Bell v. Bell

• Decision Date: 14 December 1983
• Citation: 443 So.2d 1258
• Parties: Robert BELL v. Mary Frances BELL. Civ. 3679.
• Court: Alabama Court of Civil Appeals

Page 1258

443 So.2d 1258

Robert BELL v. Mary Frances BELL.

Civ. 3679.

Court of Civil Appeals of Alabama.

Dec. 14, 1983.

Steven E. Haddock of Aldridge & Haddock, Decatur, for appellant.

Dan F. Nelson of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellee.

PER CURIAM.

The husband appeals from the trial court's refusal to order a reduction in alimony upon the husband's modification petition.

After having considered the applicable case law and the decree entered by the trial court, this court must reverse in part the judgment entered below and remand in part for further proceedings.

There is evidence that reveals the following: The parties, after having been married twenty-six years, were divorced by a decree of the Circuit Court of Morgan County on July 17, 1981. At the time of the divorce, the forty-nine-year-old husband was a partner in an established Decatur, Alabama accounting firm, with gross earnings for 1980 in excess of $78,000. The wife, on the other hand, had not worked outside the home since the early part of the marriage and had numerous medical problems. The decree divorcing the couple incorporated the parties' agreement as to the terms of alimony. Under that agreement, the husband was obligated to make monthly payments totaling $1,743 to or on behalf of the wife. That figure includes $1,000 of periodic alimony, $500 for a house payment and utilities, and various amounts for the wife's country club dues and for premiums due on hospitalization, major medical, and life insurance policies benefiting the wife.

Within two months after the divorce, the husband's relationship with the other partners in his accounting firm had deteriorated. Because of his marital difficulties and claims by the other partners that his productivity had decreased, the husband voluntarily left the partnership on September 1, 1981. He then went into solo practice as a public accountant, grossing only $3,000 for the last four months of 1981 and incurring substantial start-up and overhead expenses.

In the first ten months of 1982 (which preceded the modification hearing), the husband grossed $37,000 from his solo practice. Based on this figure, he projected that his 1982 gross earnings would reach only fifty percent of his gross earnings for 1980, his last full year in the partnership before the divorce. In addition to this marked drop in gross income, the husband substantially increased his debt obligations, as he borrowed in excess of $50,000 for payment of a partnership indebtedness upon its dissolution, business start-up and overhead costs, and personal living expenses. At the modification hearing the husband estimated that his net worth and estate had decreased from approximately $250,000 at the time of the divorce to approximately $87,000 a year later.

In seeking modification of the monthly alimony figure, the husband contended that his current financial status, in particular his lack of liquidity, rendered him unable to meet the $1,743 obligation. The husband did, however, concede that he is currently receiving $1,934 monthly in fixed income from sources outside his solo practice ($1,599 for his interest in the partnership and in partnership real estate and $335 military disability).

Based upon these facts, the trial court made the following order:

"The Court finds from a consideration of all the evidence the following:

"1. The petitioner Robert Bell's business income has changed in character and substance to a sufficient degree to afford certain modifications. The petitioner is still in a position to continue to make those payments originally agreed to, however, it appears that he does not have sufficient liquidity to continue to pay without some sacrifice to his economic position. It appears to the Court that the financial wellbeing of both parties could possibly be adversely affected.

"The Court does not find sufficient evidence before the Court to warrant a forgiveness of the obligations which the petitioner voluntarily incurred at the time of divorce. The Court is of the opinion that the petitioner should be afforded an opportunity to defer certain of his obligations (at substantial interest) should he consider it expedient from a business standpoint.

"2. The respondent is entitled to recover an attorney's fee for a portion of the services performed by her attorney of record.

"It is, therefore,

"CONSIDERED, ORDERED AND ADJUDGED that:

"The petitioner, Robert Bell, shall continue to pay all amounts previously agreed to and ordered, or at his election, he may defer the monthly temporary alimony installments in the amount of $1,000.00 a month to the extent of reducing these installments to $750.00 a month, thereby deferring $250.00 of each $1,000 installment for a period of two (2) years. At the end of two (2) years he will once more pay at the rate of $1,000.00 a month.

"All amounts of deferred alimony will accrue to the interest which Mary Frances Bell now owns in the jointly owned home. Interest at the rate of fifteen percent (15%) per annum shall accrue on all deferred payment. This interest will be compounded annually. All deferred amounts shall be secured by a lien against the principal dwelling house described in the original judgment which is yet to be sold in accordance with the terms of the original judgment. At the time of sale, all deferred payments (with interest) shall be paid from the proceeds of the dwelling house.

"Robert Bell shall advise the Clerk within thirty (30) days if he proposes to exercise this option or continue to pay according to the original judgment."

The court also awarded the wife an attorney fee of $500.

On appeal of this judgment, the husband makes the following three arguments: (1) that the lower court erred when, after finding that the husband's financial position had changed substantially, it refused to order a reduction in the periodic alimony earlier ordered; (2) that the alternative payment structure set up by the court was in the nature of a non-modifiable judgment or alimony in gross; and (3) that the court had no authority for awarding the wife an attorney's fee. Countering the husband's arguments, the wife contends that there has been no abuse of discretion and that she is entitled to attorney fees for services rendered on the instant appeal.

The principles generally applicable to periodic alimony modification cases are as follows: The amount fixed as periodic alimony, like child support, is always subject to modification, Jernigan v. Jernigan 335 So.2d 178 (Ala.Civ.App.1976), upon showing of material changed circumstances of the parties, Cooper v. Cooper, 401 So.2d 99 (Ala.Civ.App.1981). A court will not continue to require a spouse to meet payments which are clearly excessive. Menton v. Menton, 405 So.2d 940 (Ala.Civ.App.), cert. denied, 405 So.2d 942 (Ala.1981). However, the burden of proving material change in circumstances sufficient to warrant modification is on the petitioner, Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979).

A modification based upon changed circumstances is largely within the discretion of the trial court, and the exercise of such discretion will not be upset on appeal absent such an abuse of discretion as to be plainly and palpably wrong. Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979).

In reviewing the decree of the learned and distinguished trial judge, this court is faced with several inconsistencies. For example, while the court found that the husband's income "has changed in character and substance to a sufficient degree to afford certain modifications" and that the husband "does not have sufficient liquidity to continue to pay without some sacrifice to his economic position," it denied the requested reduction, saying that "petitioner is still in a position to continue to make those payments originally agreed to" as there was insufficient evidence "to warrant a forgiveness of the obligations" imposed by the original divorce decree.

In view of the above, this court is of the opinion the case should be remanded to the trial court with the direction that the trial court specifically determine whether a material change in circumstances has occurred and enter...