Athey v. Athey

757 So. 2d 1196, 1999 Ala. Civ. App. LEXIS 902, 1999 WL 1207039
CourtCourt of Civil Appeals of Alabama
DecidedDecember 17, 1999
Docket2980964
StatusPublished
Cited by1 cases

This text of 757 So. 2d 1196 (Athey v. Athey) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Athey v. Athey, 757 So. 2d 1196, 1999 Ala. Civ. App. LEXIS 902, 1999 WL 1207039 (Ala. Ct. App. 1999).

Opinions

YATES, Judge.

Following an ore tenus proceeding, the trial court divorced the parties, awarding custody of the parties’ minor child to the husband, with supervised visitation to the wife. Further, the court awarded the wife $250 per month in periodic alimony for a period of one year and -ordered that the wife did not have to pay child support, because of her mental and physical disabilities. The wife appeals, arguing that the court abused its discretion in awarding the husband sole custody; in restricting her visitation with the child to six hours per month; and in failing to award her: an equitable division of the marital estate; a percentage of the husband’s military retirement income; an adequate amount of periodic alimony; and an attorney fee.

In reviewing a judgment of the trial court in a divorce case, where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court’s judgment based on those findings .will be presumed to be correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). This presumption of correctness is based on the trial court’s unique position to observe the witnesses and to assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). Additionally, matters of alimony and property division rest soundly within the trial court’s discretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). Factors the trial court should consider in its award of alimony and its division of property include the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; their station in life; the marital properties and their sources, values and types; and the conduct of the parties in relation to the marriage. Id., at 1067. . Further, a division of marital property in á divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Id. Additionally, an attorney’s fee may be allowed in divorce cases, in the discretion of the trial court. Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986).

The parties married in Korea on April 15, 1991, while the husband was in the United States Army. The wife, a Korean, moved to the United States with the husband about three months after the marriage. The parties have one child, born in the United States on October 3, 1993. The husband was discharged from the army after serving' for over 23 years; he sustained a severe head injury while on duty in 1993 and retired with military disability benefits. He is currently employed as a correctional officer with the Tallapoosa County sheriffs office, earning approximately $2,400 to $2,500 per month. The husband receives an additional $1,198 in military retirement and $450 in veteran’s disability benefits per month.

We note that the wife does not speak English and that an interpreter was used throughout the proceeding. The wife stated that she had completed high school in Korea; however, the husband testified that the wife has a limited understanding of the English language; that she cannot drive a motor vehicle; that she does not understand United States currency; that she has not worked while in the United States; and that she has been totally dependent upon him for her financial support, other than a few contributions she received from her family in Korea.

The wife was diagnosed with a drug-resistent form of tuberculosis around 1993. She had to travel to Denver, Colorado, to have a lobectomy performed, and she was [1199]*1199prescribed several medications to treat her tuberculosis. After she returned home, she did not continue taking her prescribed medications. The state health officer, acting through the state attorney general’s office, petitioned the probate court, pursuant to the “Notifiable Diseases Act,” § 22-11A-1 et seq., Ala.Code 1975, to have the wife committed for treatment, arguing that her failure to submit to the prescribed course of treatment would likely result in substantial harm to herself and would also pose an immediate and present threat to the public. The wife was subsequently placed in Tutwiler Prison in 1997 for treatment of her medical condition. The record indicates that while the wife was in Tutwiler Prison she was diagnosed with mental illness, and it indicates that she was transferred to Bryce Hospital for psychiatric care. She stated that she had not had a history of mental illness before her marriage, and she denied that she had been hospitalized for mental illness in 1992 during a trip to Korea to visit her family. The wife further denied, that upon her release from Bryce Hospital in November 1998 she had gone to live with a particular man whom she had met while at Bryce. A parent of that man testified that the wife had resided in the parent’s home and that the wife and the man did not have a romantic relationship; the man maintained a separate residence from his parents. The wife stated that she has been cured of her tuberculosis and that she no longer takes medication for her mental illness. She stated that, although she had been too ill to take English classes, she wants to learn English; that she wants to gain employment as a babysitter or as a waitress; and that she wants to care for her child.

The husband stated that he had noticed erratic behavior by the wife around 1992 when he returned home to find her throwing their furniture and personal belongings into the backyard while it was raining. He stated that the wife became increasingly violent by physically assaulting him and that he had had the wife hospitalized at Ft. Benning, where she was diagnosed with mental illness; the wife spent two weeks in the psychiatric ward and was prescribed medication. The husband stated that her condition improved for about one year; however, the wife stopped taking her medication.

The wife testified that the husband had been violent, stating that he had threatened her with a gun in front of their child; that he had tied her and choked her with a military rope; and that he had banged her head against the wall. She denied that she had attacked the husband or had been violent during the marriage. She presented testimony of a police officer who had been called to the Athey house in 1992. He referred to his incident report, which indicated that the wife had had rope burns on her wrists; that she was outside the house with no shoes on; and that she had stated she was afraid of her husband. The report also indicated that the husband had been asleep-when the officer arrived and that the wife had appeared to be intoxicated.

Both parties testified that they had been the primary caregiver for their minor child. The husband presented numerous character witnesses who described the father as a loving and caring parent. The husband. stated, as did his parents, that they had cared for the minor child throughout the mother’s ñlnesses and that the child had been in the father’s physical custody since the parties separated in October 1997.

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Related

Henderson v. Henderson
800 So. 2d 595 (Court of Civil Appeals of Alabama, 2000)

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Bluebook (online)
757 So. 2d 1196, 1999 Ala. Civ. App. LEXIS 902, 1999 WL 1207039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/athey-v-athey-alacivapp-1999.