author: BRADLEY, Judge. WRIGHT, Presiding Judge

text:
    Rubert Milton VAIL v. Rachael VAIL.
    Civ. 1050.
    Court of Civil Appeals of Alabama.
    Sept. 14, 1977.
    Rehearing Denied Oct. 19, 1977.

      Perry Hubbard, Tuscaloosa, for appellant.
    Olin W. Zeanah, Zeanah, Donald & Hust, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This appeal is from a final divorce decree. The appellee, Rachael Vail, petitioned the Circuit Court of Tuscaloosa County for a divorce from the appellant, Rubert Milton Vail. Her complaint alleged incompatibility of temperament, irretrievable breakdown of the marriage, habitual drunkenness, physical violence, and adultery as the grounds for divorce.

After a hearing ore tenus, the trial court divorced the parties on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage. Furthermore, the court found that the husband “was guilty of many acts of gross misconduct which, in the opinion of the court, directly caused the conflicts, marital problems and the eventual breakdown of the marriage.” The court awarded alimony in gross to the wife.

In brief the husband urges that: (1) the division of the common estate of the appellant and the appellee was arbitrary and excessive; (2) the trial court erred in admitting evidence of adultery committed after the filing of a complaint for divorce without proof of adultery prior to such filing; and (3) the trial court erred in requiring appellant to testify as to his sexual relations with’ a woman to whom he was not married despite his invocation of the privilege against self-incrimination.

The record reveals that the husband and wife were married in 1954 and had been married approximately twenty-two years before they were divorced in 1976. They had one son by their marriage. The son was married and twenty years of age at the time of the divorce. The wife is forty-eight years old. At the time of the trial she was overweight and had on prior occasions suffered from dizziness and fatigue as a result of the medication she took in response to that condition. The husband is forty-four years old.

Throughout the marriage the wife had worked at Bryce Hospital and at the time of the divorce was earning approximately $7,647 a year from that employment. The husband had worked at several different jobs during the period of the marriage; however, since 1972 he had been engaged in the backhoe business. This business grossed almost $26,000 in the year prior to the divorce and it was recognized by both parties that the husband’s backhoe business produced the largest portion of the family’s income.

In addition, the husband and wife ran a trailer court which was located on their jointly owned 7.9 acre tract of land on Lake Tuscaloosa. This land was bought from their joint earnings and the proceeds from the sale of a parcel of land owned solely by the wife. The land was purchased prior to the construction of Lake Tuscaloosa and through his excavating efforts the husband was able to prevent a substantial portion of the property from being inundated by the lake. He also constructed the trailer park which was located on the land. The wife collected the rent, kept the books, and generally managed the business of the trailer park. The trailer park netted $3,400 per year. It is valued at $31,800.

The family home valued at $38,000 and two welding shops valued at $9,400 are also located on the 7.9 acre tract. The two welding shops are used in the husband’s business. Both the house and the shops were constructed primarily from the labors of the husband and those he employed.

The parties maintained separate bank accounts and at the time of the divorce the wife’s account contained $1,500 while the husband’s held $3,600. The wife is entitled to receive a pension upon retirement from her employment provided she pays the $2,000 necessary to reinstate the pension.

The trial court’s award of alimony in gross provided the wife with all of the family’s real estate except for three-fourths of an acre which was vested in the husband. The wife’s parcel contained the family home and the trailer court. The husband’s parcel contained the two welding shops from which he ran his backhoe business.

In addition, the wife received the family automobile and almost all the household furniture. The husband retained for himself out of that furniture a bedroom suite and pool table. He also received all the shop and business equipment, two trucks, a bronco wagon, and the family boat.

The appellant-husband contends that the manner in which the trial court awarded permanent alimony was arbitrary and that the amount was excessive.

Although the grounds cited for the divorce in the trial court’s decree were incompatibility and irretrievable breakdown, there was substantial testimony at trial as to the physical abuse of the wife and her son by the husband. Testimony also indicated that the husband drank heavily and stayed out until the early hours of the morning. There was additional evidence given that the husband had engaged in extramarital relations both prior to and after the filing of the divorce petition.

The trial court’s award of alimony was based in part on its finding that the husband “was guilty of many acts of gross misconduct” which contributed to “the eventual breakdown of the marriage,” and that the divorce was not the fault of the wife.

The trial court in granting a divorce has the authority to award to the wife alimony in gross, the amount being a matter within the discretion of the trial court as the circumstances may justify. Davis v. Davis, 274 Ala. 277, 147 So.2d 828. And such an award will not be revised or reversed on appeal in the absence of palpable abuse. Maddox v. Maddox, 276 Ala. 197, 160 So.2d 481; Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286.

Moreover, if an award is alimony in gross each case must stand upon its own facts and no mathematical formula may be applied. Huggins v. Huggins, 57 Ala.App. 691, 331 So.2d 704. Instead, a number of relevant factors must be considered. Among these factors are: the future prospects of the parties, their ages, sex, health, station in life, how long they were married, the sources from which the common property came, and in appropriate cases, the conduct of the parties with reference to the cause of the divorce. Sides v. Sides, 284 Ala. 39, 221 So.2d 677; Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715. And the conduct of the parties may be taken into consideration in awarding alimony even where the divorce is based on the “incompatibility” or “irretrievable breakdown” provisions of the divorce statute. Huggins v. Huggins, supra; Phillips v. Phillips, Ala.Civ.App., 344 So.2d 786.

Thus, the trial court was not in error in considering the husband’s misconduct and the wife’s lack of misconduct in the instant case. Indeed, testimony as to the husband’s physical abuse of his wife and son, his acts of adultery and his excessive drinking might well warrant a finding by the trial court that the husband had engaged in “gross misconduct.” On the other hand, the wife was guilty of no misconduct and her husband admitted that she had been a good wife to him.

These facts when considered with other factors such as the wife’s current earning capacity from her employment at Bryce Hospital and the income from the trailer park, her age and health problems, the contribution which she made in the purchase and upkeep of the 7.9 acre tract, and the fact that the husband was permitted to retain the portion of their land which, though small in size, produced the bulk of the family income do not demonstrate that the trial judge abused his discretion, nor that as a matter of law or equity the award was excessive.

The appellant also contends that the trial court erred in admitting evidence of adultery committed after the filing of a complaint for divorce without proof of adultery prior to such filing.

The facts with regard to this matter are as follows. On February 26, 1976 the appel-lee filed a petition for divorce. On the same date the trial court entered an order granting her exclusive use of the common residence of the parties.

At the trial the wife and her son were both questioned as to the appellant-husband’s actions prior to February 26, 1976. They gave testimony that prior to the date of the petition he had begun to keep late hours — often coming home as late as 3:00 a. m. The wife testified that she suspected her husband of having an affair with a woman named Sally Hunter. The son testified that while driving by the home of Mrs. Hunter he had seen the family boat there, and had stopped and talked to his father and Mrs. Hunter who were together at that time. There was also testimony concerning acts of adultery between the husband and a second woman.

Furthermore, both appellee and appellant testified that after the divorce petition had been filed, Mrs. Hunter had gone to the appellee’s home and asked her “to give her husband up.”

On the basis of this testimony the trial judge compelled the husband, over the invocation of his constitutional privilege against self-incrimination, to testify on cross examination about his sexual activities with Mrs. Hunter. This testimony concerned activities which had occurred after the filing of the petition for divorce. The appellant argues that the admission of such evidence was irrelevant and violated his constitutional privilege against self-incrimination.

The fact of adultery may be inferred from circumstances leading to it as a necessary inference. White v. White, 278 Ala. 682, 180 So.2d 277. Incidents subsequent to the filing of the divorce petition are admissible to corroborate evidence of adultery prior to the date of filing provided adultery is alleged in the complaint. Hilley v. Hilley, 275 Ala. 617, 157 So.2d 215. In the instant case the complaint alleged adultery as one of the grounds for the divorce. , At trial there was testimony which dealt with the allegation of adultery and this testimony concerned the husband’s activities prior to filing. Although such evidence may have been insufficient to prove the charge of adultery, it was sufficient to permit the trial court to admit evidence of his actions subsequent to the filing of the wife’s complaint.

However, such evidence, even though admissible, cannot be the basis for the granting of a divorce decree. Hilley v. Hilley, supra; Rudicell v. Rudicell, 262 Ala. 41, 77 So.2d 339. In the present case evidence of the husband’s adulterous activities was not the basis for the court’s decree. Instead, the court granted the divorce on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage. And, although the court did not grant the divorce on the grounds of adultery, evidence of the husband’s adulterous behavior after the filing of the petition was, nevertheless, relevant to the inquiry as to the amount of the award.

The trial court has the discretion to consider all conduct which is relevant to the cause of the divorce. Evidence of the husband’s actions after the filing of the divorce petition may be considered as relevant to his actions prior to the filing. Therefore, it cannot be said that as a matter of law the trial court erred in considering evidence of the husband’s adultery occurring after the filing of the petition for the purpose of fixing the alimony award.

Appellant further contends that his testimony with regard to his relationship with Sally Hunter after the filing of the complaint for divorce violated his constitutional privilege against self-incrimination.

Appellant’s contention presents a novel question. Although recognizing that the privilege against self-incrimination exists in civil cases, no Alabama case has spoken to the issue raised here.

Nonetheless, authority from other jurisdictions demonstrates that a husband or wife accused of adultery may invoke the privilege against self-incrimination with respect to questions concerning his or her alleged adultery with third parties. Hus band v. Wife, 201 A.2d 171 (Del.Super.); Payne v. Payne, 33 Md.App. 707, 366 A.2d 405. See Bishop v. Bishop, 157 Ga. 408, 121 S.E. 305; Schrad v. Schrad, 186 Neb. 462, 183 N.W.2d 922.

