DuBois v. DuBois
DuBois v. DuBois
Opinion of the Court
The parties were married on September 2, 1978, and were divorced on June 13, 1997. A son and a daughter were born of the marriage; they were 15 and 13 years old, respectively, when the judgment of divorce was entered. Both parties appeal from the divorce judgment and raise several issues.
At the time of trial, the husband was 53 years old and the wife was 43 years old. The husband, who has both undergraduate and graduate degrees, earns approximately $118,000 a year as an engineer employed by the Department of the Army. The wife, who attended a community college for two years but does not have a college degree, has not been employed outside the home since the birth of their older child.
The husband argues that the trial court abused its discretion in awarding the wife custody of the two minor children. He argues that the trial court should have awarded the parties joint custody. This court has held:
Phillips v. Phillips,"Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow."
The husband contends that joint custody is presumed to be in the best interest of the children and that the trial court did not state its reasons for not awarding joint custody. Section §
The wife argues that the trial court abused its discretion in its award of visitation to the husband. Specifically, she contends that it is unfair for him to have visitation every weekend. The primary consideration in setting visitation rights is the best interest of the child. Speakman v. Speakman,
The husband was awarded all household goods and furnishings not awarded to the wife; shares of stocks in various corporations; the 1987 Cutlass Oldsmobile automobile; the 1984 Ford F150 truck; the Austin-Healy Sprite automobile; his IRA, valued at approximately $21,000; and his thrift savings account, valued at approximately $66,000. The husband appeals the award of 50% of his retirement to the wife. Section
"(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
"(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
"(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
"(3) The total amount of the retirement benefits payable to the noncovered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court."
The wife was awarded 50% of the husband's retirement benefits; however, the husband had been accumulating his retirement benefits for 27 years and the parties had been married only 18 years. The statute prohibits the trial court from including in the estate the value of benefits that had been acquired before the marriage. §
The husband also argues that the trial court abused its discretion in its division of *Page 311
the marital property, and the wife argues that the trial court abused its discretion by not awarding her periodic alimony and by not reserving this issue so that it can be addressed later. Because we reverse that portion of the trial court's judgment awarding the wife 50% of the husband's retirement benefits, we cannot determine whether the division of property or the failure to award periodic alimony was an abuse of discretion. Indeed, issues of alimony and division of property are interrelated, and, in determining whether the trial court abused its discretion in these awards, the appellate court must consider the entire judgment. Boykin v.Boykin,
The wife's request for an attorney's fee on appeal is denied.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
YATES and THOMPSON, JJ., concur.
ROBERTSON, P.J., and CRAWLEY, J., concur in part and dissent in part.
Dissenting Opinion
I dissent on the issue of visitation. This court has previously held that granting the noncustodial parentevery weekend visitation is not an abuse of discretion. Denneyv. Forbus,
ROBERTSON, P.J., concurs.
Reference
- Full Case Name
- Robert K. Dubois v. Karen A. Dubois. Karen A. Dubois v. Robert K. Dubois.
- Cited By
- 39 cases
- Status
- Published