Gresham v. Gresham

797 So. 2d 1108, 2001 Ala. Civ. App. LEXIS 182, 2001 WL 470188
CourtCourt of Civil Appeals of Alabama
DecidedMay 4, 2001
Docket2991317
StatusPublished
Cited by2 cases

This text of 797 So. 2d 1108 (Gresham v. Gresham) 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
Gresham v. Gresham, 797 So. 2d 1108, 2001 Ala. Civ. App. LEXIS 182, 2001 WL 470188 (Ala. Ct. App. 2001).

Opinions

YATES, Presiding Judge.

Evon Thomas Gresham sued James Howard Gresham for a divorce on January 28, 1998, alleging incompatibility of temperament and adultery. The parties had been married in June 1981; three children were born of the marriage. The wife sought custody of the children, child support, alimony, and a division of the marital assets. The husband counterclaimed for a divorce, on April 7, 1999, alleging incompatibility and alleging that the wife had committed adultery and that attempts at reconciliation in the summer of 1998 had failed.

After conducting an ore tenus proceeding, the court, on April 29, 1999, entered a judgment of divorce, which, among other things, awarded the wife custody of the three minor children, ordered the husband [1110]*1110to pay child support and alimony, and divided the marital assets. The court later granted the wife’s motion to set aside that judgment; after holding hearings to clarify several agreements between the parties, the court, on February 6, 2000, entered an amended judgment. That judgment read in part:

“5. CHILD SUPPORT. That the father shall pay to the wife through the Circuit Court Clerk of Lauderdale County, Alabama, the sum of $2,250 per month which is approximately 20% of his monthly gross income beginning February 15, 2000. An administrative fee of $1 is to be paid with each weekly support payment. These payments shall be paid until the youngest child reaches the age of majority, marries, becomes self-supporting, emancipated or by further order of this Court [sic].
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“7. MARITAL RESIDENCE. The wife is awarded all right, title and interest in and to the marital residence and is to assume and pay the debts against the property which [include] the first and second mortgages. At such time as she sells said property or within sixty (60) months, whichever shall first occur, she will pay to the husband $62,000 which represents one-half of the present value of the equity less $8,000 withdrawn by the husband from the equity line of credit.
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“9. PERIODIC ALIMONY. This Court hereby reserves the jurisdiction and the right to award periodic alimony in the future.
“10. ALIMONY IN GROSS. The husband shall pay to the wife $150,000 as alimony in gross at the rate of $1,500 per month for 100 months with the first month’s payment and every succeeding payment due on or before the 10th day of each month beginning February, 2000.
“11. COBRA BENEFITS AND MEDICAL INSURANCE. That the husband shall pay the wife the amount of money necessary for her to obtain COBRA benefits for thirty-six (36) months unless the wife sooner obtains other health and medical insurance. Further, the husband is to maintain medical insurance on the children and pay all medically related costs not covered by such insurance or medical bills for the children.
“12. STOCKS AND INSURANCE POLICIES. The husband is ORDERED to pay to the wife within ten (10) days one-half of the proceeds from the sale of stock and one-half of the cash value of all life insurance policies. The stock options that the husband has not sold are awarded to the husband.
“13. LIFE INSURANCE. The husband is ORDERED to obtain a life insurance policy on himself with the wife named as beneficiary in an amount of $100,000 for the purpose of insuring the obligations that are ordered pursuant to this Decree. Additionally, the husband shall obtain life insurance in the amount of $50,000 for each child payable in trust and these policies shall remain in effect until the youngest child is emancipated.
“14. DEBTS. The wife shall be responsible for the debt to [Parisian], American Eagle and any other debts made in her name after January 15, 2000. The husband shall be responsible for all other remaining debts incurred by either party prior to January 15, 2000.
“15. CHAMPION SAVINGS PLAN AND RETIREMENT BENEFITS. This Court shall enter the appropriate Qualified Domestic Relations Order awarding to [the wife] one-half of the [1111]*1111Champion Savings Plan/401(k) Plan and one-half of the vested retirement benefits as they existed on January 15, 2000.
“The Court further reserves jurisdiction to amend this Order to comply with any requirements associated with this Qualified Domestic Relations Order.
“16. POSTMINORITY SUPPORT. The Court hereby reserves jurisdiction over the issue of [postminority support].”

The parties filed several postjudgment motions. The court amended its judgment on March 15, 2000, to allow the husband a credit for mortgage and child-support payments made in February and March 2000 and ordering the parties to file a joint tax return for 1999 and to “equally divide the proceeds refunded.” On May 3, 2000, the court amended the judgment again, requiring the husband to pay “the costs of correcting the siding system” and ordering that the wife provide documentation supporting debts she listed in her exhibit. On August 2, 2000, the court amended its judgment again to clarify a provision in the February 2000 judgment regarding the division and payment of the parties’ outstanding debts.

The wife appeals.

In reviewing a divorce judgment, in a case in which 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 correct and will not be disturbed 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 an appellate court must consider the entire judgment 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 when determining an alimony award and dividing marital property include the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; the parties’ station in life; the items of marital property and their sources, values, and types; and the conduct of the parties in relation to the marriage. Willing, 655 So.2d at 1067. Further, a division of marital property 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 fee may be allowed in a divorce case, in the discretion of the trial court. Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986).

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837 So. 2d 840 (Court of Civil Appeals of Alabama, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
797 So. 2d 1108, 2001 Ala. Civ. App. LEXIS 182, 2001 WL 470188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gresham-v-gresham-alacivapp-2001.