Individuals who testify in either civil or criminal proceedings have the right to refuse to answer relevant questions where the answer might tend to incriminate them in future criminal proceedings. Lefkowitz y. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274; McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158. And it is not necessary that an individual’s testimony will with certainty lead to his criminal prosecution and conviction. Payne v. Payne, supra. A witness is entitled to invoke the privilege where, as a practical matter, there is only a possibility of prosecution. Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 95 L.Ed. 1118; United States v. Miranti, 253 F.2d 135, 139.

In this jurisdiction adultery is a crime. Ala.Code, Title 14, Section 16. Although unlikely, there exists a possibility that appellant may be subjected to criminal prosecution under this statute. Therefore, appellant was entitled to invoke the privilege against self-incrimination when questioned about his alleged sexual relations with a woman who was not his wife. The trial court erred in compelling appellant to testify about his adulterous relationship with Sally Hunter.

Despite the fact that the trial court forced appellant to give testimony about his extramarital activities in violation of his privilege against self-incrimination, appellant was not prejudiced by the court’s action. It is axiomatic that a trial court will not be reversed for a ruling unless it is shown that prejudice to the appellant resulted therefrom. Speigle v. Chrysler Credit Corp., 56 Ala.App. 469, 323 So.2d 360, cert. den. 295 Ala. 420, 323 So.2d 367. In the present case, appellant was questioned on cross-examination about his adulterous relationship with Sally Hunter. The questions which were asked of the appellant at that time called for “yes” or “no” answers. When the court ordered him to respond, appellant answered “yes.” This answer merely corroborated the testimony already given by his wife and son. If he had answered “no,” or had been allowed to invoke his constitutional privilege, his answer or exercise of the privilege would have had no effect on the outcome of the case in view of the fact that the divorce was awarded on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage rather than adultery. Nor would a negative reply or reliance on the privilege against self-incrimination have affected the award of alimony since there was additional testimony from sources other than appellant that appellant had engaged in acts of misconduct including physical cruelty, adultery, and drunkenness. This additional testimony of appellant’s misconduct was sufficient to sustain on appeal the trial court’s award of alimony.

Our supreme court has held that where a cause is tried before a trial court without a jury, admission of illegal evidence raises a presumption of injury and requires reversal of judgment unless remaining evidence is sufficient to support the judgment. Pigford v. Billingsley, 264 Ala. 29, 84 So.2d 664. Error in compelling the husband to answer questions concerning his adulterous acts was not prejudicial in view of additional evidence supporting the decree rendered. See Meriwether v. Crown Investment Corp., 289 Ala. 504, 268 So.2d 780.

Moreover, the appellant will not be prejudiced by the trial court’s actions if he should subsequently be subjected to a criminal prosecution for adultery. When a witness is improperly compelled to answer a question, after claiming his privilege against self-incrimination, his answer will be deemed compulsory, and such answer may not be placed in evidence against him in a subsequent trial. Lefkowitz v. Turley, supra; State v. Lloyd, 152 Wis. 24, 139 N.W. 514.

There being no prejudice to appellant, the trial court’s decree is affirmed.

AFFIRMED; MOTION FOR ATTORNEY’S FEE DENIED.

HOLMES, J., concurs.

WRIGHT, P. J., dissents in part, concurs in part.

WRIGHT, Presiding Judge

(dissenting).

I must respectfully dissent from that part of the majority opinion which dismisses the extorted self-incriminating testimony of appellant-defendant as non-prejudicial and not requiring reversal.

The trial court forced the admission of adultery from defendant with threat of punishment for contempt after claim of constitutional immunity. The admitted adultery was committed after separation and suit by plaintiff. Contrary to statement of the majority, the admission was not corroborative of testimony of the wife and son. Their testimony was of events prior to separation and, at best, presented mere suspicious circumstances. The trial court by its coercive and plainly erroneous acts certainly gave positive indication that it considered such admission material to determining judgment in the case. Its subsequent findings and remarks in the record show that the court did consider the admissions in determining gross misconduct by defendant. To say that other acts of misconduct shown by the evidence were sufficient to sustain the award of alimony evades the issue. That issue is that it is not reasonably questionable that the forced admission of adultery was considered by the trial court in assessing the degree of misconduct and fault of defendant, and that the award of the great majority of the unencumbered capital assets of the marriage to the plaintiff was influenced by the inadmissible testimony. It must be concluded that the court was prejudiced by the admission because it took such strong measures to secure it. If it had already before it sufficient evidence, as the majority states, to render its judgment, it went to great extreme to secure more.

The issue, as I see it, is not whether there is other evidence which is sufficient to sustain the discretionary judgment of the trial court on appeal, but, rather, would the court have reached the same judgment had the extorted admission of adultery not been before it. Certainly, this court would have sustained on appeal a judgment much less generous to plaintiff and less punitive to defendant. I see a marked distinction between an inadvertent ruling as to merely cumulative evidence and a determined and aggressive act to secure constitutionally protected evidence of an inflammatory and prejudicial nature.

I would reverse as to the division of property and award of alimony and remand for further consideration about the admission of defendant.

      . Title 34, Section 32, Code of Alabama 1940 (Recomp. 1958) provides:
      “If the divorce is in favor of the wife for the misconduct of the husband, the judge trying the case shall have the right to make an allowance to the wife out of the husband’s estate, or not make her an allowance as the circumstances of the case may justify, and if an allowance is made it must be as liberal as the estate of the husband will permit, regard being had to the condition of his family and to all the circumstances of the case.”

      . In its brief to this court and in oral arguments before us, appellee contended that appellant “waived” his right to exercise the privilege against self-incrimination by taking the witness stand in his own behalf. Such is not the rule in this jurisdiction.
      In civil cases, a witness who discloses a fact or transaction, without invoking his privilege against self-incrimination, is deemed to have waived that privilege with respect to the particulars of such fact or transaction. International Brotherhood of Teamsters v. Hatas, 287 Ala. 344, 361, 252 So.2d 7, 22. However, the witness’s obligation to answer is limited to questions concerning the matter which he has already testified about rather than questions which involve other matters. And this is true, even though such other matters come within the scope of the action being tried. International Brotherhood of Teamsters v. Hatas, 287 Ala. at 362, 252 So.2d at 23. In the instant case appellant took the stand as a witness in his own behalf. He gave no testimony on direct examination which involved- the issue of adultery. On cross-examination he was questioned for the first time about his adulterous activities and he attempted to exercise the privilege against self-incrimination. The trial court erred in refusing to permit him to exercise the privilege since appellant had not waived his right to do so by merely taking the stand in his own behalf.
      Furthermore, waiver of a constitutional privilege must be voluntary. In the case before us, appellant would have been held in contempt had he refused to answer the questions asked of him by appellee’s attorney after the court had ordered him to respond to those questions. A waiver of the constitutional privilege against self-incrimination secured under a threat of contempt of court cannot be termed voluntary. Lefkowitz v. Turley, supra.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    In re Rubert Milton VAIL v. Rachael VAIL. Ex parte Rubert Milton Vail.
    No. 77-95.
    Supreme Court of Alabama.
    June 9, 1978.
    Perry Hubbard, Tuscaloosa, for petitioner.
    B. Wayne Randall and Olin W. Zeanah of Zeanah, Donald & Hust, Tuscaloosa, for respondent.
   EMBRY, Justice.

The issue presented by this writ of certio-rari, granted to review the Court of Civil Appeals, is whether the error of the trial court in compelling Rubert Vail to testify over his invocation of the privilege against self-incrimination was so prejudicial as to require reversal. We hold it was and will reverse the decision of that court and remand the cause to it.

For a complete account of this divorce action, see the Court of Civil Appeals’ opinion, Vail v. Vail, 360 So.2d 994 (Ala.App.1977) [Ms. 14 September 1977], For the purposes of our inquiry the following facts, found by the Court of Civil Appeals in its opinion, will suffice:

“The facts with regard to this matter are as follows. On February 26, 1976 the appellee filed a petition for divorce. On the same date the trial court entered an order granting her exclusive use of the common residence of the parties.
“At the trial the wife and her son were both questioned as to the appellant-husband’s actions prior to February 26, 1976. They gave testimony that prior to the date of the petition he had begun to keep late hours — often coming home as late as 3:00 a. m. The wife testified that she suspected her husband of having an affair with a woman named Sally Hunter. The son testified that while driving by the home of Mrs. Hunter he had seen the family boat there, and had stopped and talked to his father and Mrs. Hunter who were together at that time. There was also testimony concerning acts of adultery between the husband and a second woman.
“Furthermore, both appellee and appellant testified that after the divorce petition had been filed, Mrs. Hunter had gone to the appellee’s home and asked her ‘to give her husband up.’
“On the basis of this testimony the trial judge compelled the husband, over the invocation of his constitutional privilege against self-incrimination, to testify on cross examination about his sexual activities with Mrs. Hunter. This testimony concerned activities which had occurred after the filing of the petition for divorce.

The Appeals Court conceded “* * * the trial court erred in compelling appellant [Rubert Vail] to testify about his adulterous relationship with Sally Hunter.” However, a majority of that court held:

“Despite the fact that the trial court forced appellant to give testimony about his extramarital activities in violation of his privilege against self-incrimination, appellant was not prejudiced by the court’s action. * * *”

The Appeals Court stated the controlling rule of law enunciated by this court as:

“* * * where a cause is tried before a trial court without a jury, admission of illegal evidence raises a presumption of injury and requires reversal of judgment unless remaining evidence is sufficient to support the judgment. * * *”

A crucial factor is omitted in this statement. This court in Pigford v. Billingsley, 264 Ala. 29, 84 So.2d 664 (1956); quoting Deal v. Houston County, 201 Ala. 431, 78 So. 809 (1918), said:

“* * * ‘It has long been the rule that where a cause is tried by the court without a jury, the admission of illegal evidence raises the presumption of injury, and requires the reversal of the judgment unless the remaining evidence is without conflict and is sufficient to support the judgment.’ ” (emphasis added) See also Liberty National Life Insurance Co. v. Harrison, 274 Ala. 43, 145 So.2d 219 (1962).

