
    Yong I. TREUSDELL v. Ronald L. TREUSDELL.
    AV93000777.
    Court of Civil Appeals of Alabama.
    July 28, 1995.
    Rehearing Denied Sept. 1, 1995.
    Certiorari Denied Dec. 1, 1995 Alabama Supreme Court 1950003.
    
      William P. Burgess, Jr., Huntsville, for Appellant.
    Dinah P. Rhodes of Blankenship & Rhodes, Huntsville, for Appellee.
   THIGPEN, Judge.

This is a divorce case.

After over 18 years of marriage, the husband filed for a divorce, alleging, inter alia, incompatibility. The wife filed an answer and a counterclaim, alleging, inter alia, that the husband had committed marital misconduct. Following ore tenus proceedings, the trial court divorced the parties, and, inter alia, awarded custody of the two minor children to the wife, ordered the husband to pay child support, reserved the issue of post-minority support, ordered the husband to pay the wife periodic alimony for three years or until further ordered, divided the marital properties, and ordered the parties to pay their own attorney fees and costs. The wife’s post-judgment motion was denied by operation of law, and she appeals.

The wife raises the following issues: (1) whether the trial court abused its discretion in the alimony award to the wife; (2) whether the trial court erred in failing to award the wife a portion of the husband’s retirement interests; (3) whether the trial court erred in failing to establish a post-minority support obligation for the husband; and (4) whether the trial court abused its discretion in not awarding the wife a reasonable fee for her attorney.

The ore tenus rule affords a presumption of correctness to the trial court’s judgment; that presumption is based, in part, on the trial court’s unique position to observe the parties and witnesses firsthand, and to adjudge their credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). The matters raised by the wife concerning periodic alimony and the property division are matters that he soundly within the discretion of the trial court, and its judgment on those matters will not be disturbed on appeal, except where its discretion was palpably abused. Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987). In making its determinations, the trial court considers numerous factors. Lones v. hones, 542 So.2d 1244 (Ala.Civ.App.1989). The property division is not required to be equal, but it must be equitable. Ross v. Ross, 447 So.2d 812 (Ala.Civ.App.1984). Additionally, even an award that favors, one party over the other is not, in itself, an abuse of discretion. Jordan v. Jordan, 547 So.2d 574 (Ala.Civ.App.1989). Likewise, the matter of child support is discretionary, and in ruling on that matter, the court must consider the needs of the child and the parent’s present ability to meet those needs, without speculation regarding the future. Morrison v. Kirkland, 567 So.2d 363 (Ala.Civ.App.1990). Similarly, the matter of attorney fees is within the trial court’s discretion. Sanders v. Gilliland, 628 So.2d 677 (Ala.Civ.App.1993). Furthermore, even if this court would have determined differently, absent an abuse of discretion, this court is without authority to substitute its judgment for that of the trial court. Beckwith v. Beckwith, 475 So.2d 575 (Ala.Civ.App.1985).

The extensive record in this ease includes transcripts and documents submitted by the parties. The trial court heard two days of testimony from numerous witnesses, including the parties, and had ample evidence to consider regarding the many factors appropriate for its consideration, including, inter alia, the financial conditions of the parties, their conduct, their health and stations in life, and their future prospects. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). The wife alleged marital misconduct in her counterclaim for divorce, and the record contains evidence and testimony concerning her allegation. Likewise, the trial court heard the husband’s undisputed testimony regarding his accumulation of retirement benefits, and it had ample information regarding such to make its determination regarding its disposition.

The husband was previously married, but while that divorce “was pending,” he met the wife when he was in the United States Army, stationed in Seoul, Korea. The wife, a Korean, married the husband in Korea in 1975, and subsequently, she moved with him when he returned to the United States. There were two children born during the marriage, and they are now older teenagers. The husband left the military service after approximately 10 years, and he has been a civil service employee since that time. He has an advanced degree and a consistent employment history. His annual salary at the time of the divorce exceeded $100,000. During the marriage, the husband saved approximately $26,000 in bonds for the purpose of financing their children’s college educations.

The wife has a high school education and limited employment experience. Her work experience of approximately nine years during the marriage included working in military commissaries, handling “customer assistance,” and handling accounts payable for a drug store. It is undisputed that during the marriage, the husband paid for the wife to attend numerous educational courses, including college courses, in order for the wife to obtain various employment skills, which could improve her business and vocational opportunities, and increase her proficiency in the English language. Although she obtained a community college degree in cosmetology in 1982, she has never worked in that field. Additional college coursework in the fields of computer and business were provided for her by the husband, and the husband testified that she utilized some of that education. It is undisputed that the wife was employed outside of the home for approximately one-half of the 18-year marriage.

