Parker v. Parker

639 So. 2d 1376, 1994 Ala. Civ. App. LEXIS 221, 1994 WL 195447
CourtCourt of Civil Appeals of Alabama
DecidedMay 20, 1994
DocketAV93000087
StatusPublished
Cited by1 cases

This text of 639 So. 2d 1376 (Parker v. Parker) 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
Parker v. Parker, 639 So. 2d 1376, 1994 Ala. Civ. App. LEXIS 221, 1994 WL 195447 (Ala. Ct. App. 1994).

Opinion

ROBERTSON, Presiding Judge.

This is a divorce case.

The parties, Mary Joan Parker and David H. Parker, were married in August 1973, and one child, a son, was born of their marriage in 1976. This was the second marriage for both parties.

In March 1992, while the wife was out of the state, the husband removed his belongings from the marital residence in Geneva County and moved to Eufaula, Alabama. On August 5,1992, the husband filed a complaint for divorce in the Geneva County Circuit Court. The husband requested that he be awarded certain property and joint custody of the minor child. The husband also requested that the wife be awarded the marital residence subject to the outstanding mortgage.

On August 19,1992, the wife answered and counter-petitioned on the grounds of abandonment and irretrievable breakdown of the marriage. The wife requested, among other things, that she be awarded certain property, custody of the minor child, child support, alimony, and that her health insurance be maintained by the husband through COBRA. The wife also requested that the husband be ordered to pay her attorney’s fees and that the trial court order the clerk of the court to hold a reference to determine periodic alimony and child support pending a final hearing of the matter.

On August 20,1992, the trial court entered an order directing the clerk of the court to hold a reference for the purpose of determining child support and periodic alimony pending a final hearing. On September 1, 1992, the clerk of the court submitted a report of reference to the trial court, determining that the husband should pay $523 per month as child support, $677 per month as alimony, and the wife’s attorney a $50 fee. On September 3, 1992, the trial court confirmed the report of reference.

On November 18, 1992, the wife filed a petition for a restraining order, alleging that the husband had removed personal properties from their jointly owned properties and the marital residence without her consent. The wife requested that the trial court restrain the husband from removing any other personal properties from their jointly owned properties prior to a hearing on the matter. That same day, the trial court entered an order, enjoining and restraining the husband from removing any personal properties from the jointly owned properties situated in Geneva County before the issuance of a final judgment of divorce.

[1378]*1378Following an ore tenus proceeding on June 2, 1993, the trial court entered a judgment of divorce on July 21, 1993. The trial court awarded custody of the minor child to the wife and awarded the husband reasonable visitation rights. The trial court ordered the husband to pay the wife $511 per month as child support and $500 per month as periodic alimony. The trial court also ordered that the special fund established by the parties to provide for the minor child’s college education be maintained jointly in the name of the husband and the wife. The trial court also expressly reserved the right to provide for the post-minority educational expenses of the minor child. The trial court further ordered the husband to pay all reasonable medical, dental, nursing, eye care, hospital, and other health care expenses incurred in the care and treatment of the minor child. The trial court also ordered the husband to take action as necessary to provide the wife with health coverage through COBRA; to pay the premiums due for the wife’s health coverage; to pay all debts of the marriage except the mortgage on the marital residence; and to maintain his life insurance in force with the minor child as beneficiary until his child support obligation is terminated. The wife was awarded the marital residence and the surrounding 5 acres of land, subject to the outstanding $16,000 mortgage; the membership in REA; a 1980 Toyota; and the proceeds recovered as a result of a medical malpractice suit, except for any damages attributable to direct expenses incurred by the husband. The husband was awarded 65 acres of land in Randolph County; a 1988 Lincoln Town car; a 1969 Ford pick-up truck; and the mobile home located in Eufaula. The trial court awarded the husband use of two and one-half acres of land next to the marital residence for the purpose of tending and harvesting the Christmas trees thereon until the existing trees are depleted. The husband was also awarded the right to use all equipment, tools, or machinery connected to the operation of the Christmas tree farm. The trial court further ordered the husband to pay 25% of the profits earned each year from the operation of the Christmas tree farm to the wife. Each party was awarded specific personal property.

On July 29, 1993, the wife filed a post-judgment motion, alleging that the property division was inequitable, that the judgment failed to address title to specific personal property, and that the awards of alimony in gross and periodic alimony were unjust and palpably wrong. The wife further alleged, among other things, that the award of child support was not in keeping with the Child Support Guidelines of Rule 32, Ala.R.Jud.Ad-min., that the judgment failed to address her claim for attorney’s fees, costs, and expenses, and that the trial court’s award to the husband of the use of two and one-half acres of her property constituted a cloud on her title. On August 6, 1993, the trial court amended the judgment of divorce, ordering the husband to pay the wife’s attorney a $500 fee, deposition costs, and other expenses incurred. On October 20, 1993, the trial court entered an order denying the wife’s post-judgment motion, finding that the award of child support was based upon the gross salary of the husband, that the property division was an equitable division, and that it had failed to provide for the 1987 Dodge Dakota, which it awarded to the wife. The trial court also stated that the husband’s right to use the two and one-half acres is subordinated to the wife’s refinancing of the mortgage or obtaining a home equity loan.

The wife appeals, contending that: (1) the trial court did not make an equitable division of the marital properties; (2) the trial court’s award of alimony in gross was plainly and palpably wrong and an abuse of discretion; (3) the trial court’s award of periodic alimony was plainly and palpably wrong and an abuse of discretion; (4) the trial court failed to correctly assess the husband’s income and, therefore, incorrectly applied the child support guidelines; and (5) that the trial court erred in refusing to grant the wife’s motion for a new trial.

While the wife sets out five issues on page 14 of her brief, she fails to properly argue any issues other than the division of property and the award of periodic alimony. Also, one of her issues relates to alimony in gross, which was not awarded by the trial court unless you consider that to be the same as the property division. The only citations of [1379]*1379authority given relate to the property division and periodic alimony. Rule 28(a)(5), Ala.R.App.P., provides that “[t]he argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.” See also McLemore v. Fleming, 604 So.2d 353 (Ala.1992).

Matters such as alimony and the division of marital property in a divorce action are committed to the sound discretion of the trial court. Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987).

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Cite This Page — Counsel Stack

Bluebook (online)
639 So. 2d 1376, 1994 Ala. Civ. App. LEXIS 221, 1994 WL 195447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-parker-alacivapp-1994.