
    Terry HUTCHINSON v. Rita HUTCHINSON.
    2001214.
    Court of Civil Appeals of Alabama.
    March 22, 2002.
    Rehearing Denied May 24, 2002.
    Connie Cooper, Phenix City, for appellant.
    Mark S. Carter, Phenix City, for appel-lee.
   YATES, Presiding Judge.

Rita Hutchinson sued Terry Hutchinson on February 8, 2001, seeking a divorce and alleging incompatibility of temperament and adultery; the parties were married in July 1975. Their two children had reached the age of majority. The wife sought a division of the marital assets and alimony. On March 20, 2001, the husband counterclaimed for a divorce, alleging a complete and irrevocable incompatibility of temperament.

After conducting an ore tenus proceeding, the court, on June 18, 2001, entered a judgment of divorce. The judgment read, in part:

“3. That the [wife] is awarded the marital home ... and shall assume the indebtedness owed on the second mortgage on same.
“4. That the [husband] shall pay to the [wife] the sum of $700.00 per month as periodic alimony. In addition thereto, the [husband] shall pay to the [wife] the sum equivalent to the first mortgage payment on the marital home until such time as said first mortgage is paid in full at which time total periodic alimony to be paid to the plaintiff shall be $700.00 per month.
“5. That the [husband] is ordered to replace the roof on the marital home with a new roof and to repair the septic system.
“10. That the [wife] is awarded one third (1/3) of the [husband’s] retirement account.
“11. That the [husband] shall maintain a life insurance policy on his life in the amount of $150,000.00 with the ... children of the parties as the beneficiary and shall provide proof of same to the [wife].”

The husband appeals, contending that the trial court’s division of the marital assets was an abuse of discretion. We agree.

Under the “ore tenus rule” the trial court’s divorce judgment is presumed correct, and we will not disturb it on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). Furthermore, alimony and property-division matters rest within the trial court’s discretion, and such rulings on appeal will not be disturbed except for an abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994).

When determining an alimony award and dividing marital property, the trial court should consider the following factors: the earning abilities of the parties; the future prospects of the parties; their respective ages and health; the duration of the marriage; the parties’ station in life; the items of marital property and their sources, values, and types; and the conduct of the parties in relation to the marriage. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). The division of marital property does not have to be equal, only equitable, and what constitutes an equitable division rests within the sound discretion of the trial court. Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986).

The wife testified that she was 46 years old at the time of the trial and that the parties had been married approximately 26 years and had two adult sons. She stated that their marital assets consisted of a home and 13 acres appraised at $132,000, with two mortgages on the property totaling $87,000; her retirement account in which there was $2,500; her husband’s retirement account in which there was $32,111; a joint family life insurance policy in the amount of $150,000; and two vehicles. She further testified that her monthly expenses totaled $2,348.48. She also testified that the roof of the marital home and the septic tank 'needed repair and that the estimated cost of those repairs was $3,176 and $2,300, respectively.

The wife testified that she had been employed throughout the marriage. She stated her earnings for the year 2000 were $20,529, and her husband’s were $33,459. She stated that he did some “side work” involving heating and air conditioning, but she did not know how much he made from that work.

The husband admitted that he had had an affair and he stated that he no longer loved his wife. He further testified that at the time of the hearing he was employed as a maintenance man for an apartment complex. He testified that he had been fired from his former job in the heating and air conditioning business for illegally connecting a telephone line. He testified that his current monthly income is $1,064, and his net pay is $782.91. He stated he could make more money in the heating and air conditioning business, but he had chosen not to do that kind of work “because after thirty years of doing heating and air, I’m kind of tired of crawling under houses and attics because of my knees and back.” He further stated he was no longer able to lift heavy equipment. He also testified that he was currently living with his mother.