At the time of the hearing, the wife was 44 years old, and, although unemployed, it is undisputed that she had sought employment since the parties had moved to Huntsville. The husband testified that the wife had not yet completed the requirements of obtaining the employment assistance provided for spouses by Redstone Arsenal. The wife testified that she was unable to work because she took medication for anemia, but that otherwise, she had no physical problems. The husband testified that the wife was in good health and had taken prescribed medication for anemia in the mid-1980’s. The testimony conflicted whether the wife was taking any medication for anemia at the time of the hearing. It was undisputed that she was working at a drug store during the previous time she was taking medication for anemia, and that she had not been hospitalized or bedridden for anemia.

The husband testified extensively regarding his salary, the family expenses, their holdings, and the various marital properties. He testified that he had set aside an account of $6,000 at Redstone Federal Credit Union for the purpose of the children’s educational expenses, but that the wife had withdrawn those funds. He also testified that he purchased savings bonds over a period of years that were to be used for the children’s educational expenses. Their maturation value was approximately $26,000, and these were in the wife’s possession. He testified extensively regarding numerous accounts held by the parties jointly and separately, including certificates of deposit worth approximately $22,-000 held individually by the wife, their separate individual retirement accounts, and the wife’s separate savings bonds of approximately $6,000.

It is undisputed that the husband had an extramarital affair with a co-worker in Virginia, but that the parties reconciled and moved to Alabama from Virginia together “to start over” when the husband received a job transfer. The wife argued that the husband’s affair continued after moving to Alabama, while the husband asserted that the affair had ended before the move. The wife argued that their telephone bills and a computer communication proved that the affair continued. The husband asserted that the long distance telephone calls were business-related, because he was assisting others in the transition of relocation, and testimony of other witnesses bolstered the husband’s assertion. The husband also testified that the date on the computer communication was incorrect.

The parties’ children testified regarding the trauma of relocating, some of the family problems, and to events involving the husband’s alleged paramour that occurred after the parties separated. The son testified that he wanted to stay in Virginia for his senior year in high school, and that he resented moving. He testified that he did not respect either of his parents, and that he had lost respect for his mother because “she was the one who made the family move.” Additionally, he thought that his mother had blackmailed his father by threatening to tell his office about his affair if he did not move the entire family with him. The wife testified regarding a conversation involving the husband that she recorded prior to moving to Alabama. When specifícálly asked if she tried to blackmail the husband regarding the move to Alabama, she responded “sort of.” The wife testified that the husband wanted to leave the family, but that she wanted the family to stay together. The wife’s testimony was very clear that she desired to move the entire family to Alabama with the husband, and that she was very excited about the large new house in Alabama that she had chosen.

The record is replete with ample, disputed testimony regarding the wife’s allegation of the husband’s “marital misconduct,” and the husband does not deny that he had had an affair before the parties reconciled and moved to Alabama together. The trial court divorced the parties on the ground of incompatibility, and ample record evidence indicates that the conduct of both parties contributed to the breakdown of the marriage.

There is also record evidence regarding the husband’s two daughters by his first marriage. The husband testified that, in part, his decision to allow his first wife’s husband to adopt his daughters was because when he married the current wife, she encouraged him to sever all ties from his past. There is record evidence that the wife was unhappy that those children and the husband had re-established contact after the children became adults, and that the wife disapproved of the husband becoming involved in their lives in recent years. The husband testified regarding a specific incident involving his daughter’s wedding invitation that, although sent personally to him, had been concealed by the wife. He further testified that, although his parents had maintained contact with his ex-wife and his daughters, they could not be discussed because “it was a matter of contention for my wife,” and further, that his wife had refused to allow him to tell their children about his prior marriage and his other children.

Record evidence, including the wife’s own testimony, reveals that the wife showed little interest or involvement in her own children’s schools and activities, and that, because she stayed in bed in the mornings, she was not involved in preparing the children’s breakfast or in seeing them off to school. The wife testified that since her deposition, the children had volunteered information to her about their schools and their activities because they did not want her to have a bad reputation. She testified that, at her deposition, approximately three months before trial, she did not know specific things about her children, such as their grades or their teachers’ names. She further testified that she had not attended PTA meetings, had never volunteered for work in her children’s schools, and had never participated in parent-teacher conferences. She further testified that, prior to her deposition, her children tried to ignore whatever she said, but that since they had read her deposition, they were communicating better with her.

