## Facts

- The parties married in April 1984 and separated in December 2004 after about 20 years.
- The husband, a U.S. Army sergeant major, earned about $6,755 per month and had substantial future military-retirement benefits.
- The husband sought a divorce; the wife counterclaimed alleging adultery.
- The wife offered circumstantial evidence of an alleged affair with a mutual friend, including frequent phone contact, disputed explanations about travel, and the husband’s admission he stayed overnight at the friend’s apartment after separation while denying sexual relations.
- The trial court granted a divorce on adultery, incompatibility, and irretrievable breakdown.
- The judgment divided marital property (including vehicles, accounts, Iraqi currency, a cashier’s check, real property, and burial plots), awarded the wife $2,500 per month in periodic alimony, and awarded her 25% of the husband’s military-retirement benefits with a corresponding reduction of alimony when retirement payments began.
- The trial court also required the husband to name the wife as beneficiary of a retirement survivor-benefit plan and to keep the wife as the irrevocable beneficiary of an existing servicemember life-insurance policy until the wife’s death, remarriage, or cohabitation, while barring him from borrowing against or encumbering the policy.

## Issues

1. Whether the evidence was sufficient to support adultery as a ground for divorce under Alabama’s circumstantial-evidence standard.
2. Whether the trial court exceeded its authority or abused its discretion by ordering the husband to maintain the wife as an irrevocable beneficiary of his life-insurance policy and restricting his ability to encumber the policy.
3. Whether the overall property division, periodic alimony, and retirement-benefit allocation were plainly and palpably wrong.

## Decision

- The appellate court affirmed the divorce judgment to the extent it granted a divorce and generally upheld the property division, periodic alimony, and retirement-benefit award.
- The court reversed the adultery ground, holding the evidence created only suspicion and did not meet Alabama’s proof standard for adultery.
- The court reversed the life-insurance provisions requiring an irrevocable beneficiary designation for an extended period and prohibiting encumbrance of the policy.
- The case was remanded for entry of a modified judgment consistent with the appellate rulings.

## Legal Principles

- In an ore tenus divorce trial, factual findings are presumed correct and are reversed only for plain and palpable error.
- Adultery may be proven by circumstantial evidence, but the proof must be sufficiently strong to permit a reasonable inference of adultery and must exceed mere suspicion.
- Trial courts have broad discretion in property division and periodic alimony, assessed in light of factors such as marriage length, earning capacity, conduct, and future prospects; appellate review is deferential.
- A court may require life insurance as security for support in appropriate cases, but the requirement must be limited to a proper support-related purpose and may not impose overbroad, indefinite restraints on the insured spouse’s control of the policy.

## Conclusion

The appellate court upheld the divorce and most economic provisions but rejected adultery as a supported ground and struck the overbroad life-insurance mandate, remanding for revision consistent with limits on proof of adultery and on using insurance to secure support.


Capone v. Capone, 962 So. 2d 835 (Ala. Civ. App. 2006)