The payments ordered to be made by the husband in the divorce judgment total $1,342.72 per month, with additional monies required to replace the roof and to repair the septic tank. The husband’s current gross monthly income of $1,064, with a net of $782.91 is insufficient to meet the court-ordered obligation. The wife testified that the husband did heating and cooling work on the side, but when she was asked how much he made in a year doing this type of work her response was: “I have no clue.” There was no evidence introduced to dispute the husband’s testimony regarding his income. The trial court is not permitted to “disbelieve” the undisputed evidence. Wise v. Wise, 396 So.2d 111, 113 (Ala.Civ.App.1981). The husband did not testify as to his monthly expenses; however, the court-ordered payment is clearly unjust.

We reverse the judgment and remand this case for the trial court to reconsider the amount the husband is required to pay, in light of the evidence of the husband’s inability to pay.

The wife’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED.

CRAWLEY, J., concurs.

PITTMAN, J., concurs in the result.

THOMPSON and MURDOCK, JJ., dissent.

MURDOCK, Judge,

dissenting.

Our Supreme Court has repeatedly held that a trial-court determination arising from an ore tenus divorce proceeding is due deference:

“ ‘In reviewing the [circuit] court’s judgment in a divorce case presented ore tenus, we will presume the judgment to be correct....’’ Ex parte Jackson, 567 So.2d 867, 868 (Ala.1990). Furthermore, rulings on such matters as child support, alimony, division of marital property, and payment of marital debts are within the discretion of the circuit court. See id. Thus, a circuit court’s divorce judgment, including its rulings on these matters, will not be reversed unless it is so unsupported by the evidence that it is plainly and palpably wrong and a clear abuse of discretion. See Ex parte Smith, 673 So.2d 420, 421 (Ala.1995); Ex parte Jackson, 567 So.2d at 868; see also Hartselle v. Hartselle, 475 So.2d 860, 861 (Ala.Civ.App.1985) (‘The cases are legion which hold that matters in divorce cases, such as the division of property and child custody, are subjects that fall within the sound judicial discretion of the [circuit] court.’). Moreover, an appellate court reviewing a circuit court’s judgment in a divorce action is not to substitute its judgment of the facts for that of the circuit court. See Ex parte Smith, 673 So.2d at 422. Instead, the appellate court is ‘simply to determine if there was sufficient evidence before the circuit court to support its decision against a charge of arbitrariness and abuse of discretion.’ Id.”

Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000).

In reversing the judgment of the trial court, the main opinion concludes that the trial court’s award of alimony is inequitable because, it says, the husband’s testimony concerning his income was not disputed and because his gross monthly income is “insufficient to meet the court-ordered obligation.” I would first note, however, that a party’s current income is not the touchstone of an equitable alimony award: “[i]n making the initial award of alimony, the trial court may consider the parties’ ability to earn, as opposed to the parties’ actual income," and “[a]n award exceeding a [party’s] stated income does not automatically amount to an abuse of discretion by the trial court.” McAfee v. McAfee, 646 So.2d 122, 124 (Ala.Civ.App.1994) (emphasis added).

In this case, the husband’s most recent pay statement from his apartment-maintenance job was admitted into evidence. That statement reflects that the husband received $1,064 in gross pay and $782.91 in net pay. While the husband’s counsel, in one of his questions at trial, referred to this statement as reflecting the husband’s “monthly” earnings, the statement was admitted into evidence without any testimony from the husband that this characterization was correct. In actuality, the pay statement indicates that the husband worked a total of 76 hours during a period ending on May 18, 2001 to earn the pay reflected in that statement. A total of 76 working hours would, if accumulated over two calendar weeks, amount to just short of two standard 40-hour work weeks; thus, the trial court could reasonably have concluded that the husband’s actual monthly wages were approximately double that stated in the main opinion.

However, even if the husband’s 76 documented work hours did, in fact, represent his work for an entire month, the trial court could have drawn the inference that the husband was not fully employed and that he had a greater capability to earn than his wages would indicate. Moreover, there was evidence before the trial court indicating that the husband’s reported annual earnings from working in heating and air-conditioning during the five years preceding the trial had ranged from $31,000 to $36,100; that he had performed a “lot” of additional “side” work; that he had recently lost a job at a firm known as “One Arsenal” for misconduct, i.e., for attaching a telephone to a line running to a building so that he could save on his cellular-telephone bills; and that his current job involved a substantial cut in pay from his previous jobs. While the husband testified that he recently became “kind of tired of crawling under houses and attics because of [his] knees and back,” he also admitted to having sought continued employment in the heating and air-conditioning field with other companies after being terminated by One Arsenal.