In order for the remaining evidence to overcome the presumption of injury, in addition to being supportive of the judgment, that evidence must also be without conflict. We must-now proceed to determine whether or not the remaining evidence, other than that compelled over claim of constitutional privilege, is without contradiction.

In their briefs, both parties agree there is a conflict present in the evidence as to adulterous activities between Rubert Vail and Sally Hunter prior to the filing of the divorce action. However, Rachael Vail contends this conflicting evidence does not justify reversal of the divorce decree because Rubert Vail was not injured by that evidence since the divorce was granted on the grounds of irretrievable breakdown of the marriage and incompatibility of temperament, not adultery. We cannot agree.

Although the trial court did not grant the divorce on the ground of adultery, injury to Rubert Vail must be assumed from the large amount of property awarded the wife by the judgment. This assumption is favored by the fact that the illegal evidence was obtained by violation of Rubert Vail’s constitutional privilege against self-incrimination. It is generally recognized that the misconduct of one of the parties to a divorce action is relevant to a determination of the amount of the alimony award. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254 (1974), cert. den. 292 Ala. 721, 298 So.2d 260 (1974).

Because there is conflict in the remaining legal evidence, it cannot overcome the presumption of injury which arose from the admission of the illegal evidence. We cannot know to what extent the trial court was influenced by the evidence illegally obtained. Therefore, the decision of the Court of Civil Appeals is reversed and the action remanded to that court.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON and BEATTY, JJ., concur.

SHORES, J., not sitting.


author: BRADLEY, Judge.

text:
    Rubert Milton VAIL v. Rachael VAIL.
    Civ. 1050.
    Court of Civil Appeals of Alabama.
    July 12, 1978.
   On Remand from Supreme Court

BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama, 360 So.2d 992, it is considered that this cause should be reversed in accordance with the opinion rendered by the Supreme Court of Alabama on June 9, 1978 in the above cause, and remanded to the Circuit Court of Tuscaloosa County for further proceedings.

REVERSED AND REMANDED.

WRIGHT, P. J., and HOLMES, J., concur.


author: WRIGHT, Presiding Judge.

text:
    Timothy Gaston GOLDEN v. Wanda Gail GOLDEN.
    Civ. 1356.
    Court of Civil Appeals of Alabama.
    April 5, 1978.
    Rehearing Denied May 24, 1978.

      George W. Cameron, Jr., Montgomery,' for appellant.
    George P. Howard of Howard & Dunn, Wetumpka, for appellee.
   WRIGHT, Presiding Judge.

Defendant appeals from a judgment for divorce granted upon plaintiff’s petition with allegations of the existence of a common-law marriage. The issue is whether as a matter of law a common-law marriage existed between 'the parties. We find no such relationship existed and reverse.

The parties entered into a ceremonial marriage in 1970. They lived together as man and wife until shortly before May 6, 1976. On May 5, 1976, they went together to the office of an attorney and signed an agreement of separation which was to be incorporated into a judgment of divorce. Appropriate pleadings for the subsequent securing of the judgment were signed by agreement. After leaving the office of the attorney, the parties repaired to a motel and engaged in sexual relations. Subsequently, they discussed continuing their marriage for the sake of their two children and agreed to withdraw their agreement of separation. Plaintiff returned to the home of her parents and defendant returned to the home of his parents where they spent the night of May 5. The divorce was secured by the attorney on May 6. The par•ties spent the nights of May 6 and May 7 together at the home of plaintiff’s parents, telling the parents they had decided to withdraw the divorce, continue their marriage and rear their children.

On May 8, they returned with the children to the family home. The defendant promised to “stop” the divorce and continue the marriage, but defendant was “too busy.” They so resided until the following Saturday when they had an argument and plaintiff returned to the home of her parents with her children. Nothing further was done by either party to “stop” or set aside the divorce, though 30 days since the judgment had not expired.

The parties never again resided together, though plaintiff states that she regularly, until October 1976, met defendant clandestinely at his home or at motels and engaged with him in sexual conversation. She stated that as a. result she learned she was pregnant in July, but continued to have sexual relations with defendant until October. In July 1976, defendant began paying $80 support for the children as agreed in the divorce. A child was borne by plaintiff in March 1977. She states that she has not had sexual relations with a man other than defendant and that defendant is the father of the child.

What we have set out above is essentially the testimony most favorable to the wife. It is our opinion that the law when applied to the facts does not permit the finding of a common-law marriage.

To constitute a common-law marriage there must have been an agreement, a mutual understanding, words of assent to presently enter into the marriage relationship. Beck v. Beck, 286 Ala. 692, 246 So.2d 420 (1971). The parties must be then capable in law of making a marriage contract. Beck v. Beck, supra; Turner v. Turner, 251 Ala. 295, 37 So.2d 186 (1948). There must follow cohabitation as man and wife and a public recognition of the existence of the marriage. Goodman v. McMillan, 258 Ala. 125, 61 So.2d 55 (1952).

In this case, by plaintiff’s own statements, there was no mutual understanding or assent to enter into a new non-ceremonial common-law relationship, but rather to stop the completion of the pending divorce and to continue the relationship then existing. According to plaintiff, this mutual agreement was made and consummated by sexual intimacy on the afternoon of May 5, before the divorce was signed on May 6. At that time they were still joined by a ceremonial marriage and could not meet the second requirement of a valid common-law marriage; they were not legally capable of making such a second contract.

Plaintiff said that the statements of defendant during the week of cohabitation subsequent to May 6 were the same as he made on May 5, that is, he was going to “stop” the divorce and they would “continue” as man and wife. There is clearly no evidence of a mutual assent to a new relationship. Turner v. Turner, supra.

The clinching proof of the absence of any agreement of a new relationship is that after plaintiff left the home of defendant on May 15, her relationship, consisting entirely of sexual encounters, was clandestine, secret and opposed to a public recognition of a man and wife relationship. After the divorce was not “stopped” and became final, plaintiff’s own conduct negates a public recognition of a marital relationship.

To summarize, the brief re-union, accepting plaintiff’s testimony as true, was not in recognition of the ending of a marriage by divorcement and a remarriage by mutual assent and commitment, but was subject to a “stopping” of the divorce and continuation of the existing relationship. When that failed after only one week, plaintiff acquiesced in the divorce as a fait accompli. From that time on, she was only an occasional sexual partner. It may be presumed that it was during this latter relationship that the child was conceived. As unfortunate as it might be, the birth of the child cannot legitimate the liaison from which it came. The trial court erred in applying the law to facts. We must reverse.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: SHORES, Justice.

text:
    Ex parte Wanda Gail GOLDEN.
    77-569.
    Supreme Court of Alabama.
    July 28, 1978.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: HOLMES, Judge.

text:
    Ruby Moatts JOHNSON v. Paul T. JOHNSON.
    Civ. 1404.
    Court of Civil Appeals of Alabama.
    May 3, 1978.
    Rehearing Denied May 31, 1978.

      John M. Higgins, Clanton, for appellant.
    Alvin B. Poshee, Clanton, for appellee.
   HOLMES, Judge.

This is a divorce case.

The appellant-wife contends the trial court erred to reversal in granting the divorce in favor of the husband on the ground of voluntary abandonment. The wife further alleges error in the trial court’s division of property.

A review of the record reveals the following pertinent facts:

The parties to this action were married in 1935 and lived together until they, separated in May of 1972. Although a divorce petition was filed in August, 1972, the parties subsequently reconciled their differences, at least temporarily. After the reconciliation, the wife and husband divided all of their jointly owned personal property with the exception of the furniture and fixtures contained in their home. This personal property was worth approximately $35,000.

Much of the testimony in the record concerning the events of 1974, which culminated in the final separation, is conflicting to say the least. Most of this testimony revolved around allegations of threats of violence, loud talk, and other general unpleasantness not pertinent to the resolution of the issues in this case. Suffice it to say, the wife left the homeplace of the parties in July, 1974, and went to the home of her elderly mother and unmarried brother. The wife’s absence from the homeplace has been continuous since July, 1974. The husband has continued to reside in the home.

The husband filed for divorce in November, 1976, alleging voluntary abandonment on the part of the wife as ground for such divorce. The wife filed a cross-bill seeking a divorce on the ground of cruelty.

After an ore terms hearing, the trial court awarded the divorce in favor of the husband on the ground of voluntary abandonment. The court further awarded the homeplace and its surrounding 22% acres of land to the husband. The wife was awarded 214 shares of Rollins International stock, the value of which cannot be determined from the record. A division of the household furniture between the parties was also ordered by the court.

The wife appeals, alleging error in the trial court’s finding that the wife voluntarily abandoned the husband. Specifically, the wife contends the divorce should have been granted in her favor on the ground of cruelty.

Suffice it to say, in this regard, that in a divorce action when testimony is taken orally before the trial court, it is the appellate court’s duty to affirm the trier of fact if the decree is fairly supported by credible evidence. Put another way, it is the duty of this court to affirm the decree below if under any reasonable aspect it is fairly supported by credible evidence, even though this court may have a different view of the evidence. See Reid v. Reid, 53 Ala.App. 189, 298 So.2d 611 (1974); Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342 (1973).

