Griffith v. Griffith

705 So. 2d 435, 1997 Ala. Civ. App. LEXIS 790, 1997 WL 628955
CourtCourt of Civil Appeals of Alabama
DecidedOctober 10, 1997
Docket2960326
StatusPublished
Cited by1 cases

This text of 705 So. 2d 435 (Griffith v. Griffith) 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
Griffith v. Griffith, 705 So. 2d 435, 1997 Ala. Civ. App. LEXIS 790, 1997 WL 628955 (Ala. Ct. App. 1997).

Opinion

RICHARD L. HOLMES, Retired Appellate Judge.

This is a divorce case.

The parties were married in March 1988. Three children were born of the marriage. The parties separated in August 1995, when the wife and the minor children went to Montana for a vacation with the wife’s family. In September 1995 the wife filed a complaint for divorce, requesting custody of the three minor children.

The husband filed an answer and a counterclaim for divorce, requesting custody of the three minor children. •

After a hearing the trial court issued a divorce decree, awarding custody of the three minor children to the wife, with visitation rights vested in the husband. The trial court ordered the husband to pay $967 per month as child support. The decree stated that if the husband exercised his six weeks of summer visitation, the wife was to pay the husband “a sum equal to one month’s child support.”

The trial court ordered the marital residence sold (by private sale, but if not sold within 180 days of the divorce decree, by public sale) and ordered that the net proceeds, after deducting the costs of the sale, be divided equally between the parties. The trial court also awarded each party his or her own savings accounts, checking accounts, credit card accounts, IRA accounts, retirement accounts, and/or stocks and bonds in his or her own name.

The wife filed a motion to alter, amend, or vacate the judgment and a motion for a new trial. Thereafter, the trial court issued an amended order, which primarily addressed the division of household furniture, accessories, etc.

The husband filed a motion, alleging that the trial court’s amended order effectively awarded to the wife all of the parties’ household furniture, accessories, etc. The wife filed a response to the husband’s motion and [437]*437a countermotion. Thereafter, the trial court issued a second amended order, which addressed the division of household furniture, accessories, etc.

The wife appeals.

On appeal the wife contends that the trial court abused its discretion in failing to award alimony to her, in dividing the marital property between the parties, and in determining the method of sale of the marital residence. The wife also contends that the trial court abused its discretion regarding the child support obligations imposed upon the parties.

It is well settled that the issues of alimony and the division of real and personal property in a divorce ease are issues which are committed to the sound discretion of the trial court. See 22 Ala. Digest, Divorce, Key Nos. 252.1, and 286(5). The trial court’s judgment will not be disturbed on appeal unless it is shown that the trial court plainly and palpably abused its discretion or unless it is shown that the trial court’s determination is clearly and obviously wrong. Peck v. Peck, 581 So.2d 1119 (Ala.Civ.App.1991).

The property division does not have to be equal, only equitable, under all the circumstances of the particular case. Brown v. Brown, 602 So.2d 429 (Ala.Civ.App.1992); See 22 Ala. Digest, Divorce, Key No. 252.2. In McCluskey v. McCluskey, 495 So.2d 66 (Ala.Civ.App.1986), this court outlined the factors that the trial court should consider when dividing the property in a divorce case. These factors include the length of the marriage; the parties’ ages, sex, health, and station in life; the future prospects of the parties; and the conduct of the parties regarding the breakdown of the marriage. McCluskey, 495 So.2d 66.

Initially, we would note that the division of the household furniture, accessories, etc., appears to be an equitable division of the personal property accumulated during the marriage.

Our review of the record reveals the following pertinent facts: The husband is a graduate of the United States Military Academy and also has a civil engineering degree from the University of Aabama at Birmingham.

The wife has a nursing degree and was a labor and delivery room nurse in the United States Army at the time of the parties’ marriage in 1988. The wife worked part-time as a nurse, most recently at Brookwood Hospital. In July 1994, after the birth of the parties’ youngest child, the parties agreed that the wife would remain home with the three minor children.

Since the parties’ separation, the husband has changed jobs. We would note that the husband reduced his income approximately $6,000 per year when he changed jobs. The husband currently works for the Department of Defense. The.husband testified as to the reasons for the job change — he “was offered a permanent position doing the same thing [he] was doing for Jones [Technology] in the same place, and the second reason is because that job offered the health insurance that was available in Kalispell [Montana, where the minor children reside with the wife].”

Prior to the parties’ separation in August 1995, both the husband and the wife were active in the reserves. Since the separation, the wife changed her active reserve duty, for which she received a monthly income and additional income for attending summer camp, to individual ready reserve (IRR) status. The wife received approximately $6,000 per year in income when she was on active reserve duty. The wife admitted that while on IRR status, she receives no compensation unless she performs some duty.

The husband also had to change his reserve job from a pilot to an engineer because, he said, his job with the Department of Defense required him to have a reserve job with the parallel military organization. The husband testified that while he is no longer eligible for flight pay, he earns approximately $300 per month from the reserves, plus compensation for the two-week summer camp.

Prior to the parties’ separation, the husband handled the family’s finances. Every month the husband gave the wife $900 to use for food, spending money, and miscellaneous gifts. The husband paid the mortgage, utili[438]*438ties, insurance, credit cards, and other family expenses. Each party was responsible for paying the charges on his or her own personal credit cards.

As one can see in the following testimony from the wife, she wants to enjoy the same lifestyle post-divorce that she enjoyed before the separation:

“Q. Are you asking the court to award you alimony and give you the same consideration that you were getting for support when you were living here in Alabama and not working and taking care of three small children on a full-time basis?
“A. I don’t understand your question. I’m sorry.
“Q. Okay. You were living in Birmingham, Alabama, before the move, the vacation in August of ’95, correct?
“A. Yes.
“Q. And you were not working as far as full-time employment?
“A. Yes.
“Q. You were not working as a nurse?
“A. No.
“Q. You were staying home taking care of the children?
“A. Yes.
“Q. And that was by agreement with your husband?
“A. Yes.
“Q. And pursuant to that agreement, he gave you money to spend, correct?
“A. Yes.

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Related

Grubbs v. Grubbs
729 So. 2d 346 (Court of Civil Appeals of Alabama, 1998)

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Bluebook (online)
705 So. 2d 435, 1997 Ala. Civ. App. LEXIS 790, 1997 WL 628955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffith-v-griffith-alacivapp-1997.