Grice v. Grice
Grice v. Grice
Opinion of the Court
Nedra Grice appeals from a judgment of divorce in which the trial court awarded her neither periodic alimony nor an attorney fee. We reverse as to those aspects of the divorce judgment.
Nedra Grice and David L. Grice were married in 1970. The wife had a two-year-old son when the parties married, and they had a daughter within the first year of their marriage. Both children are now adults. In July 1994, the husband informed the wife that he wanted a divorce. The wife testified that she did not want the divorce, but that the husband was not willing to attend marriage counseling or to attempt a reconciliation.
The husband has a master's degree and is an educator. At the time of trial, he was employed by an Alabama high school as an assistant principal, at an annual salary of approximately $39,000. The wife attended college for two years, but discontinued her education after the birth of the parties' daughter. She has worked at various clerical jobs throughout the parties' marriage, and at the time of trial she was working in a clerical job and was earning approximately $15,600 per year. The husband testified that in his opinion the wife was underemployed and that he thought she could supplement her income by sewing, playing the piano, working with computers, or selling insurance. He stated that although she had utilized those skills during their marriage only occasionally to supplement her income, he thought she was capable of making more money if she wanted to do so. The wife testified that the most money she had ever made in a year from sewing was $500, and that even though she played the piano for her church she had never been paid to do so. She further testified that she had an insurance broker's license, but that she was qualified to sell only health insurance and had not been successful in her attempts to work in the insurance industry. She stated that she did not think she could make any money selling insurance at this time because she would need additional education and training to become qualified to sell other types of insurance in order to realize a profit.
The trial court entered a judgment of divorce on November 3, 1994. The trial court ordered the parties to sell the marital residence and awarded one-half of the sales proceeds to each party. The judgment provided for the husband to pay alimony of $350 per month to the wife until the sale of the marital residence, and for the husband to pay $15,000 as alimony in gross to the wife after the sale of the marital residence, in installments of $417 per month for three years.1 The trial court ordered the wife to make payments on the debt secured by a first mortgage and to pay for utilities, and ordered the husband to make payments on the debt secured by a *Page 774 second mortgage, until the sale of the marital residence. The judgment further awarded to the wife 16 acres of unimproved real property adjacent to the marital residence; a time-share interest in a condominium in Florida; the funds in the husband's retirement account with Exxon Oil Company (a former employer); her 1986 Lincoln Town Car; designated furniture, furnishings, and household goods; and her personal belongings. The judgment further awarded to the husband a house and lot in his name that had formerly belonged to his parents; a lot and camper on Lake Eufaula; the funds in his retirement account with the Alabama Teachers' Retirement Association; his 1995 Chevrolet pickup truck and 1979 Jaguar automobile; designated furniture, furnishings, and household goods; and his personal belongings. The judgment provided that the husband was to continue to provide health insurance for the wife until January 1, 1995, when she would become eligible for health insurance through her employer. Finally, the trial court ordered each party to pay his or her own attorney fees.
The wife then filed a motion requesting the trial court to alter or amend its final judgment or to grant a new trial. The wife argued that the property division was inequitable, that the periodic alimony award was inadequate, and that after the trial she had discovered a medical problem that was causing her left arm to atrophy and that could impair her ability to earn an income. At the hearing on the wife's motion, she testified that she had discovered a lump in her left arm and that she had sought a medical evaluation of it. The record reflects that after consultation with a neurologist, the wife was diagnosed with benign focal amyotrophy in the left upper extremity,2 a condition that her doctor described as slowly progressive and for which no effective treatment is available. The wife stated that her arm had bothered her occasionally for a couple of years but that she had not noticed the lump until the day of the divorce trial, and she said that since that time she had begun to have more pain in her arm, tremors in her arm and hand, numbness in her fingers, and increased difficulty using her arm. She testified that her medical problem was beginning to affect her ability to use a computer, to play the piano, and to perform household tasks. She further testified that for two years the health insurance available to her through her employment would not cover medical expenses related to her arm because her condition would be considered a "preexisting" condition. After the hearing, the trial court amended its final judgment, but only to the extent of ordering the husband to continue to provide medical insurance for the wife until further information could be obtained regarding her medical condition.