As noted above, the wife left the homeplace of the parties in July, 1974, to live with her mother and brother. She has stayed there continuously since that time. In view of this, there is credible evidence in this instance to support a finding of voluntary abandonment by the wife. There is evidence, as contended by the wife, that the husband was responsible for the wife’s abandonment by virtue of the husband’s conduct. However, the husband denied this and it is the duty of the trial court to resolve this conflict.

The wife further alleges the trial court erred in its division of property. Specifically, the wife contends the husband should not have been awarded the homeplace and surrounding land.

At the outset, we note that a division of an estate in a divorce proceeding is an adjustment of property rights and equities between the parties as shall seem just by the trial court. See Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150 (1973). Such a division will not be' disturbed on appeal in the absence of proof that discretion was exercised in an arbitrary and unjust manner. See Conwell v. Conwell, 56 Ala.App. 188, 320 So.2d 694 (1975).

The record reveals that the husband acquired the 22*/2 acres of land from his family in 1936. Subsequently, the husband constructed the homeplace with his own money. The homeplace and its surrounding land was valued at $47,500. The record further reveals that the wife has a separate estate of approximately 198 acres which she had inherited. This was valued at approximately $67,200.

The law in Alabama is settled in that a property division does not require an equal division of the estate, but one which is graduated according to the nature of the case. See Horsley v. Horsley, supra. Furthermore, the court can look to the manner in which the property was acquired and determine what is an equitable division. There can be no mathematical formula to determine how the property should be divided. See Conwell v. Conwell, supra; Horsley v. Horsley, supra; 8 Ala.Digest Divorce <®^>252.

The evidence shows the trial court did not exercise its discretion in an arbitrary and unjust manner. The fact that the homeplace was awarded to the husband and the wife received stock does not require reversal. See Cobb v. Cobb, Ala.Civ.App., 352 So.2d 1384 (1977); Ayers v. Ayers, Ala.Civ.App., 352 So.2d 459 (1977).

This is particularly true in view of the fact that the appellant-wife has a considerably larger estate than the husband. An additional factor supporting the trial court’s decree involves the manner in which the homeplace was acquired. As noted above, the husband acquired the land from his family and he built the homeplace using his own funds. In view of this, in this instance, we cannot say the trial court erred in awarding the homeplace and its surrounding acreage to the husband.

Counsel for appellant, along the same line, additionally argues that the trial court erred in its distribution of household furniture. We note there is very little evidence regarding household furnishings. In view of the attendant presumption, as noted above, we cannot say that the trial court plainly and palpably erred in its award of household furniture and furnishings.

The above being dispositive of the issues in this case, the trial court is hereby due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Ex parte Ruby Moatts JOHNSON.
    77-592.
    Supreme Court of Alabama.
    July 28, 1978.
   SHORES, Justice.

WRIT DENIED.

BLOODWORTH, MADDOX, JONES and BEATTY, JJ., concur.


text:
    FRUEHAUF CORPORATION v. Howell Franklin PRATER.
    Civ. 1313.
    Court of Civil Appeals of Alabama.
    May 10, 1978.
    Rehearing Denied June 14, 1978.

      Robert L. Hodges of Ford, Caldwell, Ford & Payne, Huntsville, for appellant.
    A. P. Reich, II of Speake, Speake & Reich, Moulton, for appellee.
   WRIGHT, Presiding Judge.

Defendant employer appeals from judgment in a workmen’s compensation suit. We affirm.

Claimant was injured by accident in the line and scope of his employment with defendant, while working as a furnace operator in defendant’s plant at Decatur, Alabama on February 13, 1974. Plaintiff suffered second and third degree burns when a furnace charged with molten aluminum exploded. Approximately 55% of his body surface was burned.

After initial treatment in Decatur, plaintiff was transferred to the Burn Clinic at University Hospital in Birmingham. His physician then was Dr. Dimick. He was also treated there by Dr. Nepomuceno, a specialist in rehabilitation medicine. His treatment continued through several skin grafts and he was released to out-patient basis about July 17, 1974.

The evidence is without dispute that plaintiff suffered severe bodily injury and disfigurement. Due to his burns which resulted in loss of sweat glands in the affected areas, plaintiff is unable to work in hot conditions. Subsequent to his recovery from the burns, plaintiff worked for more than a year for plaintiff as a janitor. He was offered jobs in other areas of the plant but they were too hot. He declined supervisory positions because of his belief that he could not perform with only a sixth grade education. Prior to trial, plaintiff had become a psychiatric patient of Dr. Phillips and was hospitalized in a psychiatric hospital at time of trial.

As there is no dispute as to the physical consequences and disabilities of plaintiff, we will not further catalog them. The court in its judgment found that plaintiff suffered a total and permanent occupational disability because of (1) physical consequences from the burns such as loss of sweat glands, contractures of the skin, limited motion in joints, susceptibility of the burned area to infection and injury, even cancer, and difficulty of healing should injury occur; (2) disfigurement; (3) his age (43) with limited educational background and mental development; (4) psychiatric consequences of his injury. It is the propriety of the inclusion of the “psychiatric consequences” as a factor in determining permanent total disability that defendant presents as the primary issue on appeal.

The psychiatric consequence stated by Dr. Phillips to be suffered by claimant as a result of his injury is specifically designated as depressive neurosis. Depressive Neurosis is defined as “a severe onset of depression due to internal conflict or the loss of an object real or symbolic. It is characterized by morbid sadness, dejection, or melancholy and usually is accompanied by loss of sleep, loss of interest in activities, weariness, inhibitions, and loss of appetite and weight. This reaction is commonly seen in neuroses following trauma.” There is considerable evidence in this case that claimant exhibited most of the characteristics common to depressive neurosis including suicidal tendencies and loss of a feeling of self worth. There was ample evidence that the neurosis of claimant resulted from the trauma of his injury and the residual effects.

Defendant contends that the evidence discloses that in spite of claimant’s serious burns, his recovered physical condition is such that he only has a 5% disability of the body as a whole. Defendant submits that the disabling factor is not the physical condition but the mental condition of claimant. With some exception to defendant’s conclusions from the evidence, we agree with these contentions. We further agree that there is no specific definitive slot in the provisions of the Alabama Workmen’s Compensation Act into which a disabling neurosis may be fitted. However, we do not agree that the result must be disallowance of compensation.

There has been no similar factual situation presented to the appellate courts of this state so far as we have determined. However, there are ample precedents from other states with compensation laws similar to ours, including the state of Minnesota from which state our Workmen’s Compensation Act was largely copied. Wilborn Constr. Co. v. Parker, 281 Ala. 626, 206 So.2d 872 (1968). In the case of Hartman v. Cold Spring Granite Co., 243 Minn. 264, 67 N.W.2d 656 (1954), the court affirmed an award for “traumatic neurosis” and said as follows:

“The granite company concedes that if Hartman is a true neurotic he is entitled to compensation. Under our decisions it is clear that traumatic neurosis is com-pensable if it is the proximate result of the employee’s injuries and results in disability. Welchin v. Fairmont Ry. Motors, 180 Minn. 411, 230 N.W. 897; Rystedt v. Minneapolis-Moline Power Imp. Co., 186 Minn. 185, 242 N.W. 623.”

The position of the Minnesota case is well supported by other jurisdictions. Sizemore v. Canaveral Port Auth., 332 So.2d 23 (Fla.1976); Miller v. United States Fidelity and Guar. Co., 99 So.2d 511 (La.App.1957); Buck v. Beech Aircraft Corp., 215 Kan. 157, 523 P.2d 697 (1974). 1A Larson’s Workmen’s Compensation Law § 42.22.

Therefore, in recognition that psychic injuries and diseases are often as disabling as physical injuries and diseases and in response to the principle that the Workmen’s Compensation Act has a beneficent purpose and is to be liberally construed to serve that end, we follow the precedent of other states. We hold that if it is established by legal evidence that an employee has suffered a physical injury or trauma in the line and scope of his employment and he develops a neurosis as a proximate result of such injury or trauma which neurosis causes or contributes to an occupational or physical disability, such disability is compensable.

We recognize the possible difficulty of establishing the existence of or the precipitating cause of any neurosis or psychic disorder. We recognize that there is a distinct possibility of attempted malingering in the absence of objective symptoms. We believe, however, that the difficulty of proof may be overcome by use of expert medical testimony and/or objective evidence. We also believe that malingering will be minimized by the vigilance of a discerning trial judge.

Defendant insists in brief that the cause, existence and duration of a neurosis because of its nature should be established only by expert medical opinion. Though we are convinced that in many cases, the very nature of the alleged mental disease would require expert medical testimony to establish its existence and effect, we are not prepared to hold that such testimony is a required prerequisite to a finding of compensable disability in any case. Our courts have explicitly stated that expert medical testimony is not a prerequisite to a finding of a physical disability, its degree or duration. Though we discern a distinction between physical and mental diseases, we are not at this time convinced that there is a material difference in the difficulty of proof of their existence and effect.

Defendant contends there was no proof in this case to support the finding of a permanent total disability. We do not agree. The judgment of the trial court concluded that claimant had a permanent total occupational disability. The judge emphasized that his conclusion came from a combined consideration of the physical and mental disabilities. In addition to the medical testimony, with its reasonable inferences, the testimony of the claimant and others, the court saw and observed the claimant. This fact of observation is specifically stated in the judgment. In view of the rule of review of such cases by this court, we find the judgment supported by the evidence and thus safe from reversal for insufficiency of the evidence.

