Opinion
4 Div. 286.
February 20, 1969. Rehearing Denied May 1, 1969.
Appeal from the Circuit Court, Henry County, Keener Baxley, J.
Farmer Farmer, Dothan, for appellant.
A note of submission signed by each party, or if testimony is taken orally before the court, either an order of submission by the court, or some showing that the taking of testimony has ended, is necessary before cause is properly submitted for final decree. Equity Rules 56 and 57, Code, Title 7, Appendix. A reference is to aid the judge, and where the subject is one proper for a reference, it is generally within the power of the court in its discretion to order a reference, even without the consent of the parties. 30A C.J.S. Equity §§ 514, 522; Hale v. Cox, 240 Ala. 622, 200 So. 772. The amount of allowance for the support of minor children of divorced parents is generally within the sound discretion of the court considering all the circumstances of the particular case, and is limited to conditions and financial ability at the time of the order. The allowance must be reasonable, and this depends largely on the needs of the children and financial condition of the father. 27B C.J.S. Divorce § 319(5); Cowen v. Cowen, 259 Ala. 37, 65 So.2d 196. Courts of equity have wide latitude to make such orders as they deem should be made to meet the plain requirements of justice, and so long as the ultimate relief remains in the keeping of the court. Sawyer v. Edwards, 200 Ala. 26, 75 So. 338; Ex parte Elyton Land Co., 104 Ala. 88, 15 So. 939. In a divorce suit, allowance to wife varies from one-half of husband's estate to one-third or less, depending on various qualifying circumstances. King v. King, 28 Ala. 315; Smith v. Rogers, 215 Ala. 581, 112 So. 190; Isom v. Isom, 273 Ala. 599, 143 So.2d 455; Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637. Where there has been a palpable abuse of discretion or other arbitrary action on the part of the trial judge, such action is reviewable on appeal. Ex parte Jonas, 186 Ala. 567, 64 So. 960; Colquett v. Williams, 264 Ala. 214, 86 So.2d 381.
W. G. Hardwick and Jere C. Segrest, Dothan, for appellee.
It is not necessary to note any testimony given orally before the judge in open court. Equity Rule 57, Code, Title 7, App.; Thompson v. Odom, 279 Ala. 211, 184 So.2d 120. There is no arbitrary or unreasonable action of the lower court in taking of the submission for the cause after ample time for preparation of the cause for final submission. Pope v. Allinder, 219 Ala. 439, 122 So. 419. A presiding judge in equity is not bound to order a reference and may proceed without one since the purpose of a reference to a register is to aid the trial judge. Hale v. Cox, 240 Ala. 622, 200 So. 772; Stanley v. Beck, 242 Ala. 574, 7 So.2d 276; 8A Am.Digest, Equity, § 400. It is discretionary with the trial court upon granting a divorce to decree to the wife an allowance out of the estate of the husband. White v. White, 278 Ala. 682, 180 So.2d 277; Smith v. Smith, 45 Ala. 264. The court in determining the amount of permanent alimony must decide each case upon its own relevant facts in light of what is fair and reasonable in the circumstances as there is no fixed rule upon which to base the amount of alimony. King v. King, 269 Ala. 468, 114 So.2d 145. There is a presumption in favor of a divorce decree awarding child support and alimony by the trial court who saw and heard the witnesses and the divorce court's decree will not be disturbed unless plainly and palpably wrong. Phillips v. Phillips, 277 Ala. 2, 166 So.2d 726; Isom v. Isom, 273 Ala. 599, 143 So.2d 455.
The wife appeals from a decree granting her an absolute divorce from the husband, awarding her custody of minor children, requiring the husband to make monthly payments for support of the minors and further to provide for them a college education, and awarding to the wife as alimony in bulk or permanent alimony the sum of twenty-five thousand dollars and the home and two acres of land on which it stands.
The wife asserts that the court erred in the awards for support of the children and permanent alimony to the wife in that the awards are not large enough in view of all the circumstances of the parties.
In 1962, the wife was awarded a divorce from bed and board, custody of children, and support and maintenance.
In 1963, she filed bill for divorce from the bonds of matrimony on the ground of cruelty. Final decree was rendered and filed in the office of the register on August 5, 1966. The decree is dated August 4, 1966. The wife filed motion for rehearing, which was overruled, and this appeal followed.
