Jackson v. Jackson

J. ED TEASE, Retired Circuit Judge.

This is an appeal by the husband from final decree of divorce rendered after an ore tenus proceeding.

The sole issue presented is whether the trial court abused its discretion by its decree of property division and periodic alimony.

As no record of the testimony was prepared at trial, we have before us only the clerk’s record with exhibits and the briefs of parties. The briefs reveal a sharp disagreement between the parties on the matter of income and amount of equity in the residence.

In its final decree of divorce, the trial court awarded the wife periodic alimony of $250 per month until her death or remarriage, and title to the residential real estate subject to the mortgage.

It is well established that the matters of property division and alimony are within the sound discretion of the trial court and will not be disturbed on appeal except where such discretion was plainly and palpably abused. Hamby v. Hamby, 515 So.2d 1265 (Ala.Civ.App.1987); Turquitt v. Turquitt, 506 So.2d 1014 (Ala.Civ.App. 1987).

All of the evidence before the trial court is not contained in the record on appeal. In such cases the conclusive presumption here is that the trial court’s decree is supported by the evidence and must be affirmed. Ezell v. Ezell, 440 So.2d 560 (Ala.Civ.App. 1983); Glass v. Glass, 405 So.2d 37 (Ala. Civ.App.1981); Jenkins v. Jenkins, 352 So.2d 1 (Ala.Civ.App.1977).

For the foregoing reasons the judgment of the trial court is due to be, and is, affirmed.

Appellee’s request for an attorney’s fee is hereby granted in the amount of $500.

The foregoing opinion was prepared by Retired Circuit Judge J. ED TEASE while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.