Roubicek v. Roubicek ( 1945 )

The original opinion, we think, is subject to no ambiguous construction. It was deemed unnecessary to itemize the account to be stated between the parties. Only those items considered erroneously adjudicated by the court were treated.

But, that the formula be further simplified, the opinion is thus extended.

The stipulations of Sections 2, 3, 4, 8, 9, 10 and 11 of the decree have received the approval of this court and are affirmed.

The $1,318 in the personal account of the respondent was intended by the trial court to have been included in the figuration of an equal division of the so-called family assets and we think properly so. Hence in reframing the decree this item will be so treated and charged against him just as the net equity in the residence was charged against complainant.

The $4,700 is, of course, not the daughter's and in a proper proceeding between the two should be revested in appellee. In stating the account therefore we treat it as a part of the total estate (items 3 and 4, statement below).

Assuming, therefore, the list of total assets embodied in counsel's original brief for appellee to be correct (omitting the items designated in sections 2, 3, 4, 8, 9, 10 and 11 of the decree hereinabove mentioned and the $9,000 in bonds and $2,742 in money in Ruth's name, of which Roubicek raises no objection), the account for division should be thus stated:

1. Leta Roubicek First Nat. Bank (Savings) $ 5,000.00

2. Leta Roubicek Bank for Savings Trusts 5,000.00

3. Ruth Roubicek Bank for Savings Trusts 2,000.00

4. Ruth Roubicek Steiner Bros. (Savings) 2,700.00

5. Leta Roubicek First Nat. Bank (Checking) 2,000.00

6. Leta Roubicek Birmingham Trust (Savings) 1,000.00

7. Associated Engineers First Nat. Bank 1,770.00

8. Associated Engineers Steiner Bros. 2,000.00

9. J. Roubicek Steiner Bros. (Savings) 1,318.00

10. Net equity in residence 7,000.00 ---------- Total $29,788.00

Trust funds of Czecho-Slovakian relatives to be deducted $11,035.02

Total $18,752.98

One-half to husband $ 9,376.49

To recapitulate, Mrs. Roubicek is due to reimburse Mr. Roubicek the last stated sum minus $1,318 (item 9, above), or $8,058.49.

Appellee, through counsel, acerbitously complains that in determining the divisible assets, the net equity in the residential property should not have been considered because she owns it. This position ignores the most obvious, that this phase of the proceeding does not seek to determine the title to property, but to establish an equitable, gross award of alimony, and in so doing the relative financial standing of the parties is a matter to be considered. To adopt appellee's contention would achieve the manifestly inequitable result of a repayment to Roubicek of but a relatively small part of a considerable estate, of which he was practically the sole creator.

One matter called to attention on rehearing does impress us as containing merit and deserving of comment.

It is suggested that in awarding Mrs. Roubicek the income from her husband's business, pending his return from naval service, the court did so, in lieu of ordering the payment of monthly allotments by respondent as additional alimony. The trial court is better advantaged to determine such matters than this court and, if future exigencies should require a modification of the decree to this end, there would be no legal impediment in the way of such an order. Decrees relating to such matters are always subject to revision and modification (Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911), and this opinion will not be regarded as restrictive of the right of the trial court, in the exercise of a sound discretion, to act in the premises.

Opinion extended and application overruled.