Assignments 1 and 2.
Complainant assigns for error that the court "erred in stating in the final decree that the cause had been submitted for final decree on July 7, 1966," and "in stating in said decree that it had been submitted at all for final decree." Complainant argues:
"There was, of course, no order made at the time for a submission. Neither party stated at the time that that was all the testimony that either had to offer. Neither side stated or otherwise indicated that it had rested.
"It is, therefore, the contention of the Appellant that at that point in the proceedings there was no basis for the statement in the Court's decree that a submission had been ordered."
Complainant appears to say that because there is in the record no showing that she had notice of submission for final decree, the decree ought to be reversed. The decree appealed from contains the following statement:
"The plaintiff's attorney made a demand that the testimony in this case be taken orally before the Judge of this Court and filed said demand on April 19, 1966. On April 20, 1966, the Court, in conformity with said demand, issued an order that the said testimony should be taken on a day certain thereafter, which said date was continued by proper orders of the Court until the 7th day of July, 1966, at which time the testimony was so taken and the cause submitted for final decree thereon. . . ."
Complainant's argument has been answered by this court as follows:
". . . In West v. State, 233 Ala. 588, 173 So. 46, this court in construing old Equity Rule 74 held that when there is nothing in the record which shows that the submission was not at a regular call of the equity docket, the presumption will be indulged that such was the fact. In Ex parte Robinson, 244 Ala. 313, 13 So.2d 402, this court considered the situation when there was no rule as to notice of submission on demurrer, since old Equity Rule 74 had ceased to exist and when, therefore, there was no express requirement of notice between sessions of court and again this court held that where there is nothing in the record to show that the submission was not at a regular call the presumption will be indulged that such was the fact.
"In construing Equity Rule 60 which is now in effect and also Local Rule 54, the same principle obtains which is set forth in the foregoing authorities. In other words, since there is nothing in the record which shows that the submission was not at a regular call (Equity Rule 61), the presumption will be indulged that such was the fact. Since no notice is required of a submission at the regular call of the docket, the record before us and on which we must act shows no error. If as a matter of fact the respondent or his attorney did not receive notice, motion could have been made to set aside the decree on that ground. West v. State, supra." McCary v. McCary, 253 Ala. 468, 469, 470, 45 So.2d 292, 293.
See also: Burt v. State, 262 Ala. 22, 76 So.2d 676.
In Ex parte Robinson, supra, it is said that if a party is complaining of denial of motion to set aside decree on ground that movant had not had notice of submission:
". . . he can come to this court for mandamus on that account, but not otherwise." ( 244 Ala. at 317, 13 So.2d at 405)
We find no such motion in the record. For aught appearing therein, submission was at a regular call of the equity docket. No notice is required of a submission at such a call. McCary, supra. Assignments 1 and 2 are not sustained.
Assignments 3, 5, and 6.
Complainant assigns for error that the court erred in denying her motion for a reference as filed on July 22, 1966; in not holding a reference to ascertain the current value of respondent's property; and "in not setting forth a current . . . summary of the current . . . assets . . . together with any debts or other liabilities owing by the Appellee, as a basis for any final order or decree in said cause."
Complainant filed her motion for taking testimony orally before the court and the court granted the motion as provided by Equity Rule 56. We do not understand complainant to insist that she was in any-wise denied opportunity to present whatever evidence she desired at the oral hearing before the court.
As we have already stated, we presume on this record that the cause was submitted for decree on the merits on July 7, 1966.
On July 22, 1966, she filed her motion for a reference. This court has said:
"A reference is to aid the judge, and he may proceed with or without a reference, or after a reference adopt as much as he sees fit, or set it aside and act on his own judgment. (Citations Omitted)" Hale v. Cox, 240 Ala. 622, 625, 200 So. 772, 775.
"We have held that a presiding judge in a court of equity is not bound to order a reference, and he may proceed without one. Hale v. Cox, 240 Ala. 622, 200 So. 772. In that case a reference was made which greatly aided this Court in reviewing the final decree." Stanley v. Beck, 242 Ala. 574, 576, 7 So.2d 276, 277.
