Armstrong v. Green

• Decision Date: 06 August 1953
• Docket Number: 4 Div. 718
• Parties: ARMSTRONG v. GREEN et al.
• Court: Alabama Supreme Court

Page 834

68 So.2d 834

260 Ala. 39

ARMSTRONG v. GREEN et al.

4 Div. 718.

Supreme Court of Alabama.

Aug. 6, 1953.

Rehearing Granted Nov. 27, 1953.

Frank J. Mizell, Jr., Montgomery, for appellant.

Cope & Cope and Richard B. Stone, Union Springs, for appellees.

STAKELY, Justice.

On May 19, 1944, a decree was rendered in the equity court granting Eula Edith Green, now Eula Edith Green Armstrong (appellant), a divorce from Comer F. Green (one of the appellees). Under the terms of the decree custody of the minor child Jacqueline Green, who was at the time about one year old, was awarded to appellant and the aforesaid appellee was ordered to pay to the appellant the sum of $35 per month for the support and maintenance of the child. The present proceeding was instituted by appellant by filing a petition for a rule to show cause why the appellee should not be adjudged in contempt of court for his failure to make the monthly payments. The appellee answered denying that he had been guilty of any contempt and alleged that there had been a material change in the circumstances of the parties since the rendition of the original decree and asking that the question of custody of the child be reconsidered and redetermined by the court. The appellant took issue on the allegations of the answer of appellee and by cross-petition asked that the monthly allowance of $35 be increased.

Mrs. S. P. Green (one of the appellees), the paternal grandmother of the child, asked for permission to intervene and prayed for the custody of the child. Testimony was taken orally before the court on three issues made by the pleadings: (1) Was the appellant Comer F. Green in contempt of court? (2) Who was entitled to the custody of the child? and (3) Assuming that appellant was entitled to the custody of the child, was she entitled to an increase in the allowance for her support?

According to the evidence, at the time the original divorce decree was rendered, the appellant was residing with her mother and father, Mr. and Mrs. Ray Farmer, and appellant and her child continued to reside with her parents for about one year. Thereafter she remarried and moved to Panama City, Florida, leaving the child with her mother and father. According to the evidence, Mr. and Mrs. Farmer have had the actual custody of the child continuously from that time up to and including the time that this proceeding was instituted, except for a short interval. During 1949 and 1950 the child spent part of the year with the appellant in Wewahitcka, Fla. During the entire period since 1945, except for the interval referred to, the appellant lived in Panama City and Mr. and Mrs. Farmer lived in Lynn Haven, Wewahitcka and Fort Walton, Fla. While living in Fort Walton, Mr. and Mrs. Farmer operated a night club.

Tendencies of the evidence show that during the first year after the divorce, payments for support were made. During the time the appellant had the child in Wewahitcka, Fla., some payments were made. Since that time the child has been maintained and supported by Mr. and Mrs. Farmer, the mother and father making contributions from time to time. Mr. and Mrs. Farmer never made any demands on the appellee for support of the child. Furthermore they never asked for, expected or wanted support for the child and in the present proceeding they are not asking that they be repaid for the maintenance and support of the child.

The evidence shows that Mrs. S. P. Green, the paternal grandmother of the child, is a woman of fine moral character. She owns a good home with all modern conveniences, located in a good rural area with churches and schools available and she is in every way a suitable person to have the custody of the child and rear her in a proper home and environment.

Mr. and Mrs. Farmer do not ask for the custody of the child.

Appellant, who has remarried and has a child by her second marriage, now owns a home in Panama City, Fla., provided by her father where she would expect the child to reside with her. However she is employed and would not be able to attend to the child personally during the day but would expect her to be supervised by the mother of her present husband. The record appears to be silent on the moral character of the present husband of appellant and his mother and their environment.

