Boley v. Rowe

• Citation: 409 So.2d 436
• Parties: Ray M. BOLEY v. Dorothea Qualls Boley ROWE. Civ. 2887.
• Decision Date: 06 January 1982
• Court: Alabama Court of Civil Appeals

Page 436

409 So.2d 436

Ray M. BOLEY v. Dorothea Qualls Boley ROWE.

Civ. 2887.

Court of Civil Appeals of Alabama.

Jan. 6, 1982.

Macon L. Weaver of Weaver, Price & Pearson, Huntsville, for appellant.

Stephen M. Wilson of Johnston, Johnston & Moore, Huntsville, for appellee.

HOLMES, Judge.

The mother petitioned the trial court for an increase in child support. After several hearings and an appeal, the trial court eventually modified the child support payment by increasing the amount the father is required to pay.

The father appeals and we affirm in part and reverse in part.

The record, viewed with the attendant presumptions, reveals the following pertinent facts:

The parties were divorced on September 1, 1970. By agreement, incorporated in the divorce decree, the father was to pay $300 per month as child support. In May, 1978, the mother petitioned the trial court for an increase in child support. This petition was denied in August, 1978, and no appeal was taken.

In April, 1979, the mother again petitioned for increased child support. Evidence was heard ore tenus before a different trial judge who, in November, 1979, denied the petition. In reaching his decision the trial judge stated that he considered only the circumstances of the parties between August, 1978, and November, 1979. The trial judge indicated that if he had considered the circumstances of the parties from the time of the divorce decree he would probably have reached a different conclusion.

The mother appealed from the above decision claiming the trial court erred in not considering the changed circumstances that had occurred since the divorce decree which was the last decree that awarded child support. This court in Rowe v. Boley, 392 So.2d 838 (Ala.Civ.App.1980), aff'd, 392 So.2d 840 (Ala.1981), accepted the mother's contention and held that the trial court erred in not considering any material change in circumstances that might have occurred since the original award of support. The trial court's decree was reversed and the cause remanded for further proceedings consistent with this court's opinion.

The trial court, on remand, did not hold another hearing on the matter. Instead, it considered the testimony it had previously heard along with the opinions of this court and the supreme court and held that there had been a material change in the circumstances of the parties. The trial court then increased the child support from $300 per month to $728 per month. The trial court further ordered that the increase in child support was to be retroactive to April, 1979, the month the modification petition was filed. Accordingly, the trial court entered judgment against the father for $9,844, representing the retroactive increase in support payments. On petition of the father, the amount of child support was later reduced to $667 per month and the judgment representing retroactive child support payments was reduced to $8,441.

On appeal the father raises the following issues:

1. Did the trial court err to reversal in not holding an additional evidentiary hearing?

2. Did the trial court so abuse its discretion in the award of child support as to require reversal?

3. Did the trial court err to reversal in making the increase in child support retroactive? This court will address each of these contentions.

The father's first contention regarding the failure to hold an additional evidentiary hearing is without merit for two reasons. First, this court's opinion in Rowe v. Boley, supra, did not necessarily require the trial court to hold another evidentiary hearing. On November 21, 1979, a full evidentiary hearing on the mother's petition to modify the amount of child support was held. At that hearing the trial court heard evidence concerning the changed circumstances of the parties extending from the date of the original award of child support in 1970 to the time of the hearing. The trial court reached a decision adverse to the mother, as indicated. In Rowe v. Boley, supra, we reversed the trial court because it had failed to consider the evidence of changed circumstances since 1970 and we remanded the case for further proceedings not inconsistent with the opinion.

The trial court, as directed by this court, then considered all the evidence of changed circumstances since 1970 that it had previously heard. That evidence, viewed in light of the opinions of this court and the supreme court, convinced the trial court that there had been a material change in circumstances. Thus, under the present circumstances, it was unnecessary for the trial court to hold additional hearings in order to comply with the court's directions on remand. Put another way, all the pertinent evidence was before the trial court.

Secondly, a review of the record indicates that the father at no time requested an additional hearing. Such a request and a ruling by the trial court are necessary to place the trial court in error. See Posey v. St. Clair County, 270 Ala. 110, 116 So.2d 743 (1959); State Farm Mutual Automobile Insurance Co. v. Barrow, 46 Ala.App. 392, 243 So.2d 376 (1971).

The father's second contention as to the increase in child support is likewise without merit.

This court has held on numerous occasions that the modification of a prior child support decree, based upon changed circumstances of the parties, is within the sound discretion of the trial court. The exercise of this discretion is to be disturbed on appeal only if there is such an abuse of discretion as to be plainly and palpably wrong. Young v. Young, 351 So.2d 611 (Ala.Civ.App.1977); White v. White, 334 So.2d 908 (Ala.Civ.App.1976).

We find no abuse of discretion in this case. For a period of some nine years the father has been required to pay $300 per month in child support. This is equivalent to...