
    Mary Jane Albright ERNEST v. Walter Crenshaw ERNEST III.
    Civ. 5798.
    Court of Civil Appeals of Alabama.
    Sept. 30, 1987.
    Rehearing Denied Nov. 4, 1987.
    Certiorari Denied Jan. 22, 1988 Alabama Supreme Court 87-179.
    Herndon Inge III, of Silver, Voit & Inge, Mobile, for appellant.
    Robert E. Gibney, Mobile, for appellee.
   PER CURIAM.

This is a divorce case.

The parties were married in 1973. At the time of their marriage, each party had a substantial separate estate.

After an ore tenus hearing, the trial court issued a decree which granted the divorce, divided the property, and awarded the wife periodic alimony and an attorney’s fee. The wife appeals.

The wife contends that the trial court erred to reversal in its awards to her.

We find no error requiring reversal and affirm.

It is well established that the division of property and the award of alimony and attorney fees to the wife are within the sound discretion of the trial court and will not be disturbed on appeal except where such discretion was plainly and palpably abused. Turquitt v. Turquitt, 506 So.2d 1014 (Ala.Civ.App.1987); Lucero v. Lucero, 485 So.2d 347 (Ala.Civ.App.1986).

Moreover, in a divorce case when the trial court personally hears the evidence, as in the instant appeal, the judgment appealed from is presumed to be correct on appeal. The judgment cannot be altered on appeal if it is supported by legal evidence unless the trial court’s decision was palpably wrong. Sayles v. Sayles, 495 So.2d 1131 (Ala.Civ.App.1986).

Viewing the record with the attendant presumptions, we find that the following is pertinently revealed.

This was the second marriage for both parties, and no children were born from this marriage. As noted above, each party had a substantial separate estate when they married. The husband owned twenty-five percent interest in his family business, where he was actively employed. The wife owned certain real property, was a lifetime income beneficiary of a trust, and was receiving mortgage income. She testified that she is currently receiving approximately $1,500 per month from certain of these properties, excluding child support paid by her previous husband.

The trial court heard all the evidence and made the following awards: The wife was awarded all of her income-producing property, as well as all the personal property that she brought into the marriage. Likewise, the husband was awarded any personal property that he brought into the marriage. Further, the wife was awarded one-half of all personal property acquired during the marriage, a 1982 Oldsmobile Delta 88, and a “bulldozer” valued at approximately $14,000. The wife is also to receive one-half of the net proceeds from the sale of the marital home, which is appraised at $300,000.

The husband was directed to be responsible for any outstanding indebtedness of the parties. Further, the wife is to be “held harmless” on a $750,000 business loan for the husband’s business.

The wife is also to receive $1,150 per month as alimony. This will decrease to $850 per month when the marital home sells.

We have carefully reviewed the record, and in view of the length of the marriage and the wife’s separate estate, as well as the other awards to the wife, we cannot say that the trial court so abused its discretion as to reverse.

We should not be understood as saying that, had we been the trial court, we would have entered the same awards. We only conclude that to reverse would be to substitute our judgment for that of the trial court. This the law does not permit. Brannon v. Brannon, 477 So.2d 445 (Ala. Civ. App.1985).

This case is due to be affirmed.

AFFIRMED.

HOLMES and INGRAM, JJ., concur.

BRADLEY, P.J., dissents.

BRADLEY, Presiding Judge,

dissenting:

I respectfully dissent. In the majority’s opinion, they find no abuse of discretion in the court's awards of property, alimony, and attorney’s fees. Consequently, they “find no error requiring reversal.”

After examining the record I must disagree as to that part of the court’s order dividing the marital property.

The evidence presented at the hearing indicates that the wife is forty-eight years of age and is not presently employed. Other than teaching dance for nine months in 1983, she has not been employed since 1967. Additionally, the wife suffers from high blood pressure and underwent quadruple by-pass heart surgery in 1986.

The wife testified that she currently receives approximately $1,500 per month in income. This amount excludes child support paid to her by her previous husband. The wife testified, however, that this separate income was never used for the common benefit of the marriage but, rather, to support her three children by a previous marriage.

According to the record, this separate income will decrease in the next few years as a mortgage and lien on two parcels of property, from which the wife receives income, will be paid.

The wife’s expenses approximate $1,760 per month. She further maintains that during the course of the parties’ marriage she was supported by her husband, who allowed her to become accustomed to a lifestyle which included membership at the country club, tennis and lunch with the girls, and trips.

Although the record evidences that the husband’s weekly salary is only $365, his land holdings and his fifty-one percent interest in a family-owned construction business result in the husband’s having a net worth of between $1,600,000 and $3,000,-000.

Our review of the record indicates that substantially all of the husband’s assets have been used at one time or the other and in one form or another for the common benefit of the parties and are, therefore, marital property not subject to the restrictions of section 30-2-51, Code 1975. Smith v. Smith, 423 So.2d 884 (Ala.Civ.App.1982).

After careful consideration of all the testimony and exhibits, I must conclude that the trial court’s property division reflects an abuse of discretion. Pursuant to the divorce decree, the wife receives one-half the personal property acquired during the marriage, one-half the net proceeds from the sale of the house, and a D-8 bulldozer valued at $14,000 (which will be of little or no value to the wife, who has never worked in the construction business).

In view of the wife’s health, her lack of employable skills, the standard of living to which she has become accustomed, the anticipated decrease in her independent income, as well as the husband’s income and station in life, I would find the court’s division of property so inequitable as to constitute an abuse of discretion. Golson v. Golson, 471 So.2d 426 (Ala.Civ.App. 1985).

A trial court, when making a property division, is to consider the parties’ ages, health, future employment prospects, station in life, marriage length, and, in proper cases, fault. Tate v. Tate, 477 So.2d 426 (Ala.Civ.App.1985). I opine that the evidence reflects an award that failed to adequately consider these factors. As such, the award is inequitable and should be reversed. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981).

Additionally, I would reverse and remand the case for a redetermination on the issue of the fees paid to the wife’s experts. The trial court directed that the wife be responsible for the indebtedness resulting from her retaining a real estate appraiser and an accountant.

The trial of this case lasted for three days. At trial, the husband apparently utilized the product of both the wife’s accountant and real estate appraiser, as both he and his accountant testified from documents prepared by the wife’s accountant.

We have said in a divorce action the fees paid to experts can be considered when determining the amount of attorney’s fees to be awarded. Fuller v. Fuller, 418 So.2d 121 (Ala.Civ.App.1981); Cooper v. Cooper, 57 Ala.App. 674, 331 So.2d 689 (Ala.Civ.App.1976). Further, this court has allowed such fees to be paid directly to the expert rendering the service in the trial of the divorce action. Andrews v. Andrews, 454 So.2d 1026 (Ala.Civ.App.1984); Howard v. Howard, 422 So.2d 296 (Ala.Civ.App.1982). If determined to be necessary and vital to the preparation of the case and reasonable in amount, the expense of these fees can be allowed, because the fees of an expert can be as necessary to the preparation of a case as are attorney’s fees. Howard, supra; Fuller, supra.

In light of the above, I would reverse that portion of the decree which directs the wife to be responsible for the indebtedness to the accountant and to the real estate appraiser and remand to the trial court to consider the reasonableness and necessity of the fees for these experts.  