The court in its decree found Comer F. Green not guilty of contempt of court and the rule to show cause was dissolved. Furthermore the court gave the custody of the child, Jacqueline Green, to Mrs. S. P. Green, provided that the complainant Mrs. Eula Edith Green Armstrong and Mr. and Mrs. Farmer should have the right of visitation with the child from time to time as may be agreed upon between the parties and if unable to agree, the parties may then apply to the court for an order regarding the same. The court further ordered that Comer F. Green shall pay to Mrs. S. P. Green the sum of $35 per month on the first day of each month from the date of the decree for the support and maintenance of the minor child. The appeal here is from the aforesaid decree, with a petition and prayer in the alternative for a writ of mandamus or such other appropriate relief as the appellant may be entitled to in the premises. Certiorari is the proper way to review the action of the court in refusing to commit for contempt. Ex parte Dickens, 162 Ala. 272, 50 So. 218; Ex parte Hill, 229 Ala. 501, 158 So. 531. See Atkins v. State, 34 Ala.App. 101, 40 So.2d 444, certiorari denied 252 Ala. 227, 40 So.2d 446. Under the general prayer of the petition, the petition can be considered as a petition for certiorari.

There appears to be some difference in the testimony as to the amount paid by Comer F. Green under the original decree rendered in 1944. However it appears that the amounts which he paid cover the amounts substantially required during the first year after the divorce decree. Beyond this Comer F. Green does not deny his failure to make the ordered payments or his ability to make such payments.

It is the insistence of the appellant that Comer F. Green was guilty of contempt upon failure to comply with the decree for support of his minor child when he was admittedly able to do so and furthermore that the accrued installments under the decree are vested and beyond the court's power to destroy or release. In the present case under the decree of divorce the amounts to be paid by Comer F. Green to the appellant were for the support and maintenance of the minor child. Under the evidence after the first year from the decree of divorce, the child has been adequately supported by Mr. and Mrs. Farmer, the parents of the appellant, without expectation or desire on their part for reimbursement.

The weight of authority appears to be to the effect that proceedings to enforce a decree for the support and maintenance of a child are subject to any valid defense against the required payment. 27 C.J.S., Divorce, § 321, pages 1227-1228. See 17 Am.Jur. p. 536.

In Gainsburg v. Garbarsky, 157 Wash. 537, 289 P. 1000, there was an order requiring the father to make periodic payments for the support of the child. But thereafter the father had custody and support of the child for a period of several years. It was held that the mother could not recover the payments for that period. This is a good illustration of the proposition that an order for the payment of money for the support of a minor child is subject to any valid defense. We make the observation that if the appellee had had the custody of the minor child during the entire period and had supported the child, under the appellant's contention, he would still be liable for the full amount ordered to be paid. As a matter of fact Mrs. S. P. Green actually had custody for eight months and supported the child for that period and yet appellant asks that she be paid for the support of the child for that period. In the case of Mason v. Mason, 148 Or. 34, 34 P.2d 328, it was held that a wife who had abandoned the children was not entitled to recover payments during the period of abandonment. In the case of Anderson v. Anderson, 207 Minn. 338, 291 N.W. 508, the wife intentionally violated the terms of the decree by taking the child out of the jurisdiction of the court and it was held that she was thereby precluded from enforcing accrued installments for the support of the child.

We have here a question of first impression in Alabama. In a situation where the child has been adequately supported by third persons without expectation and we might add in this case without desire for reimbursement, it does not seem reasonable that the mother can have any standing in an action brought by her for the unpaid installments. When the mother parted with the custody of the child and placed it in the custody of a third person, who supported the child, surely the mother cannot recover for support which she never accorded the child. Nothing has been lost to the child by the default of the father and the breach by the husband of the duty to pay would be merely technical. To award to the mother in the present instance for the benefit of the child a sum representing the amount unpaid, would be an unjust and inequitable enrichment.

'If the wife did not pay for the support of the child and such support was voluntarily furnished by a third party, or if she paid for such support without expecting to be reimbursed by the husband, then, of course, the money to be paid under the award for the child's benefit was not required, and nothing was lost to the child by plaintiff's default. Then the breach by the husband of the duty to pay would be only technical. To award either to the mother, for the benefit of the child, or directly to the child, a sum representing the amount unpaid would be an unjust and inequitable enrichment. Neither of them could recover in an action. * * * Under such circumstances, in the exercise of discretion, plaintiff should not be punished for contempt. Power to...