Sankey v. Sankey

ON MERITS

We have previously set out above the fact that the original decree granted to appellant a divorce upon evidence that appellee had abandoned her in 1958, some fourteen years prior to the decree. The court determined that appellant was entitled to alimony and granted an award stated to be in gross. Such award consisted of the right to live in the house belonging to appellee and to farm 25 acres during her lifetime. In light of the evidence that the house is dilapidated and falling in, without water except rain water caught in a cistern from off the roof, and that the land is only timberland, there is much question as to the actual value of the alimony awarded. If the house is to be maintained and improved it must be at the expense of appellant. If it becomes unlivable and appellant must move she loses all rights in the house and the land. The evidence before the court was that appellant is not in good health, unemployed and without present income. She was specifically denied the right to make changes, such as tearing down certain unlivable rooms, in the decree on requested instructions.

Though granting all presumptions due a decree rendered upon testimony heard orally by the court, Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461 [cert. denied, 289 Ala. 751, 267 So.2d 467], we consider the award of alimony in gross is inadequate considering the estate of the husband and the condition of the wife. The award is so conditional as to be questionable as alimony in *104gross in fact. We are of the opinion that the court, having in the exercise of its discretion found the appellant to be entitled to alimony, should have been as liberal in the award as the husband’s estate would permit. Section 32, Title 34, Code of Alabama 1940; White v. White, 278 Ala. 682, 180 So.2d 277; Sides v. Sides, 284 Ala. 39, 221 So.2d 677. It appears to this Court from the evidence that if appellant is to benefit from the award given by the court, she will be required to make substantial investments and repairs which will ultimately inure to the benefit of appellee’s estate.

We therefore reverse the decree of the trial court insofar as the award to appellant of alimony in gross. We find appellant to be entitled to alimony in gross and direct award to her of the house where she now resides, and 25 acres of land connected therewith in fee simple. Since the evidence does not disclose the layout of the total tract of 160 acres in relation to the house and ways of ingress and egress, the trial court is directed to determine the description of said 25 acres giving due regard to securing the best interest of appellant while protecting the value of the remaining 135 acres of appellee. The setting aside of said 25 acres may be accomplished by agreement or the taking of additional testimony.

The remainder of the decree is affirmed and the case is remanded to the trial court for further proceedings in accord with this decision.

Motion having been made to this Court for allowance of an attorney fee to appellant for service of her attorneys on this appeal, it is considered by the Court that such motion should be granted. The sum of $250 is hereby granted for attorney’s fee on appeal.

Affirmed in part, reversed in part and remanded with directions.

BRADLEY and HOLMES, JJ., concur.