The record contains evidence that the husband had been actively involved in the wife’s extended family. He voluntarily provided financial support for the college education of the wife’s niece, and the wife’s mother had lived with the family the last few years of her life. Conversely, the wife had never developed relationships with the husband’s family, to the extent of not even knowing his sister’s married name. The husband testified that the wife’s relationship with his parents was not “overly warm,” in part because of his parents’ relationship with his children from the previous marriage. He further testified that his parents lived in a rural setting, and that his wife did not often accompany him to visit them because she did not feel comfortable in that setting.

The record is replete with testimony from several witnesses that the wife showed little or no interest in assimilating into the American culture, and that she preferred to associate only with her Korean friends, to speak only the Korean language, and to eat her Korean meals separate from her husband and her children. There was testimony that the wife refused to travel with the husband on vacations, and that if she accompanied him to professional social events, rather than supporting the husband’s career in the traditional sense, she chose to segregate with several Korean spouses speaking the Korean language. There is ample record evidence regarding the family’s lifestyle and its activities, both as a family and as individuals. It is undisputed that the husband consistently encouraged and requested the wife to work in order for the family to enjoy a certain lifestyle. He supported her educational endeavors toward the goal of her employment. The record is clear that, regardless of the wife’s contribution to the family, the husband continued to be a good provider for the family, and that he assumed the greater portion of the nurturing duties as a parent.

One witness, Mrs. Yong Willis, also a Korean wife of a former U.S. serviceman, testified that her relationship with the Treusdells began in Korea many years earlier. She testified regarding her observations of the parties’ relationship over the years, the wife’s choice not to work in cosmetology, the wife’s refusal to participate in social events, regardless of encouragement from others, the husband’s loneliness years earlier, and the wife’s lack of control over the parties’ children. She testified that the wife had recently told her that she was again taking medication for anemia. Mrs. Willis further testified that, like the wife, she had begun her career by working in the base commissary in Korea, and that she had taken courses to improve her English. She testified that she had worked for the United States government for 15 years, and that she had attained the level of GS-11. She was a budget analyst who was hired to work for the husband because of her “spouse hire preference.” She testified that, as a close friend of the family, she had offered to help the wife with the children so that the wife could go on trips with the husband, but that the wife had refused her offer. She testified that, although the wife’s only complaint to her about the husband was that he was tight with money, the husband had purchased jewelry and other things for the wife, and Mrs. Willis was unaware of anything the wife wanted and did not have, stating that the wife “has more than anyone I know around us.”

The wife first contends that the trial court abused its discretion in its alimony award, both in amount and in its limited duration. Although the wife argues that the husband has superior employment skills and potential, the record clearly discloses her choices not to pursue educational or vocational opportunities, in spite of her husband’s constant encouragement and requests throughout the marriage. The record is also replete with evidence regarding other appropriate factors, such as the parties’ contributions to the marriage and home life, their health and stations in life, their ages, their future prospects, and their conduct regarding the cause of divorce. Lutz, 485 So.2d 1174. There is no indication that the trial court’s determination regarding alimony was intended to penalize the wife for failing to financially contribute to the marriage when her assistance was requested. It appears that the trial court may have been granting the wife a form of rehabilitative alimony to allow her time to adjust and to allow three years for her to pursue a career as her husband had requested her to do throughout their 18-year marriage. Perhaps, also, the time limitation for the alimony was an effort by the trial court to encourage and motivate the wife, who was only 44 years old, to assimilate in the country where she chose to reside and to rear her children. Even so, the alimony award is subject to certain conditions (such as her remarriage), and it is, therefore, subject to future modification, including extension and increase, upon changed circumstances. See Mullins v. Mullins, 475 So.2d 578 (Ala.Civ.App.1985). Furthermore, while the record lends itself to much speculation regarding the trial court’s alimony determination, it is not the province of an appellate court to reweigh evidence that supports a trial court’s judgment and to order a different award, absent any abuse of discretion. Clearly, in this case, the record evidence supports the trial court’s alimony determination, and this is particularly true considering the totality of the circumstances and the interrelationship of the property division with the alimony award. Montgomery, 519 So.2d 525. Appellate courts give deference to a trial court’s determination regarding alimony when record evidence supports that determination, and the trial court had the unique opportunity to see and hear the parties and witnesses firsthand. The wife has simply shown no error in the trial court’s award of periodic alimony.