Defendant charges error in the direction of the trial court that it pay the cost of the treatment of claimant in the psychiatric hospital. Defendant contends it could not be assessed such cost because the cost was not proved and shown to be reasonable. The requirement of payment of medical cost is established by Tit. 26, § 293, Code of Alabama (1940) (Recomp.1958). That statute requires payment by the employer of the actual cost of reasonably necessary medical treatment. Our review of the evidence sufficiently supports the conclusion that the psychiatric treatment of defendant was reasonably necessary. Defendant was directed only to pay the cost thereof as required by statute.

Defendant also presents the issue of whether the trial court erred in awarding an uncommuted lump sum to claimant.

This issue brings us again to an amendment to Tit. 26, § 279(C)(9), Code of Alabama (1940) (Recomp.1958) passed by the legislature in 1973. The amendment generally provided that in cases presented to the court, the judge could decide whether compensation would be paid upon final judgment in installments or as an uncom-muted lump sum. The judge in this case directed payment in an uncommuted lump sum.

This court has had occasion to discuss the short-lived amendment in prior cases. Defendant contends the court had .no authority to award the uncommuted lump sum without a request for such payment being filed with the court and notice thereof to defendant.

Defendant’s contention is not supportable. The statute clearly gives to the court the power to grant an uncommuted lump sum award in any case presented to it by petition. We consider that the petition referred to in this part of the statute is the original petition invoking the jurisdiction of the court and seeking workmen’s compensation. The statute itself placed the defendant on notice that the court was authorized to award an uncommuted lump sum. It had opportunity to enter prior objection to the exercise of such authority and request a hearing thereon. We said in B. F. Goodrich Co. v. Butler, supra that there was no requirement of notice to the employer prior to entering such judgment. Constitutional due process is in no way involved in this case.

We find that no issue presented requires reversal. We therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . American Psychiatric Association, The Diagnostic & Statistical Manual of Mental Disorders, § 300 (2d ed. 1968).

      . There is an interesting and enlightening article entitled Neurosis Following Trauma: A Dark Horse In The Field of Mental Disturbance, written by J. Mark Hart in 8 Cumb.L.Rev. 495 (1977).

        .Ford v. Mitcham, 53 Ala.App. 102, 298 So.2d 34 (1974).

      . Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973).

      . Craig v. Decatur Petroleum Haulers, Inc., 340 So.2d 1127 (Ala.Civ.App.1976).

      .It was repealed in 1975.

      . Harris v. National Truck Serv., 56 Ala.App. 350, 321 So.2d 690 (1975); B. F. Goodrich Co. v. Butler, 56 Ala.App. 635, 324 So.2d 776 (1975).


author: BEATTY, Justice.

text:
    Ex parte FRUEHAUF CORPORATION.
    77-617.
    Supreme Court of Alabama.
    July 28, 1978.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    Pat ERWIN and Elaine Erwin v. SHILOH HOMES, a division of Winston Industries, Inc., a corporation.
    Civ. 1375.
    Court of Civil Appeals of Alabama.
    June 7, 1978.
    Rehearing Denied July 12, 1978.

      Richard W. Bell, Pelham, for appellants.
    James N. Brown, III, John F. Kizer, Jr., Birmingham, for appellee.
   HOLMES, Judge.

The Circuit Court of Shelby County, sitting without a jury, awarded appellants $1,000 for damages arising from the purchase of a defective mobile home. The appellants appeal.

Initially, Anniston Federal Savings and Loan Association filed suit against the appellants, alleging wrongful detention of a mobile home and nonpayment of loan in-, stallments. An application- for a writ of seizure was filed contemporaneously with the complaint. The appellants answered the complaint and filed a third party complaint against the appellee. The case was tried in August, 1974, on the issue of the writ of seizure and in June, 1976, and August, 1977, on the merits of the third party complaint. A judgment was rendered by the court in August, 1977, wherein the original complaint filed by Anniston Federal Savings and Loan Association was dismissed without prejudice. Additionally, a judgment was entered in favor of the appellants on its third party complaint awarding $1,000 as damages.

The appellants contend the trial court erred to reversal in that recission of the purchase contract is the proper remedy for relief in this situation. Secondly, appellants allege error by the trial court in its award of damages. Specifically, they contend such damages are inadequate. We determine that these are the dispositive issues on appeal. We disagree and affirm.

The record reveals the following pertinent facts:

The appellants purchased a mobile home from Ingram Mobile Homes in May, 1973. The mobile home was manufactured by the appellee. Appellants visited the appellee’s manufacturing plant to observe the method of construction of the mobile home and to select the home’s interior design. Suffice it to say that from the time the home was delivered to the retail sales lot, appellants complained to appellee concerning the furniture supplied with the mobile home. There were also complaints concerning defects in the bedrooms, bathrooms and living room.

Repairmen attempted to correct the defects but the repairs were not acceptable to the appellants. Thereafter, appellant-plaintiffs filed the third party complaint which is the basis of this appeal, alleging breach of warranty of habitability and seeking relief in the form of damages. This action was partially litigated in June, 1976. At that time, the trial judge spent considerable time in viewing and examining the mobile home on appellant’s premises.

After the trial court viewed the mobile home, appellants and appellee entered into an agreement to complete the repairs to the home. These repairs were unsatisfactory to the appellants and the case was then reset for completion of the litigation in August, 1977.

At the conclusion of the lawsuit in August of 1977, the trial court, after viewing the mobile home and taking into consideration sums expended by the appellee in attempting to repair the home, awarded appellants $1,000 as damages. The damages were based on the defective nature of the home. The appellants appealed.

At the outset, appellants contend the trial court should have awarded recission of the purchase agreement as the remedy in this case. However, as noted above, the appellants’ third party complaint was based on the breach of a warranty of habitability and sought relief in the form of damages.

Furthermore, we would note the following exchange between the parties, as reflected by the record, at the June, 1976, hearing:

“MR. BROWN: Your Honor, it is my understanding, from the complaint, that a decision is not being asked for, but that damages are being asked for and, if they are not saying that they are also asking for an alternative relief, we would object to them, at this point, asking for an alternative relief decision without the presence of Anniston Federal. It seems to me, that the third party complaint could go on, if we are just talking about damages.
“THE COURT: Yes, sir, I tend to agree with you.
“MR. JOHNSON: We have no objection.
“THE COURT: All right, let the record show that the Third Party Plaintiffs or the Third Party Defendant has no objection to proceeding on the pleadings, as filed in this case without the Plaintiff present. . . . ” [Emphasis supplied.]

It is clear to this court as revealed by the record, that the appellants proceeded under a theory of warranty of habitability at the trial level and sought damages as relief. Appellants contend on appeal that the trial court should have granted recission as the relief in this instance.

It is the law in Alabama that a case will not be reviewed in the appellate court on a theory different from that on which it was tried below. See Vulcraft, Inc. v. Wilbanks, 54 Ala.App. 393, 309 So.2d 105 (1975). As noted above, the present case was tried below on the theory of a breach of warranty of habitability. This in itself precludes any review on a theory of recission due to the fact that it is a different theory from that proceeded on below.

Appellants’ second contention alleges error in the trial court’s award of damages. As noted above, the court awarded $1,000 as damages due to the defective nature of the mobile home. Appellants argue that such damages are inadequate.

An award of damages will not be disturbed on appeal unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. See King v. Sturgis, 45 Ala.App. 553, 233 So.2d 495 (1970). Furthermore, the fact that the trial judge made a personal inspection of the premises is an additional reason for reviewing the decree as if it were a verdict of a jury and will not be reversed unless plainly erroneous. See Daugherty v. Gulf Shores Motel, Inc., 292 Ala. 252, 292 So.2d 454 (1974).

In the present case, we cannot say that the award of damages is wrong and unjust so as to be considered plainly erroneous. In fact, our review of the record reveals little if any testimony regarding the actual amount of damages.

In view of the fact that the trial judge personally inspected the premises, this court will assume that the judge made those findings which will support the decree. See Daugherty v. Gulf Shores Motel, Inc., supra. The record reveals, and we so hold, that there is credible evidence to fairly support the trial court’s decree.

The above being dispositive of the issues in this case, the trial court is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.

      . This proceeding was for the purpose of hearing the appellants’ third party complaint.


text:
    Carolyn Sue ETHRIDGE v. Emmitt ETHRIDGE.
    Civ. 1341.
    Court of Civil Appeals of Alabama.
    June 14, 1978.
    Rehearing Denied July 19, 1978.

      William A. Short, Jr., Bessemer, for appellant.
    Norman K. Brown, Bessemer, for appel-lee.
   WRIGHT, Presiding Judge.

The mother appeals from the modification of custodial provisions of a divorce decree.

The original decree, rendered by Jefferson County Circuit Court, Bessemer Division in 1972, granted custody of the three minor children to the mother. The father was ordered to pay $160 per month child support and pay medical bills and maintain hospital insurance for the children. The decree forbade either party from removing the children from the state without the consent of the other.

Shortly after the divorce the parties resumed living together. They separated again in January 1974. Subsequently there were difficulties between the parties. The wife filed petition for citation for contempt for failure to pay support. She charged harassment, including assault with a gun. She was harassed at her employment and lost her job. The father was convicted of assault and battery. He was found to be in arrears over $600 in support, but was given custody of the children for the summer of 1974. The mother stated she had to leave the state to obtain employment because the father would not leave her alone. She went to Ohio. In September 1974 she returned to Alabama. She got her children and returned to Ohio without permission of the court. The father did not learn of her whereabouts until June of 1977.

The mother became pregnant and married in 1976 in Akron, Ohio. Her new husband is a black dentist. He provided the mother and the children with a large home in Akron and supported them together with the new child. The children like him and they have a good relationship.

