In re the Marriage of Maley

JOHNSON, J.,

dissenting.

I cannot agree with some of the conclusions in the majority opinion. The trial court’s award of $400 per month does not constitute half of the husband’s net salary. The husband testified that he is required by his employer to travel most of the time and that he is reimbursed for his expenses including food and lodging. The wife did not receive the bulk of the assets. The principal asset of the estate was the proceeds from the sale of the real property which was divided equally. The only disproportionate element in the division was the award to the wife of a promissory note for $2,600. The crucial issue, however, concerns whether the wife is capable of seeking employment. The majority opinion states that this issue was disputed, but reaches no conclusion. The evidence is undisputed that the wife is 50 years old, has an 11th grade education, no teeth and is quite hard of hearing, if not deaf. The wife also complains of an injury to her arm and various nervous ailments. The injury resulted from an automobile accident and there was conflicting testimony concerning the extent of the disability. There was no medical testimony in all probability because neither party could afford it.

While the case is here on de novo review, this is a classic case where great weight should be given to the trial judge’s opportunity to observe the witnesses. By seeing the witnesses first hand he had a greater opportunity to ascertain the extent of the wife’s *602disability. The effect of the majority opinion is to condemn to public welfare a woman who has been married for over 32 years and raised six children.

Considering the length of the marriage, the relative earning capacity of the parties and other circumstances, the lower court’s decree should be affirmed.