The wife next contends that the trial court abused its discretion in not awarding her a portion of the husband’s retirement benefits. A trial court may consider retirement accounts and benefits in making its determinations regarding alimony and the property division; however, there is no requirement that those assets be divided. Ex parte Vaughn, 634 So.2d 533 (Ala.1993). See also Fowler v. Fowler, 636 So.2d 433 (Ala.Civ.App.1994), and Landers v. Landers, 631 So.2d 1043 (Ala.Civ.App.1993). The husband testified regarding specific retirement accounts and benefits he had accumulated before and during this marriage, as well as certain accounts in the wife’s name. He testified that his 28 years of government service included 10 years of military service. In its well-reasoned and detañed order, the trial court expressly awarded the husband “his IRAs and other retirement benefits,” and it awarded the wife “her separate savings accounts, IRAs and certificates of deposit.” The trial court made its determinations after considering the undisputed testimony regarding the husband’s 28-year career with the government, and the existing retirement accounts and other evidence, including financial statements, indicating the husband’s contribution to retirement accounts. The wife has failed to disclose error in the trial court’s judgment in this regard.

The wife next argues that the trial court' erred in failing to establish a post-minority support obligation for the husband. Again, there is no requirement that such an obligation be ordered. It is noteworthy, however, that the trial court “specifically reserve[d] jurisdiction for reconsideration of the proper factors” of post-minority support in the future, although the children would be past the age of minority if and when such reconsideration occurred. See Stein v. Stein, 623 So.2d 318, 320 (Ala.Civ.App.1993). The undisputed evidence in this ease is that the husband had already saved over $20,000 for the purpose of the children’s college education expenses, and the wife was ordered to hold those funds for the children. No evidence was presented regarding the appropriate factors. See Ex parte Bayliss, 550 So.2d 986 (Ala.1989), and Thrasher v. Wilburn, 574 So.2d 839 (Ala.Civ.App.1990). The wife has disclosed no error in this regard.

The wife last argues that the trial court abused its discretion in failing to award her an attorney fee. Absent an abuse of discretion, this court will not reverse a trial court’s determination regarding attorney fees in a divorce case. Morrison v. Morrison, 628 So.2d 839 (Ala.Civ.App.1993). The trial court had substantial evidence regarding the financial circumstances of these parties upon which it could make its determination regarding the payment of attorney fees for the divorce action. We find no abuse of its discretion in its judgment in this regard. Ample evidence in this extensive record supports the trial court’s determinations that are challenged in this appeal. Based on the foregoing, the judgment, therefore, is due to be, and it is hereby, affirmed.

AFFIRMED.

MONROE, J., concurs.

ROBERTSON, P.J., concurs specially.

YATES and CRAWLEY, JJ., concur in part and dissent in part.

ROBERTSON, Presiding Judge,

concurring specially.

I concur specially to point out what could be misinterpreted as a statement of the law contained in Judge Yates’s dissent. This court’s decision in Jackson v. Jackson, 656 So.2d 875 (Ala.Civ.App.1995), does not set any legal precedent, and our supreme court’s opinion in Ex parte Vaughn, 634 So.2d 533 (Ala.1993), is presently the controlling law regarding military retirement benefits. § 12-3-16, Ala.Code 1975. See my dissent in Jackson, supra.

YATES, Judge, concurring in part and dissenting in part.

I agree with the majority’s affirmance as to the award of attorney fees and the reservation of jurisdiction to determine post-minority education support for the children. Ex parte Bayliss, 550 So.2d 986 (Ala.1989). After weighing the factors in Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986), however, I must respectfully dissent from the court’s judgment on the remaining issues.

The trial court and the majority of this court seem to totally disregard many of the factors to be considered when dividing marital property and awarding alimony.' Most notable here is the length of the marriage, the health of the wife, the parties’ future prospects and stations in life, and the conduct of the husband regarding the cause of the divorce. Id., at 1176. “The purpose of periodic alimony is to support the former dependent spouse.” Thornburg v. Thornburg, 628 So.2d 885, 887 (Ala.Civ.App.1993). The trial court’s award of $750 per month alimony for three years fails to meet this purpose.

The parties were married 18 years, and the wife requires medication for an anemic condition. There was a great disparity between the parties’ educations and between their employment opportunities. The husband, during the marriage, obtained undergraduate and graduate degrees and earns well over $100,000 per year. The wife attended high school in Korea. She has taken several English courses, and she completed cosmetology school 12 years ago. According to the husband, her English remains “poor to medium.” She has never worked in cosmetology and has not maintained a license to do so. The wife has never earned more than $8.50 per hour. Her role during the marriage was to maintain the home, support the husband’s career, and rear the children.

