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ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2008-2009

2070489


Deborah Lynn Weeks

v.

Michael Roy Weeks


Appeal from Marion Circuit Court
(DR-07-176)

MOORE, Judge.

Deborah Lynn Weeks ("the wife") appeals from a judgment

entered by the Marion Circuit Court ("the trial court")

divorcing her and Michael Roy Weeks ("the husband") and

dividing the parties' property.  We affirm.

Procedural History

On August 8, 2007, the wife filed a complaint requesting
a divorce from the husband.  The husband answered the
complaint on August 22, 2007.  After a trial, the trial court
entered a judgment on October 16, 2007, awarding the wife
$20,000 as alimony in gross, a 1999 Chrysler automobile, and
certain other items of personal property.  The trial court
awarded the husband his retirement accounts, the parties' real
property, the parties' bank accounts, a truck, and all
personal property not specifically awarded to the wife.  The
trial court ordered the husband to pay the debt associated
with the real property and the parties' credit-card debt.  On
November 15, 2007, the wife filed a motion to alter, amend, or
vacate the divorce judgment or, in the alternative, for a new
trial. After a hearing, the trial court amended the judgment
to require the husband to pay the wife $350 per month in
alimony for a period of 10 years.  The wife filed her notice
of appeal to this court on February 22, 2008.

Issue

On appeal, the wife argues that the trial court exceeded

its discretion in its division of property because, she says,

the division of property is inequitable.

Standard of Review

Because the trial court heard oral testimony on this

issue, the ore tenus rule is applicable.

"'[W]hen a trial court hears ore tenus
testimony, its findings on disputed facts are
presumed correct and its judgment based on those
findings will not be reversed unless the judgment is
palpably erroneous or manifestly unjust.' Philpot v.
State, 843 So. 2d 122, 125 (Ala. 2002).  '"The
presumption of correctness, however, is rebuttable
and may be overcome where there is insufficient
evidence presented to the trial court to sustain its
judgment."' Waltman v. Rowell, 913 So. 2d 1083, 1086
(Ala. 2005) (quoting Dennis v. Dobbs, 474 So. 2d 77,
79 (Ala. 1985))."

Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005).

"[T]he ore tenus rule affords a correct and
necessary deference to the trial court's factual
findings, recognizing that an appellate court sees
only a written record and does not observe the
appearance, behavior, and demeanor of live
witnesses. The ore tenus rule simultaneously
requires the appellate court to review the trial
court's judgment to determine if it is supported by
the appropriate level of evidence. The rule thus
preserves the safeguards of the standard of proof
that was utilized by the trial court without
improperly usurping the trial court's role as
fact-finder."

J.C. v. State Dep't of Human Res., 986 So. 2d 1172, 1185-86

(Ala. Civ. App. 2007). Additionally, "[a] property division

made by a trial court will not be set aside on appeal absent

a palpable abuse of its discretion." TenEyck v. TenEyck, 885

So. 2d 146, 154 (Ala. Civ. App. 2003).

"The purpose of the division of marital property is to

give 'each spouse the value of [his or her] interest in the

marriage. Each spouse has a right, even a property right in

this.'" Lo Porto v. Lo Porto, 717 So. 2d 418, 421 (Ala. Civ.

App. 1998) (quoting Pattillo v. Pattillo, 414 So. 2d 915, 917

(Ala. 1982)).

"On appeal, the issues of alimony and property
division must be considered together. The trial
court's judgment on those issues will not be
reversed absent a finding that the judgment is so
unsupported by the evidence as to amount to an abuse
of discretion. [Parrish v. Parrish, 617 So. 2d 1036
(Ala. Civ. App. 1993).] The property division need
not be equal, but it must be equitable. Id. The
factors the trial court should consider in dividing
the marital property include 'the ages and health of
the parties, the length of their marriage, their
station in life and their future prospects, their
standard of living and each party's potential for
maintaining that standard after the divorce, the
value and type of property they own, and the source
of their common property.' Covington v. Covington,
675 So. 2d 436, 438 (Ala. Civ. App. 1996)."

Courtright v. Courtright, 757 So. 2d 453, 456 (Ala. Civ. App.
2000).

Facts

The parties were married on August 4, 1995.  The wife
testified that, approximately one week before the parties
married, she had filed a Chapter 7 bankruptcy proceeding in
the United States Bankruptcy Court.  At the time of the
marriage, the wife was employed and owned a house, an
automobile, her furniture, and personal items; the husband was
employed and owned a house, $500 in a checking account, and an
automobile valued at approximately $2,200.  Upon the marriage,
the wife quit her job, sold her house, netting $3,000, and
sold her refrigerator for $500, and she and her younger child
moved into the husband's house.

After moving in with the husband, the wife worked only
for a brief time, earning a total of $978.85.  The wife
testified that she became disabled in 1996, that she had
received a lump-sum Social Security disability payment of
$15,624.20 in 1998, and that she had since received a monthly
Social Security disability benefit, which was $740 at the time
of the trial. The wife testified that she takes prescription

medication for pain and several other prescription medications
for various conditions.  During the marriage, the husband
worked as a miner about 60 hours per week and earned
approximately $60,000 to $70,000 annually. The husband worked
until January 2006, when he suffered an on-the-job injury to
his neck and lower back.  At the time of the trial, the
husband was receiving $629 weekly in workers' compensation
benefits for temporary total disability.  See Ala. Code 1975,

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