Aiken v. Aiken

• Court: Alabama Supreme Court
• Writing for the Court: BOULDIN, J.
• Citation: Aiken v. Aiken, 221 Ala. 67, 127 So. 819 (Ala. 1930)
• Decision Date: 10 April 1930
• Docket Number: 6 Div. 532.
• Parties: AIKEN v. AIKEN.

127 So. 819

221 Ala. 67

AIKEN v. AIKEN.

6 Div. 532.

Supreme Court of Alabama

April 10, 1930

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Petition of William H. Aiken to modify a decree for alimony, resisted by Helen H. Aiken. From a decree denying the petition petitioner appeals and applies for alternative writ of mandamus.

Affirmed mandamus denied.

Vaughan & Davis, of Birmingham, for appellant.

Eugene H. Hawkins, of Birmingham, for appellee.

BOULDIN J.

This proceeding is to review a decree denying the petition of the husband to modify a decree for permanent alimony upon divorce because of changed conditions affecting the financial status of the husband.

Where a decree for permanent alimony is not for a lump sum, nor otherwise indicative of a division of property merely, but a monthly allowance for the wife's maintenance, running into the indefinite future, and payable, if need be, from the future earnings of the husband, the court has power to modify the same because of changed conditions of the parties, whether such power be expressly reserved or not.

This rule has been recently declared after a review of our former decisions by the full court, and may now be regarded as the settled law of Alabama. Epps v. Epps, 218 Ala. 667, 120 So. 150.

In the same connection, and during the same sitting of the court, we reviewed our former decisions as to the method of review, and declared that a decree finally disposing of the matter presented by such petition is a final decree, and therefore reviewable on appeal, notwithstanding it may be subject to future modification because of changed conditions. This may also be now regarded as the settled rule. Smith v. Smith, 218 Ala. 701, 120 So. 167; Bailes v. Bailes (Ala. Sup.) 124 So. 215.

On filing the petition to modify, a reference was had to the register. He heard the testimony orally, and made his report finding the payment should be reduced from $100 to $80 per month. The court sustained exceptions to this report, and dismissed the petition.

Appellant relies upon the presumption in favor of the report of the register in such cases. The evidence was without conflict, consisted of the testimony of Dr. Aiken, the petitioner, alone. If the credibility of his testimony was involved, the presumption in favor of the register's finding would obtain as in other cases. But, taking his testimony as true, no presumption will be here indulged in favor of the opinion of the register over that of the trial judge, as to whether the uncontroverted evidence makes a case for modification of the allowance.

The wife was granted a divorce upon the ground of adultery. A decree for permanent alimony of $100 per month was entered by agreement.

We must proceed on the assumption this decree was equitable and fair.

Any anticipated increase in income on the part of the husband at that time, which may not have materialized,...