In June 1977 the father learned where the children were located. He secured an ex parte order for custody from the Jefferson County Court and went to Ohio. He sought the assistance of the Ohio authorities. When he went to the home with Ohio officers, the mother shot at him as he sat in the car. She was charged for this offense, but the charges were later dropped. The Ohio court gave custody of the children to the father for the summer of 1977, with direction to return them to Ohio in August. There was to be a determination of custody thereafter subsequent to investigation of each party. Instead of returning the children to Ohio as ordered, the father filed petition for custody in Jefferson County. The resulting grant of custody to the father brought this appeal from the mother.

The first issue presented is whether the father may be granted the relief of modification when he has been found to be in arrears in support for the children. We are cited to our case of Cox v. Cox, 48 Ala.App. 574, 266 So.2d 784 (1972). That case does not deny the court power to enter an order affecting the welfare of the children merely because the father is behind in support payments. Such a rule would conflict with the principle that the welfare of the children is the polestar in every custody case. Dorminy v. Dorminy, 51 Ala.App. 70, 282 So.2d 686 (1973).

The next issue is whether the evidence discloses a material change of circumstances affecting the welfare of the children which supports a change of custody. There is presented the companion issue of whether the interracial marriage of the mother was the reason for the change in custody. It is necessary to the consideration of these issues that we examine the testimony closely. We have already related some matters and events occurring between the decree granting custody to the mother and the filing of the petition of the father for custody. We will relate other evidence.

After going to Ohio, the mother found employment and also secured training and experience as a dental assistant. It was while employed in that capacity she met her present husband. She brought her children to Ohio, enrolled them in school and supported them for over two and one-half years without aid from their father. Her present husband purchased a large home and located her and her children there prior to the marriage. There is now a son of that marriage. The 'husband and stepfather earned over $56,000 in 1977 and testified he is desirous of supporting the wife and her children. Neighbors from Ohio appeared and testified as to the home and treatment of the children. There was evidence that the interracial marriage had encountered no societal problems in Ohio.

The sister of the mother had visited in the house and stated the mother and children were in better circumstances than they had ever known.

The father is self-employed as a landscape contractor. He has remarried. His present wife has two children whom he supports. His income is apparently sufficient to support his children and step-children. They reside in a three-bedroom trailer located in a rural area. There was no evidence but that the children received good treatment in his home.

During the summer prior to the hearing and decree, the children were permitted to talk with their mother by phone with the father listening in and on occasion taping the conversation. Because he felt the mother’s calls were becoming too numerous and were upsetting the children, he ceased permitting them. The conversations were taped by the father to show how the mother attempted to influence the children to tell an investigator they wanted to be with her. The tapes did show such attempt to influence. They also showed plainly the strong bond of mutual love between the mother and the children and their good rapport. They also showed an affectionate relationship with the mother’s present husband. The tapes also revealed the desire of the children to be with their mother even though they knew the father was listening to the conversation. This desire was subsequently expressed to the court in camera. The trial court went to considerable length m an amendment to its original finding of fact to state its conclusion that the children’s statements that they wished to go to Ohio were due to the inducements and importuning of the mother and not their true feelings. The court noted that the children gave no indication of abuse or unfitness of the father but only expressed a desire to go to Ohio. The court then said that the interview with the children inclined it to the conclusion that their best interest would be served in the custody of the father.

We have said that the mother charges that the primary circumstance causing the court to remove the children from her custody and give them to the father was her interracial marriage. We have examined the record closely and there is no overt evidence that the charge is true. The husband appeared and testified. He was treated courteously by the court and with remarkable restraint by counsel. The only prejudice because of race was displayed by statements of the father. However, candor requires the question of whether the trial court would have been so persuaded if the mother were married to a Caucasian dentist with an income of $56,000 per year. An answer to the question can come only from surmise and speculation. For this court to speculate affirmatively would be contrary to our duty of review and dishonor the trial judge without sufficient proof.

It is our duty to review every judgment of a trial court rendered after oral hearing with the presumption of correctness. We are free to reverse such judgment only when it is unsupported by legal evidence or it is clearly wrong and unjust. Sheffield v. Sheffield, 350 So.2d 1056 (Ala.Civ.App.1977). This court is not at liberty to set aside the judgment of the trial court merely because we might have decided differently had we been sitting as the trial judge. Northcutt v. Northcutt, 45 Ala.App. 646, 235 So.2d 896 (1970). We cannot say in this case that the judgment of the court changing the primary custody of these children from the mother to the father is so without support by the evidence as to require reversal. However, we do find the complete removal from the mother of any custodial right other than visitation to be wrong and unjust. We therefore approve and affirm the granting of primary custody to the father, but reverse the judgment insofar as it grants mere right of visitation to the mother. We direct that the mother be granted custody from the end of the school term in the spring to a date two weeks in advance of the beginning of the school term in the fall. The cost of transportation in the spring is to be paid by the mother. The cost of return transportation in the fall is to be paid by the father. All other provisions of the judgment are to remain in effect.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    John Wallace THOMPSON v. Cleo Lamb THOMPSON.
    Civ. 1322.
    Court of Civil Appeals of Alabama.
    July 12, 1978.

      John Wallace Thompson, pro se.
    J. Douglas McElvy, Tuscaloosa, for appel-lee.
   HOLMES, Judge.

This is a child custody case.

The Circuit Court of Tuscaloosa County, after an ore terms hearing, entered a decree modifying custody and child support provisions of a previous decree. The father appeals.

Viewing the record with the attendant presumptions, we find the following: The parties were divorced in August, .1970. Custody of the parties’ three minor children was awarded to the mother. The father was required to pay $500 per month for the support and maintenance of the children.

In April, 1972, the father filed a petition to modify, requesting a change in the custody of the children. The mother was in agreement with the petition and the court modified the divorce decree. The children then came to live with the father until December, 1972. At that time, the children refused to remain with the father and voluntarily left the custody of the father.

During December, 1972, the court awarded the temporary custody of the minor children to the wife’s sister. The court further enjoined the parties from disturbing, molesting or seeing each other or the children.

In February, 1973, the custody of the parties’ minor children was granted to the mother. The court further found the father to be in arrears for the payment of child support and entered a judgment against him for $14,000.

The parties executed an agreement in March, 1975, whereby the father would be allowed to assume the actual care and custody of the children. The agreement further provided that he was released from any claim, whether judgment or otherwise, in regard to back child support payments. Pursuant to this agreement, the children began to reside with the father.

In March, 1977, the youngest of the parties’ two minor female children, Elizabeth, voluntarily abandoned the custody of the father and came to the mother, requesting to remain in her custody. Upon petition by the mother, she was granted temporary custody of that child.

After numerous further proceedings, the court held that the February, 1973, decree was in force and effect as against the parties to this action. The court further found that the agreement entered into by the parties in March, 1975, had no effect or standing in the court and that the custody of the minor children remained with the mother according to the February, 1973, decree.

Thereafter, the father petitioned to modify the February, 1973, decree in an effort to obtain custody of both minor children and to be relieved from support obligations. The case proceeded to trial where, after an ore tenus hearing, the court entered the following decree, in pertinent part, in July, 1977:

“(1) That the care, custody and control of the minor child, Elizabeth Ann Thompson, should remain with her mother, Cleo Lamb Thompson, who is a fit and proper person for such care, custody and control.
“(2) That the care, custody and control of the minor child, Sandra Lynn Thompson, should be placed with her father, John Wallace Thompson, and that he is a fit and proper person for such care, custody and control.
“(3) That both Cleo Lamb Thompson and John Wallace Thompson shall have reasonable visitation upon reasonable notification to the other party, however, that the said minor children shall not be coerced or forced into visiting and if they do not desire to visit the other party then they shall not be made to. The Court finds that both of the minor children are capable of making mature decisions and that their decision as to visitation shall be respected by-both of the parents.
“(4) That the respondent, John Wallace Thompson, is presently employed and that he derives sufficient income from such employment, and he is hereby or.dered to pay One Hundred Fifty ($150.00) Dollars per month through the Registry of the Circuit Court of Tuscaloosa, Alabama, for the support and maintenance of Elizabeth Ann Thompson. Said payments to commence on August 15, 1977, and payment to be made on the 15th day of each month thereafter.
“(5) That the total amount of arrear-age owed by John Wallace Thompson for the support and maintenance of the said minor children while they were under the care and custody of Cleo Lamb Thompson, amounts to Nineteen Thousand Three Hundred ($19,300.00) Dollars and that the respondent, John Wallace Thompson, is hereby ordered to make a payment of at least Five Hundred ($500.00) Dollars by Friday the 22nd day of July, 1977. If said payment is not made or if said judgment is not satisfied then execution may issue for the enforcement of same.”

The father appeals, alleging error in the trial court’s award of custody and its finding of him to be in arrears in child support payments. Specifically, the father contends the trial court erred in awarding Elizabeth to the mother in that such would not be in the best interest of the child. The father further contends the trial court erred in not admitting certain evidence in an effort by the father to show payment of child support.

At the outset, we would note that it is well established that in cases where the trial court hears all the evidence ore tenus, the judgment is presumed correct unless the record before this court demonstrates that the trial court’s judgment is plainly and palpably incorrect. See Stewart v. Stewart, Ala.Civ.App., 354 So.2d 816 (1977).

Suffice it to say that a great deal of the testimony was in direct conflict. Most all of the evidence involved the period from February, 1973, the date of the modification decree granting custody to the mother, to March, 1975, the date of the agreement giving custody of the children to the father. There was testimony to the effect that during this period there was some drug activity and promiscuity taking place in the mother’s home. The knowledge of the mother as to these activities was in dispute.