In referring to the alimony awarded as “rehabilitative,” the majority clearly expects the wife, in three years, with two children at home, to improve her English, improve her marketability in the workplace, and find employment that will allow her to maintain a standard of living similar to the one she had before the divorce. The majority affirms the award, stating that the alimony is “subject to modification upon changed circumstances,” citing Mullins v. Mullins, 475 So.2d 578 (Ala.Civ.App.1985). In the Mullins ease, the husband, who was paying periodic alimony, petitioned for a modification based on a changed circumstance — that his wife’s income was as great as his, if not greater. The facts of that case are clearly inapplicable here.

To compare the wife to another Korean witness fails in any way to support the majority’s reasoning. Total assimilation into a spouse’s culture is not required. Additionally, whether to care for the home and children and support a spouse’s career instead of working outside the home is a joint decision to be made in all marriages. Alabama law does not require that either party in a marriage work outside the home in order to be able to obtain sufficient support and an equitable distribution of property in the event of divorce. The parties’ financial situation did not require that the wife work. She should not be penalized now for that fact. In any case, the majority’s reference to the husband’s “constant” encouragement for the wife to better educate herself and to work outside the home is simply not supported by the record evidence.

As to the conduct of the parties, the record is replete with testimony of the husband’s marital misconduct and the fact that his affair continued after the parties moved to Alabama. The majority refers to the parties as having reconciled and says that they moved to Alabama “to start over.” When the husband was transferred from Virginia to Alabama, he initially told the wife that he was “unhappy” and that he was considering moving alone to Alabama. He later changed his mind, however, and the entire family moved with him to Huntsville, Alabama, in March 1993. He moved out of the marital home in July 1993. He testified that the paramour had visited him at his apartment. Both children testified to confrontations with the husband while the paramour was visiting his apartment.

In a letter, which was introduced as an exhibit at trial, the husband asked the paramour not to lose faith in him, “because it would mean that the last nine months shouldn’t have happened.” He went on to state, “Only two more weekends to do this and then I will be there for you — forever!” The children both expressed their preference to live with the wife.

The trial court awarded the husband certain real estate and personal property, “as well as his IRAs and other retirement benefits as his separate property free and clear from any claim by the [wife].” (Emphasis added.) The husband’s domestic relations financial statement shows a monthly income deduction of $287.90 for retirement. The wife’s financial statement indicates that the husband receives retirement pay as a source of “other income”; however, the record contains no evidence of the existence of, or the value of, the husband’s civil service or military retirement benefits. The wife alleged in her post-judgment motion that the husband had “accumulated during the marriage numerous retirement benefits, worth in excess of one million dollars if his life continues for ten years after retirement.” It is unclear what “other retirement benefits” the trial court considered, if any at all, in determining the parties’ property division.

In Ex parte Vaughn, 634 So.2d 533, 536 (Ala.1993), our supreme court held that “disposable military retirement benefits ... accumulated during the course of the marriage constitute marital property and, therefore, are subject to equitable division.” This court’s recent decision in Jackson v. Jackson, 656 So.2d 875, 876 (Ala.Civ.App.1995), further stated that “military nondisability retirement pay, whether or not vested, constitutes a marital asset subject to division upon the dissolution of the marriage.”

The wife would have been entitled to a percentage, not exceeding 50 percent, of the marital share of military nondisability retirement pay, whether vested or not, if the parties had divorced in Virginia. Va.Code Ann., § 20-107.3(A) and (G) (1950). See Byrd v. Byrd, 644 So.2d 31, 32 (Ala.Civ.App.1994). Because the record does not indicate whether the trial court considered the husband’s military retirement benefits in making its property division, we should remand for the trial court to consider this issue and make a finding.

The trial court abused its discretion in the award of alimony and in the division of the marital assets. I would reverse on those points.

CRAWLEY, Judge,

concurring in part and dissenting in part.

I agree with Judge Yates’s dissent. I would not penalize the wife, as the majority seems to do, for her “ehoiee[ ] not to pursue educational or vocational opportunities.” Judge Yates states the following standard, which is the appropriate one, I think, in judging the wife’s contribution to the marriage:

“[Wjhether to care for the home and children and support a spouse’s career instead of working outside the home is a joint decision to be made in all marriages. Alabama law does not require that either party in a marriage work outside the home in order to be able to obtain sufficient support and an equitable distribution of property in the event of divorce. The parties’ financial situation did not require that the wife work. She should not be penalized now for that fact.”  