even if the trial court did consider those assets to be marital property and purposefully chose not to award the wife more out of the marital estate, we must reverse the trial court's property division, together with its alimony award, because of the inequity of those awards. See Durbin, ___ So.2d at ___. Once the marital residence and the rental house are included as marital assets, the marital estate becomes worth approximately $30,300 — based on the total worth of assets at approximately $98,000, offset by approximately $67,700 in debts. Although the supreme court has recently reiterated the holding that a trial court can base its property division and alimony award on fault, see Drummond v. Drummond, [Ms. 1990033, Sept. 15, 2000] ___ So.2d ___, ___ (Ala. 2000), we can find no basis for the inequitable division in this case — the trial court did not make a finding as to fault, and the evidence indicates that neither party was more at fault than the other for the dissolution of the marriage. See Durbin, ___ So.2d at ___. On remand, the trial court should adjust the property division and alimony award as it considers appropriate in order to award the wife an equitable share of the entire estate.
The wife's request for an attorney fee on appeal is granted in the amount of $1,000.
REVERSED AND REMANDED.
Yates, P.J., and Pittman, J., concur.
Thompson and Murdock, JJ., concur in the result.