Even Nasty, Overweight, Free-Spending, Adulterous Gamblers Deserve Some Happiness

Too much! Too much! That’s the word from the Alabama Court of Civil Appeals about the award of property division and alimony in Carter v. Carter, Case No. 2031104 (Ala. Civ. App. December 30, 2005). The parties had married more than 25 years when they separated. The trial court heard evidence from which it “could have concluded that the husband’s adultery, gambling, excessive spending, and “mean” treatment of the wife contributed to the breakup of the marriage.”

The Madison County Circuit Court awarded the wife one half the husband’s state retirement plan (presumably to be paid as the husband receives it, given that the Alabama state retirement system won’t respond to a QDRO). In addition, the trial court awarded the wife alimony of $650 per month, reduced to $400 per month when the husband retired. The husband appealed, specifically complaining about the trial court’s awarding to the wife one half his retirement plan PLUS alimony.

The appeals court laid out the apparent disparity:

After the husband retires, the wife will receive one-half of the husband’s retirement income (approximately $ 1,150 per month) plus $ 400 per month in alimony. As a result (and barring a change of circumstances, which also could provide a basis for a modification of the alimony award), the husband will be forced to live on approximately $ 750 per month, before taxes, while the wife will be receiving an income (including her own earnings) in excess of $ 3,200 per month.

The husband has no significant financial assets, other than his retirement income, from which to pay any alimony obligation after he retires. In addition, the record reveals that the husband has health problems, including a heart condition that required surgery in 1991 and obesity sufficiently severe to require gastric-bypass surgery, and a limited postretirement earning capacity due to his illiteracy.

The appeals court picked the period when there would have been the greatest tilt toward the wife, i.e. when he has retired and she’s still working. After she retires, the balance would have shifted dramatically in the husband’s favor.

The appeals court brushed aside the husband’s objection about the trial court’s order that he pay the wife’s attorney fee:

Whether to award attorney fees in a divorce action rests within the sound discretion of the trial court, and such an award will not be reversed unless the trial court exceeded its discretion. Campbell v. Tolbert, 656 So. 2d 828, 830 (Ala. Civ. App. 1994) (factors to be considered include “the results of the litigation, the nature of the conduct of the parties, the financial circumstances of the parties, and the earning capacities of the parties”); and Robinson v. Robinson, 840 So. 2d 180, 184 (Ala. Civ. App. 2002). Based on a review of the record, we do not find that the trial court exceeded its discretion with respect to attorney fees.

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