Our careful review of the record, however, fails to disclose the present home environment of the mother. We would further note that the youngest child testified at trial that she preferred to live with her mother.

Given the facts before us, we cannot say that the trial court’s decree in changing custody of the minor children was plainly and palpably incorrect. This is particularly made manifest when viewed with the fact that the youngest child preferred to live with her mother. While such a preference is not a controlling factor, it should be given consideration in determining custody. See Stairs v. Stairs, 283 Ala. 263, 215 So.2d 591 (1968); Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

It is clear to this court that the July, 1977, decree modified the February, 1973, decree which had awarded custody of both children to the mother. The father contends the agreement executed between the parties in 1975 is controlling, both as to the custody and support payments and presumed to be in the best interest of the children. We cannot agree.

The Alabama Supreme Court in Morgan v. Morgan, 275 Ala. 461, 464, 156 So.2d 147, 150 (1963), when faced with a similar agreement, stated that:

“This argument overlooks well settled legal principles to the effect that appellant’s duty to support his minor children, and the amounts of such support, were imposed by a final decree of a court having full jurisdiction in the premises. The parents are without any warrant in law to later nullify such decree by mutual agreement between themselves so as to deprive the minor children of the support to which they are entitled under the decree of a court of competent jurisdiction. Such agreements are without eonsideration, and void as a matter of public policy. .” (Citations omitted.)

Furthermore, since it is the February, 1973, decree which is attempted to be modified, the burden is upon the father, i. e., the movant, to convince the trial court that the circumstances have changed to such a degree that a modification of the award of custody is required. See Stewart v. Stewart, supra.

In view of the above, we cannot say in this instance that the trial court erred to reversal in awarding one child to the father and one to the mother.

The father further alleges that the trial court erred in its finding of arrearage in child support payments. The father contends that payments were made directly to the mother and that the court refused to take into consideration their payments in determining the back child support payments due.

The court indicated that it was inclined to disallow • credit for payments not paid through the register’s office. However, the record reveals that the court did allow evidence of payments and such payments were allowed as credit to the arrearage.

The father further alleges error in the trial court’s refusal to consider payment receipts made prior to February, 1973, in computing the arrearage from February, 1973, to July, 1977. In February, 1973, the father was adjudged to be $14,000 in arrears in child support payments. Although the father testified that these receipts were not offered in evidence in 1973, it was proper for the court to refuse to admit them in July, 1977, because that period of child support had already been determined.

The above being dispositive of the issues in this case, the trial court is due to be and is affirmed.

The appellee-wife has requested that this court award an attorney’s fee for representation on appeal. We have carefully considered this request. However, in view of all the facts, as indicated above, we decline to make such an award.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


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    Shirley Sparks ARMSTRONG v. Wallace Ray SPARKS.
    Civ. 1386.
    Court of Civil Appeals of Alabama.
    July 12, 1978.
    A. Eric Johnston, Birmingham, for appellant.
   BRADLEY, Judge.

This appeal is the result of an order by the Circuit Court of Jefferson County, Birmingham Division, rejecting appellant’s (Shirley Sparks Armstrong) request for child support. We reverse and remand.

Shirley Sparks Armstrong and Wallace Ray Sparks (appellee) were divorced in 1971. Pursuant to this divorce, Mr. Sparks received custody of the couple’s minor son. Subsequently, the divorce decree was modified by agreement of the parties and Mrs. Armstrong obtained custody of the child. No agreement was made between the parties which obligated Mr. Sparks to furnish child support for the boy. Nor did the trial court include in its order modifying its original decree any provision for child support.

In late summer of 1977 Mrs. Armstrong filed a petition seeking child support. Her petition was denominated a “petition to modify” and alleged that a substantial change in circumstances had occurred which warranted the payment of child support by her former husband.

After a hearing ore tenas the trial court concluded that Shirley Sparks (Armstrong) had failed to show the material change in circumstances necessary to substantiate a modification of the original divorce decree (and subsequent modification thereof). Accordingly, the court dismissed Mrs. Armstrong’s petition for modification. Mrs. Armstrong now seeks to have the lower court’s order dismissing her petition reversed. Mr. Sparks has filed no brief in response to the arguments presented by his ex-wife on appeal.

At the outset we are compelled to note that there has never been a provision included in any of the prior modifications of the original divorce decree nor the original decree itself which required the husband to furnish support for his minor child. And although the parties apparently agreed between themselves that the husband was not obligated to provide support, this agreement was never adopted by any of the decrees regarding the domestic difficulties of the parties. Consequently, we do not feel that this action involves a petition to modify a prior award (or an absence of such award) of support. There has been no decree dealing with child support nor has there ever been a court sanctioned agreement which pertained to child support. Thus, there was nothing for the court to modify. The wife’s action should have been treated as a supplementary petition to the agreement and court order by which she obtained custody of the child and as such the trial court had an obligation to order the husband to maintain and educate his child in a manner commensurate with his means. Scott v. Scott, 247 Ala. 598, 25 So.2d 673 (1946).

It is well-settled in this jurisdiction that when a divorce decree embraces the subject of a child’s maintenance and custody a court, without reservation of power, may upon any subsequent change of circumstances modify its original decree to reflect the changed conditions. Tucker v. Tucker, 280 Ala. 608, 196 So.2d 724 (1967).

However, the doctrine of changed circumstances is relevant in child support cases only where the complaining party seeks a modification of an earlier award of support or requests that a decree incorporating a prior agreement dispensing with the obligation to provide support (or establishing the amount of support payable) be altered.

In instances where the divorce petition requests child support or where the decree of divorce (and subsequent modifications thereof) make no reference to an agreement between the parties concerning support and a supplemental petition is thereafter filed seeking support, a different standard applies. In this type of situation the rule is that the primary responsibility of support for the minor child rests with the father provided he is financially capable of providing such support. See Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660 (1975).

71 A.L.R.2d 1370 § 14 states:

“Where a divorce decree provides for the custody or support of a minor child of the parties, it is generally held that the original order is res judicata on the existing state of facts, so that there must be a substantial change of circumstances before the court will amend the order for custody or support. .
“If, however, the original decree makes no provision for the custody or support of a child of the marriage and the court did not adjudicate rights concerning the child, the doctrine of res judicata does not apply, and there is no need to show that the circumstances have changed since the divorce was granted in order to justify an amendment which provides for the custody or support of a child. West v. West (1928) 241 Mich. 679, 217 N.W. 924; Crooks v. Crooks (1946, Mo.App.) 197 S.W.2d 678; Roberts v. Roberts (1956, Mo.App.) 292 S.W.2d 596. See also Townsend v. Townsend (1938, Tex.Civ.App.) 115 S.W.2d 769, supra, § 12.”

In Scott v. Scott, supra, a divorced wife filed an action against her former husband seeking a decree which would require the husband to provide support for the couple’s children both of whom were in the wife’s custody. The pleadings showed that the husband was financially capable of supporting the children although he was not furnishing money for their care because the divorce decree contained no provision regarding child support. After indicating that the wife had attempted to support the children but had been unable to do so, our supreme court said:

“It is immaterial that in the decree of divorce no provision was made for the maintenance and education of the minor children of the parties. The equity court has full jurisdiction respecting the duty of the father to support his minor children (Bridges v. Bridges, 227 Ala. 144, 148 So. 816) and it devolved upon him to maintain and educate them in a manner commensurate with his means (Farmer v. Coleman, 231 Ala. 527, 165 So. 778; Chandler v. Whatley, 238 Ala. 206, 189 So. 751).”

Nor did the court consider the doctrine of changed circumstances to be applicable, stating:

“It is no objection to the bill, then, that it is an independent suit in the same court where the divorce was granted. Whether so or not is immaterial, since the bill invokes the jurisdiction of the court for the purpose stated. The principle was thus reasserted in the Bridges case, 227 Ala. at page 146, 148 So. at page 816: ‘In the decree of divorce, that court could have provided for the custody of the child and its support and maintenance, but, whether so or not, a proceeding thereafter concerning such matters may be begun in the same court by supplemental proceedings, though they are treated in many respects as original (19 Corpus Juris 353, 354, 355), with the right to review by appeal as any other original proceeding. Smith v. Smith, 218 Ala. 701, 120 So. 167.’ ”

Accordingly, the court concluded that the wife’s petition was a supplemental petition for the purpose of requiring the father to support his minor children, filed because the original divorce decree did not include a provision for child support. Thus, it was held that the trial court had jurisdiction to order the husband to provide support payments.

In the present case the original decree of divorce and the subsequent modifications thereof contained no references to the purported agreement between the parties dispensing with the husband’s duty to furnish money for the support of his minor child. Consequently, the wife’s petition to modify constituted a supplemental petition to the original divorce decree as modified to award her custody of the parties’ son. And under that petition the husband was obligated to provide support for his child just as if the wife had sought such support at the time the court transferred custody of the child to her. Moreover, the wife’s petition being merely supplementary to the decree by which she received custody of the child, it was not necessary for her to demonstrate a change in circumstances in order for her former husband to be required to furnish child support. It was sufficient for the court to order the husband to provide for the maintenance of his child if the evidence tended to show he was financially able to do so. In the present case the evidence demonstrated that in 1976 the husband’s net income was $9,800. We believe that a yearly income of this amount indicates that the husband is financially able to provide some support for his minor child. Therefore, we reverse and remand the judgment of the trial court in order that it may determine the specific amount to be awarded as child support.

Appellant’s request for attorney’s fee on áppeal is hereby granted and an award of $350 is made.

ATTORNEY’S FEE AWARDED.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., and HOLMES, J., concur.


