Reeners v. Reeners

611 So. 2d 1109, 1992 Ala. Civ. App. LEXIS 545, 1992 WL 337007
CourtCourt of Civil Appeals of Alabama
DecidedNovember 20, 1992
Docket2910472
StatusPublished
Cited by2 cases

This text of 611 So. 2d 1109 (Reeners v. Reeners) 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
Reeners v. Reeners, 611 So. 2d 1109, 1992 Ala. Civ. App. LEXIS 545, 1992 WL 337007 (Ala. Ct. App. 1992).

Opinion

RUSSELL, Judge.

Following an ore tenus proceeding, the trial court entered a judgment divorcing the parties on the ground of adultery by the husband. The court effected a division [1110]*1110of property, awarding the wife the majority of the contents of the marital residence, excepting a list of items awarded to the husband. The wife was also awarded $30,-000 of the $98,000 in a savings plan maintained by the husband through his employer; the balances in any bank accounts held in her name; the parties’ 1990 income tax refund in the amount of $3,311; and the proceeds from the sale of the marital residence, subject to two mortgages. She was granted exclusive use of the residence until its sale.

The trial court awarded the husband certain personal property from the marital residence; the $68,000 balance in the savings plan; two IRAs in his name (worth a total of $4,759); any receivables due from the sale of his restaurant; and a 1985 Chrysler New Yorker Fifth Avenue automobile. The court awarded each party one-half of the savings bonds accumulated during the marriage (worth approximately $5,600) and one-half of the balances in two bank accounts held in the husband’s name.

The court further ordered the husband to pay the wife periodic alimony of $150 per week, to be increased to $1,150 per month after the sale of the marital residence. Additionally, the husband was ordered to maintain a life insurance policy of at least $75,000, designating the wife as the irrevocable primary beneficiary, and to maintain health insurance for the wife under COBRA for three years from the date of the divorce. The husband was also held responsible for the payment of the two mortgages on the marital residence and for other expenses attendant to its upkeep, including utilities, until its sale. The wife was awarded an attorney’s fee of $4,252.

The husband then filed a motion for new trial, which was denied by operation of law. He now appeals, contending, inter alia, that the trial court’s award of alimony was financially oppressive and that its division of property was inequitable. We affirm.

At the outset we note that a trial court’s judgment after an ore tenus proceeding is afforded a presumption of correctness on appeal and will be set aside only if it is found to be plainly and palpably wrong. Rowe v. Rowe, 575 So.2d 584 (Ala.Civ.App. 1991). Additionally, a trial court has broad discretion in determining a property division and in awarding alimony, and such determinations may be reversed only for an abuse of discretion. Shelton v. Shelton, 595 So.2d 900 (Ala.Civ.App. 1992).

Factors that a trial court may consider when disposing of marital property or awarding alimony include the source of the parties’ property; the length of the marriage; the parties’ ages, health, and station in life; the parties’ earning abilities and probable future prospects; and, in appropriate cases, the conduct of the parties with respect to the cause of the divorce. Rabion v. Rabion, 551 So.2d 1080 (Ala.Civ. App.1989).

The record reveals that the parties were married for over thirty-six years and that three children — now ages thirty, thirty-four, and thirty-five years — were born of the marriage. At the time of trial, the wife was fifty-seven years old. She was employed as a telephone operator before and briefly during the marriage; however, she quit on her doctor’s advice during her first pregnancy and did not return to work after the birth of the child because, she testified, the husband wanted her to remain at home with the children. She was the primary caretaker for the children during the marriage. She has not been employed outside of the home for over thirty-four years, has a ninth-grade education, and possesses few marketable skills, aside from a craft hobby that she unsuccessfully attempted to develop into a business. She has never had a driver’s license and has relied on the husband and friends to provide her transportation. She suffers from diverticulitis and was hospitalized in 1987 for a nervous breakdown. She testified that she has a total of $200 in her bank accounts.

The husband was fifty-nine years old at the time of trial. He has a twelfth-grade education and is in relatively good health. He was employed with a food services company for approximately thirty-five years during the marriage, and at the time of trial held a managerial position with the company; however, in his post-trial motion [1111]*1111he alleged that his employment had been terminated since the trial court’s judgment. The husband’s weekly gross salary at the time of trial was $730.76. He testified that his take-home pay was $371 per week; however, his weekly pay stub indicated that, after mandatory and voluntary payroll deductions, his weekly net income was $427.93. In 1988 the husband purchased a restaurant, which he operated for approximately two years before selling it in January 1991.

The evidence reveals that for the last six years of the parties’ marriage, the husband was involved in an ongoing extramarital affair with another woman. The husband does not deny this relationship, and he testified at trial that he intended to move in with the woman after his divorce, although the woman was married at the time.

The wife testified that the parties’ marriage was beset by problems from its early stages, due in part to the husband’s drinking. The husband’s drinking continued throughout the marriage, and during the last ten years, the wife said, he frequently stayed out drinking late at night. The wife indicated that although the husband had always been the material provider for the family, he had been verbally, physically, and emotionally abusive throughout the marriage. She testified to specific instances of physical abuse. The parties’ daughter testified that the husband rarely participated in family events and would frequently demean the wife in front of the children and others.

On appeal the husband first asserts that the payments ordered by the trial court, which include periodic alimony, place an undue financial burden on him. He further maintains that the trial court abused its discretion in denying his motion for new trial, particularly in view of his claim in that motion that his employment had been terminated since entry of the divorce judgment.

However, we find that the husband’s claim that his employment had been terminated could not be considered by the trial court as “newly discovered evidence” forming the basis for a new trial. To suffice as newly discovered evidence, the evidence must have been in existence on the date of the trial. Pacifico v. Jackson, 562 So.2d 174 (Ala.1990). Because the husband’s alleged termination took place after the divorce judgment was entered, it was not properly before the trial court in his post-trial. motion and will not be considered by this court on appeal.

The husband argues that even when the termination of his employment is not considered, the divorce judgment requires him to keep to a schedule of payments prior to sale of the marital residence that will result in his incurring a monthly deficiency of $307.88. The record shows that, until the residence is sold, the husband is held responsible for payments including the following: the first mortgage of $252.24 per month; the second mortgage of $730 per month; COBRA insurance premiums for the wife of $255 per month; and alimony of $150 per week.

The husband’s argument is based on his contention that his monthly net income is $1,854.36.

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Cite This Page — Counsel Stack

Bluebook (online)
611 So. 2d 1109, 1992 Ala. Civ. App. LEXIS 545, 1992 WL 337007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reeners-v-reeners-alacivapp-1992.