In addition, some of this same evidence also could have served as a basis for the trial court to have drawn adverse inferences as to the husband’s credibility. In this regard it is important to note that the level of the husband’s earning capacity is not an “undisputed fact” in this case. The wife did not concede or stipulate that the husband’s monthly earning capacity was reflected by the above-discussed earnings statement; indeed, she took a position contrary to the husband’s position.

“Facts” and “testimony” are two different things. With respect to such testimony as the husband may have given in this case, “ ‘[t]he ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’ ” Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001) (emphasis added; quoting Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986)). On the other hand, “the ore tenus rule has no application where the facts are undisput-ably established.” Ex parte Anonymous, 803 So.2d at 546 (emphasis added; citing Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999)). Thus, under the ore tenus rule, a trial court makes weight and credibility determinations as to each witness’s testimony. Our caselaw did not prevent the trial court from making an adverse credibility determination as to the husband’s testimony, even if there had been no other witness’s testimony inconsistent with his. Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538, 543 (Ala.1988) (affirming a judgment based on the trial court’s reservation as to the credibility of a single witness’s testimony, as well as the inference of inconsistent assertions drawn from that witness’s testimony); Hall v. Mazzone, 486 So.2d at 410-11 (upholding a trial court’s judgment based on a negative credibility determination as to the only witness whose testimony addressed a given issue); In re Anonymous, 812 So.2d 1221, 1227 (Ala.Civ.App.2001) (Murdock, J., concurring in the result), aff'd, 812 So.2d 1234 (Ala.2001).

Finally, it is well settled that “even if a divorce is granted on the grounds of incompatibility, a trial court may consider fault in making its awards” of alimony and property. Kluever v. Kluever, 656 So.2d 887, 890 (Ala.Civ.App.1995). In this case, the husband admitted to having committed adultery, which embarrassed and humiliated the wife, who was undisputedly a good wife and mother. The trial court expressly referred to the husband’s conduct at the conclusion of trial and indicated that that conduct would have consequences in the proceeding:

“[Y]ou know, you reach the point in your lives, the children are grown, and you and your wife would have had time for each other. Your financial situation with your joint income is better with the kids up and out and you could have had a good time, but you blew it. That’s all I can say.
“... And the order will reflect that, but that’s all I can say until I have a chance to review the evidence.”

In light of the foregoing evidence of the husband’s ability to earn, as well as his adulterous conduct, I cannot conclude that the trial court’s award of periodic alimony is inequitable. The trial court’s judgment is not so unsupported by the evidence as to be plainly and palpably wrong and a clear abuse of discretion, especially in light of the Supreme Court’s admonition that the role of this court is “ ‘simply to determine if there was sufficient evidence before the circuit court to support its decision against a charge of arbitrariness and abuse of discretion.’ ” Elliott, 782 So.2d at 311 (quoting Ex parte Smith, 673 So.2d at 422). I therefore respectfully dissent from the reversal.

THOMPSON, J., concurs. 
      
      . The trial court ordered the husband to pay $700 per month plus monthly payments on the note secured by a first mortgage on the marital home; because those payments are not clearly denominated as "alimony in gross” and because they are identified as being in "addition" to periodic alimony, I conclude that those payments are in the nature of additional periodic alimony and not a property settlement. Bonham v. Bonham, 623 So.2d 337, 338 (Ala.Civ.App.1993) ("The intent to award alimony in gross must be unequivocally expressed or necessarily inferred from the language used.”).
     
      
      . In addition to the other factors discussed below that lead me to conclude that the husband has not shown on appeal why we should disturb the trial court’s finding that the husband has the ability to meet the alimony obligation it imposed, the husband is unable to point to any evidence in tire record regarding his living expenses.
     