The wife contends on appeal that the trial court abused its discretion in failing to award permanent periodic alimony and in failing to require the husband to pay her attorney fee.
In a divorce case in which the evidence is presented ore tenus, the trial court's findings are accorded a presumption of correctness and will not be overturned except for plain and palpable error. Chambliss v. Chambliss,
We first address the trial court's failure to award permanent periodic alimony to the wife. Because alimony awards are interwoven with the division of assets, the entire judgment must be considered in order to determine whether the trial court abused its discretion. Montgomery v. Montgomery,
No fixed standards or mathematical formulae govern the determination of alimony or the division of property.Brand v. Brand,
The parties are in their late forties and were married for almost 25 years before the husband unilaterally insisted upon a divorce. They have two children, both of whom are now adults. The husband has a postgraduate degree and had been promoted to his assistant principal's position shortly before the trial. The wife attended college, but did not graduate. Although she worked throughout the parties' marriage, she concentrated her efforts on her family rather than on her career. Her present salary is less than half of the husband's present salary. The wife has developed a medical condition that affects the use of her left arm and that may affect not only her ability to perform her full-time job, but also her ability to enhance her income by sewing and playing the piano. The complete ramifications of the wife's difficulty with her arm are not known at this time.
The trial court awarded periodic alimony to the wife until the parties' house is sold, after which the husband is to pay the wife $15,000 in lump sum alimony, in 36 installments. The trial court did not, however, retain jurisdiction to award periodic alimony to the wife in the future. The trial court awarded the wife certain land and a time-share interest in a condominium, as well as half the proceeds from the sale of the marital residence. Under these circumstances, we cannot say that the trial court's division of property was inequitable.
We do conclude, however, that the trial court's failure to reserve the right to make a future award of periodic alimony was palpably wrong. See Grimsley v. Grimsley,
If a trial court either does not award periodic alimony in the divorce judgment or does not reserve the right to do so upon future consideration, its power to award alimony is permanently lost. Chambliss, 587 So.2d at 408; Grimsley, 545 So.2d at 77. In light of the disparity in the parties' incomes and earning potentials after a 24-year marriage, as well as the possibility of the wife's eventual ill health and disability, we conclude that the trial court abused its discretion in failing to reserve the right to award periodic alimony to the wife in the future. Therefore, we reverse this aspect of the divorce judgment. On remand, we direct the trial court to amend the divorce judgment so as to *Page 776 reserve the right to award periodic alimony to the wife.
We now address the trial court's failure to require the husband to pay the fees of the wife's attorney. It is well settled that the award of attorney fees in a divorce action is a matter within the sound discretion of the trial court.Slater v. Slater,
In all other respects, the judgment of divorce is hereby affirmed.
The wife's request for an attorney fee on appeal is granted in the amount of $1,000.
The foregoing opinion was prepared by SAM A. BEATTY, Retired Justice, Supreme Court of Alabama, while serving on active duty status as a judge of this court under the provisions of §
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.
THIGPEN, YATES, and CRAWLEY, JJ., concur.
ROBERTSON, P.J., and MONROE, J., concur specially in the result.
Concurring Opinion
I am compelled to write specially to point out that this court stated in Carnaggio v. Carnaggio,
The statement in the majority opinion regarding the generally accepted purpose of alimony is an incomplete statement of the law from Carnaggio and is contrary to the stated purpose for periodic alimony in cases decided by this court since Carnaggio. The general purpose of periodic alimony is to provide support to the dependent former spouse until she becomes self-supporting. Harris v. Harris,
I agree that the trial court should have reserved the right to award periodic alimony to the wife in the future should the wife's physical condition worsen and she becomes dependent. This court has recognized since Carnaggio was decided that the sole purpose of periodic alimony is the support of thedependent former spouse. Newton v. Newton,
MONROE, J., concurs. *Page 777
Reference
- Full Case Name
- Nedra Grice v. David L. Grice.
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