Martin v. Martin
Martin v. Martin
Opinion
This is a divorce case.
James E. Martin (husband) and Beulah E. Martin (wife) were married in December 1963. The husband filed for divorce in February 1991, alleging irreconcilable differences, incompatibility, and adultery. The wife's answer and counterclaim denied the adultery allegations; however, she later admitted to having an adulterous affair.
Following ore tenus proceedings, the trial court divorced the parties in August 1991. Inter alia, the trial court ordered joint custody of the children, with the wife having primary custody; awarded the parties' marital home to the wife, with the husband ordered *Page 1169 to make mortgage payments; and assessed the husband $685 per month for child support. The husband appeals.
The husband contends on appeal that: 1) the trial court failed to consider the wife's adultery; 2) the trial court erred in failing to award custody of the children to the husband; 3) the trial court erred in the amount of the child support obligation; 4) the trial court erred in its division of property; and 5) the trial court erred in failing to hear all of the offered testimony.
The husband first contends that the trial court failed to consider the wife's adultery and he urges this court to reverse the judgment for failure to make a finding of adultery. He seems to argue that it was error for the trial court not to grant the divorce on the grounds of adultery, and that the wife's adultery was not reflected in other aspects of the judgment, i.e., custody, property division, etc. "A trial judge does not have to grant a divorce on the grounds of adultery or to divide the property in light of one party's adulteryunless the failure to do so would be palpably wrong in light of extensive evidence of adultery." Ex parte O'Daniel,
The husband next argues that the trial court erred in awarding custody of the children to the wife. Child custody determination is a matter that rests within the sound discretion of the trial court. Sayles v. Sayles,
The record reveals that the parties have three children; however, of the two children who are factors in this case, only one is a minor. The parties' daughter, who was 26 years old at the time of the divorce, is severely handicapped and developmentally disabled, requiring full-time care. The husband argues that the wife should not have been awarded primary custody of the children because of the wife's adultery. While a party's adulterous conduct can be a factor in the trial court's determination regarding custody, a parent will not be denied custody for every act of indiscretion. Murphree v.Murphree,
The husband's next contention is that the trial court erred in its award of child support. The issues concerning the division of property, alimony, and child support are committed to the discretion of the trial court, and its judgment will not be reversed absent a showing that the trial court has abused its discretion or that its determination is plainly wrong.Peck v. Peck,
In the instant case, the record reveals that the trial court considered many factors prior to setting the child support obligation. The trial court considers the ability of the parent to pay for the present needs of the child. Morrison v.Kirkland,
A trial court can require post-minority support for a disabled child who is incapable of self-support. Ex parteBrewington,
Likewise, we affirm the trial court's division of property. Property division incident to divorce need not be equal, but must be equitable in light of the evidence. Hinson v. Hinson,
The husband last argues that the trial court erred when it failed to hear all the offered testimony before reaching its decision. The videotaped record of the trial reveals that following the testimony of the two parties, the trial judge met with the attorneys in his chambers. The husband, in his brief, alleges that the trial court informed the parties in camera that it had already reached a decision, and that testimony from additional witnesses was unnecessary. The events transpiring in camera are not a part of the record. We are bound by the record and cannot consider any evidence or assertion dehors the record. Hinds v. Hinds,
Accordingly, the judgment of the trial court is due to be, and it is hereby, affirmed. The wife's request for this court to impose sanctions upon the husband's attorney is denied. The requests for attorneys' fees by both parties are denied.
AFFIRMED.
ROBERTSON, P.J., and YATES, J., concur. *Page 1171
Reference
- Full Case Name
- James E. Martin v. Beulah E. Martin.
- Cited By
- 15 cases
- Status
- Published