Under these authorities, we are of opinion that we cannot reverse the trial court for failing or refusing to order a reference in the instant case.
We are not cited to any authority which requires the court, in a suit for divorce, to set out in the record a finding showing assets and liabilities of a husband. We do not understand that complainant's argument is to that effect. It appears that she is here reiterating her insistence that the court should have ordered a reference to take further testimony as to what was the husband's net worth. We have already undertaken to show why we hold that insistence not to show error.
Assignment 4.
Assignment 4 recites:
"The Court committed error in awarding the sum of $50.00 per month merely and only for the support, maintenance and education of his minor son, Joel Roberts, so long as said son should remain a high school student."
Based on testimony of the husband's accountant, the husband's income, in round figures, for the last three years before the hearing in July, 1966, was as follows:
1963: gross income, $65,500.00; net farm income, $3,300.00; capital gain from timber sale, $11,000.00; and income for income tax purposes, $8,700.00.
1964: gross income, $63,000.00; net farm income, $13,800.00; capital gains, $4,700.00; and income for income tax purposes, $6,200.00.
1965: gross income, $33,300.00; net farm income, $1,900.00; capital gains, $800.00; rental income, $2,750.00; and income for income tax purposes, $5,050.00.
Under Assignment 7 we discuss the land owned by the husband and his net worth.
In the final decree, the court ordered the husband to pay $50.00 per month for support of his son, Joel, and also $50.00 per month for the other minor son, Lewie, Jr. In addition, the husband is ordered to pay all medical, hospital, and dental expenses for both minor sons, and to provide for each of them a four-year college education. The court expressly retains jurisdiction of matters of the support, maintenance, and education of the minor sons.
The court saw and heard the witnesses testify. The litigation between husband and wife began in May, 1962. The trial court had conducted prior hearings and heard testimony as to the financial circumstances of the parties and their children at least once in 1963.
It is established that, on review, the findings of the trial court without a jury, based on testimony heard ore tenus, will not be reversed unless plainly and palpably wrong. We are not persuaded on this record that the award of $50.00 per month for support of Joel Roberts is plainly and palpably wrong. If circumstances change so that the monthly award is insufficient, the wife may apply to the trial court for an increase.
Assignments 7 and 8.
Assignment 7 recites:
"The Court erred in awarding to the Appellant the home of the parties at the time of their separation, together with two acres of land upon which the same is situated, and the sum of $25,000.00, merely and only, in satisfaction of her permanent alimony and dower rights in and to the some three thousand acres of land owned by him, and his personal assets and other property holdings."
Assignment 8 asserts error in not awarding to the wife her inchoate right of dower in the lands of the husband.
The accountant testified that the husband owns 3,000 acres of land. The record contains a balance sheet dated June 30, 1966, and signed by the accountant showing the husband's assets, liabilities, and net worth. As we understand it, the lands are shown at the appraised value of $46,650.00; total assets, $85,998.85; liabilities, $18,690.36; and net worth, $67,308.49.
There is in the record an appraisal dated February 7, 1963, showing the value of the husband's lands as $131,100.00. A balance sheet dated December 31, 1962, shows his net worth as $59,569.76. These papers appear to have been introduced at a prior hearing.
While we might have arrived at a different result if we had been called on to make an original finding, we are of opinion that we cannot say the court was palpably wrong in awarding to the wife $25,000.00 in cash and the dwelling and two acres of land valued at $6,500.00.
Assignment 9.
The wife assigns that the court erred in overruling her application for rehearing.
"A decree or order denying an application for rehearing which does not modify the original decree will not support an appeal, Equity Rule 62, Code 1940; nor is such a decree subject to review on assignments of error on appeal from the final decree. N.A.A.C.P. v. State, 274 Ala. 544, 150 So.2d 677[13], and cases there cited. * * *" Sylvester v. Strickland, 278 Ala. 278, 280, 177 So.2d 905.
See also: Smith v. Bank of Blountsville, 262 Ala. 65, 77 So.2d 357; Ex parte Upchurch, 215 Ala. 610, 112 So. 202; and decisions there cited.
Clearly, Assignment 9 is without merit.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and BLOODWORTH, JJ., concur.