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    Doris H. COLLINS v. Bobby W. COLLINS.
    Civ. 1398.
    Court of Civil Appeals of Alabama.
    July 12, 1978.
    R. B. Jones and Roger M. Monroe of Jones & Monroe, Birmingham, for appellant.
    Walker Norris, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Jefferson County divorced the parties; made a division of property; and awarded the wife alimony in gross. The wife appeals, contending the trial court abused its discretion in the division of property. We agree and reverse.

Viewing the record before this court with the attendant presumptions accorded the trial court, the following pertinent facts are revealed.

The parties to this action were married in February, 1975. Both parties had been married previously and had children from these prior marriages. No children were born of the parties during their marriage.

The parties ultimately separated in July, 1977. Suffice it to say, their marital troubles began very early in the marriage. The record is replete with instances of bickering, heavy drinking, and allegations of violence on the part of both parties. The record further reveals that this was the third divorce action filed by the wife during this marriage.

The trial court, in its divorce decree, awarded the wife $5,000 as alimony in gross along with the award of an attorney’s fee. The decree further awarded the home of the parties to the husband and divested the wife of any and all interest in the home. The wife appeals and argues that the trial court abused its discretion in awarding the home to the husband.

Both parties owned their respective homes prior to their marriage. Immediately after the marriage, the parties resided in the appellant-wife’s home. After a couple of months, they moved into the appellee-husband’s home. Approximately one month later, in May, 1975, the husband’s home was badly damaged by fire which ■resulted in the parties having to moye back to the wife’s home. The parties resided there from May, 1975 to December, 1975.

In December, 1975, at the urging of the husband, the wife sold her home and received approximately $11,000 equity money from the sale. Based upon the above, the husband executed a warranty deed conveying joint interest with right of survivorship to the wife in his home.

Thereafter, the wife deposited the funds obtained from the sale of her home into a joint account of the parties. The record reveals that at least $2,000 of this money was used in repairing the fire damage to the husband’s home.

As noted above, the trial court awarded the jointly owned home to the husband. This home has a floor plan of approximately 2750 square feet and sits on a six acre tract of land. The wife presented three witnesses who testified as to the value of the parties’ home. Their values ranged from $98,000 to $115,000. The husband himself had listed the property for sale in June, 1977, and placed a value of $115,000 on the property. During the course of the divorce proceeding, the husband, however, testified that the house was worth $30,000.

This court has recognized many times that an equal division of property is not required as a measure of the limits of the discretion of the trial court. However, such division should be the result of weighing the rights and equities of the parties as disclosed by the evidence in each case. See Pettis v. Pettis, Ala.Civ.App., 334 So.2d 913 (1976).

Contrary to the contentions of the husband, the overwhelming weight of the evidence indicates a value of the home in the $95,000 plus range. In view of the above, we have no alternative but to reverse.

While the trial judge is accorded liberal discretion and a presumption of correctness, our review of the record clearly reveals that the decree is unjust and plainly wrong as concerns the property division. In this instance, the trial court erred in taking from the wife her joint interest in real estate of a total value of approximately $95,000 plus, and awarding her only $5,000. The error is particularly made manifest in light of the facts as indicated above and particularly the uncontroverted evidence which reveals that some of the proceeds from the sale of the wife’s home were used to repair the husband’s home after the fire.

The above being dispositive of the issues in this case, the judgment of the trial court, as it pertains to the property division, is reversed and remanded for rehearing on that issue.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., and BRADLEY, J., concur.


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    Dianne L. HAYNES v. Dennis Bradford HAYNES.
    Civ. 1417.
    Court of Civil Appeals of Alabama.
    July 12, 1978.

      Rufus E. Elliott, III, Birmingham, for appellant.
    N. Daniel Rogers, Jr., and Samuel Maples, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

The wife appeals from the alimony and property division provisions of a divorce decree.

The parties were married in 1969. They have three sons, ages eight months, six years and eight years.

The husband is thirty years old and is employed by Southern Company Services as Supervisor of Internal Auditing, Nuclear Projects Department. His gross income in 1975 was $17,000 and in 1976 was $20,300. His monthly gross income in September 1977 was $1,921.

The wife has an elementary education degree from UAB but at the time of trial had been unable to find a full-time job. She had obtained a part-time job earning $300 per month.

The parties purchased a home about four years ago now valued at around $54,000. Monthly mortgage payments are $295 and about $33,000 is still owed. They owned household furnishings and two cars.

The parties were having marital difficulties four months prior to the July 1977 separation and had been seeing a marriage counselor. They had previously been separated twice. The husband admitted to one adulterous encounter since separation.

On July 29, 1977 the wife filed a complaint for divorce from bed and board seeking separate maintenance and custody. The husband counterclaimed for an absolute divorce alleging incompatibility. After oral hearing the court granted absolute divorce, awarding the wife custody of the children. Child support of $600 per month was awarded. It was ordered that the residence be sold and the proceeds divided equally between the parties. The wife was awarded the household furnishings, except for certain enumerated items. The decree provided: “The Defendant is required as a payment of alimony to pay all debts and obligations of the parties, specifically to include the amount due on the 1974 Volvo automobile” which was awarded to the wife. Also, “as alimony,” attorney fees of $1,000 were awarded.

The first issue presented by the wife on this appeal is whether the court erred in granting an absolute divorce in response to the husband’s countersuit instead of the divorce from bed and board which she requested.

Section 30-2-30, Code of Alabama (1975) provides that a divorce from bed and board may be granted for any cause which would justify a divorce if the party applying desires only such relief. Though the wife initiated the proceedings in this case and requested only a divorce from bed and board, the husband requested an absolute divorce. Either request required proof of grounds for divorce. Having before it both requests and proof of incompatibility, the court was empowered to grant the absolute divorce. McLendon v. McLendon, 277 Ala. 323, 169 So.2d 767 (1964); Hilfer v. Hilfer, 53 Ala.App. 549, 302 So.2d 237 (1974).

Plaintiff places in issue the correctness of attorney fees and payment of existing debts of the parties, including the amount due on the automobile given plaintiff, being characterized by the court as alimony. As a corollary issue, plaintiff says that the court erred in failing to order payment of periodic alimony.

We agree that the court has incorrectly stated that the awarding of $1,00'0 attorney fees to plaintiff is alimony. Alimony is provided for the sustenance of the wife. It stems from the marriage relationship and the common-law right of the wife to support by her husband. Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808 (1968). The payment of the debts of the marriage was already the legal obligation of the husband, including payment for the automobile given the wife. The latter action should be classified as a division of property. We find no precedent for calling an order for payment of the wife’s attorney fees alimony, though the allowance of attorney fees to the wife is based upon the same principle as alimony. The statute providing alimony does not provide for the award of attorney fees, but the courts have held that the statutory provision for allowance of maintenance to the wife carries with it the right to award attorney fees. Sims v. Sims, 253 Ala. 307, 45 So.2d 25 (1950). An attorney fee may be awarded though alimony is denied. Torme v. Torme, 251 Ala. 521, 38 So.2d 497 (1949). Section 30-2-53, Code of Alabama (1975). The payment of debts of the parties benefits the husband as well as the wife. To the extent of such benefit to the husband, at least, designating such payment as alimony to the wife must be incorrect. The designation of payment of debts owed by the parties and the payment of attorney fees as alimony does not make it so. Such could not be said to be an award of periodic alimony which reserves to the court jurisdiction for future modification. It is our opinion that the judgment of the trial court awards to the wife no alimony and reserves no jurisdiction for any future award or modification. Thompson v. Thompson, 54 Ala.App. 498, 310 So.2d 220 (1975). As a result, we find the trial court abused its discretion in failing to award to the wife periodic alimony in some amount or to reserve the right to make such award in the future.

The evidence is clear that the plaintiff has no income except for a part-time job with her church. Though she has a degree in education it has been often and widely published in this state that there is a large surplus of teachers. Job opportunities in that profession are scarce. The evidence is that she will realize possibly ten thousand dollars for the sale of the home. (So will the defendant.) That money represents a property settlement. The sale means that other housing must be found for her and the children. Defendant has stoutly argued that with all his obligations and the payment of $600 per month child support, he will be hard pressed. Perhaps so, but he can use his ten thousand dollars from the sale of the home to pay all the debts and he does not have to find a home for three small children and provide for their care while he works or looks for work as will the plaintiff. We find that the door to the court should remain open for assistance to the wife should the need for alimony exist in the future. To serve that end, we find the trial court erred in failing to reserve the right to award periodic alimony to the plaintiff. We remand the case and direct that the judgment be amended to provide for reservation of jurisdiction to make such award in the future.

The remaining issue is whether it was error to direct the sale of the home and equal division of the net proceeds between the parties. We do not find such to be error.

The division of property is a matter within the sound discretion of the trial court and will not be reversed on appeal except for palpable abuse. Stewart v. Stewart, 341 So.2d 490 (Ala.Civ.App.1977). In view of the large mortgage payments and the cost of maintenance of a large home, we believe the court correctly directed its sale as quickly as possible. We do not consider it was error to divide the net proceeds of the sale.

Attorney fees in the amount of $500 are awarded appellant on appeal.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.

      . There may be found statements and authority for the position that divorce from bed and board is highly undesirable and though authorized by statute, should not be granted where there appears no possibility of reconciliation. See dissenting opinion of Mr. Justice Simpson in McLendon v. McLendon, supra. Certainly, there appears no foundation for a divorce from bed and board when the ground proved is irretrievable breakdown of the marriage as stated in Section 30-2-1(9) of the Code of Alabama (1975). The legislature has provided that the term of such a decree may be ended and a divorce granted upon request of either party when such decree has been in effect for more than two years. Section 30-2-2, Code of Alabama (1975).