Brock v. Brock

Decision Date17 August 1967
Docket Number8 Div. 230
PartiesCarolyn Susan BROCK v. James Marvin BROCK, Jr., et al.
CourtAlabama Supreme Court

T.J. Carnes, Albertville, for appellant.

Lusk & Lusk, Guntersville, for appellees.

HARWOOD, Justice.

In 1957 the appellant, Carolyn Susan Baird and James Brock, Jr., were married. Each was about 17 years of age at the time.

Thereafter they lived in the home of the James Brock, Sr.'s in Albertville except at the time James Brock, Jr., attended college for a year or so. It appears that the Senior Brocks built a home for the young couple and they resided in this home for a while.

In April 1962, James and Susan separated and Susan and their young son moved in with the Senior Brocks. In November 1962, Susan was awarded a decree of divorce on the grounds of cruelty. She and her son continued to reside in the Brock home.

The decree of divorce awarded gross alimony to Susan of $2,500 and an additional sum of $60.00 per month so long as she remained unmarried. Confirming an agreement between the parties and the parents of each of the parties, custody of the child was awarded to the paternal grandparents subject to visitation rights specified in the decree.

Susan obtained a job in Huntsville, but returned to the Senior Brock's home every weekend. After about nine months Susan resigned her job in Huntsville and went to live with her parents in Lebanon, Tennessee. Shortly thereafter she filed a petition for custody of her child.

Pending this proceeding, an agreement was worked out between the Senior Brocks, and Mr. and Mrs. Baird, parents of Susan, and J. M. Brock, Jr., and Susan, whereby the custody of the child was to be vested in Susan subject to reasonable visitation rights. It was further agreed that the father and/or the Senior Brocks should be entitled to the custody of the child for two months during the summer; that after the child is enrolled in grade school the Brocks should have his custody for one weekend per month as specified. Each custodian was to share equally in responsibility, time, and expense in transporting the child, it being the obligation of the one having custody at the time to deliver the child to the other party at the end of that time.

It was further agreed that the father shall pay to the mother the sum of $20.00 per month for the support of the child, except when the child is in custody of the Brocks. This amount was to be deemed reasonable until the child is enrolled in grade school, at which time the amount was to be renegotiated by the parties. The obligation of the father for the monthly payments was to end if the mother ceased to reside in Lebanon, Tennessee.

On 11 March 1964, the court entered a decree finding this agreement to be to the best interest of the child, and ratified and confirmed it.

Susan and her child then went to live with her parents in Lebanon, Tennessee. Eventually, she secured employment in Nashville, Tennessee, as a legal secretary.

On 20 August 1965, Susan filed a petition in which she sought to have the court set a reasonable sum for the support of the child; to have removed the condition that to receive support payments she must reside in Labanon, Tennessee; a declaration that the maternal grandparents of the child (the Bairds) have, under the present circumstances, no legal obligation to assist in the support of the child; taking from the Brocks all legally enforceable rights of visitation and custody; to make changes in the custody provisions to meet the convenient needs of all parties; and to direct the respondents to pay all costs of this proceeding, including a reasonable fee for services of complainant's attorney.

Evidence on this petition was taken before the Register. Susan appeared as a witness, and the interrogatories of the husband, and his answers were introduced. There was also a stipulation as to the husband's assets and earnings.

In her testimony before the Register, Susan testified that at the time of the original agreement whereby by Brocks were given custody of her child, she was distraught and without financial means. Since going to her parents' home she has been able to reorganize her life and her thinking. It is now her desire that she establish a separate home for herself and her child. This would necessitate that she employ a housekeeper to live with her and care for her child when she was working.

Her mother has cared for her child in excellent fashion since they returned to the Baird home. The child is happy in his surroundings and is enrolled in a nearby school which is modern in every respect. Her parents have bought a pony for the boy. They have a comfortable home some ten miles out from Lebanon.

After she had lived in her parents' home for a while, she improved emotionally to the extent that she was able to go to work as a legal secretary for a law firm in Nashville. Her starting salary was $300.00 per month, and has now been increased to $350.00 per month.

The distance from her home to Nashville is approximately 40 miles, and it is necessary that she leave rather early in the morning to get to her job at 8:00 A.M. She usually leaves her job at 4:00 P.M., and arrives home around 6:00 P.M., except on Saturdays when she works a half day. She does the washing and ironing for herself and child after she arrives home, and also helps her mother with the household chores.

The father of the child has never driven to Labanon to return the child to the Brocks, but the Senior Brocks have always been the ones to call for the child.

Susan testified that her former husband had never actually done any work while they were married, but had lived off the bounty of his father. She also testified that it was the Senior Brocks who had made the $20.00 per month support payments.

When she drives to Albertville, Alabama, to pick up her child after his visits to the Brocks, she does not get back to her parents' home until around six or seven P.M. She then must bathe the child, put him to bed, and then do some washing and ironing. These trips are particularly arduous on her because she suffers from car sickness.

Her actual take home pay is about $70.00 per week. She pays her mother $60.00 per month as board for herself and child. She has payments of $75.00 on her car to make each month, and the costs of gasoline in commuting to Nashville and parking expenses in Nashville while at work, and the cost of her lunches.

In answers to interrogatories, the husband testified that his education consisted of high school, one year in a junior college and one semester at the University of Alabama. In this connection, Susan testified that at the time of their separation in April, her husband was not enrolled in the University, he had no occupation, and 'he was just residing down there.' At the time of their divorce in November her husband 'was in the category of working for his father.'

In his answers to the interrogatories, James Marvin Brock, Jr., further stated that since March 1964, he has been employed by the Brock Pepper Company, then by the Police Department of the City of Albertville for several months, and at each of these employments, he earned approximately $50.00 (we presume per week). He is presently employed by the Brock and White Pepper Company at a salary of $40.00 per week; that he married in August 1964, and that he does not own the home in which he presently resides, nor does he pay rent thereon.

It was stipulated that Brock, Jr., resigned his job as policeman for the City of Albertville after a few months of employment, and that his salary as policeman was $220.00 per month.

After the testimony of Susan had been written up, the Register submitted it, and all the other evidence to the court, with appropriate notes of testimony by the respective parties.

Thereafter the court entered a decree which in effect continued the custodial provisions of the former decree, except that the former decree was amended to provide that Susan might call for the child at 2:00 P.M., instead of 5:00 P.M., while he was with the Brocks on the weekends.

The court further decreed that:

'* * * the matter of whether or not or to what extent the sum now being paid by the defendant father for the support of said child should be increased is hereby referred to the Register, who is authorized to decide and report on such issues on the testimony already taken, if in his reasonable judgment such evidence is sufficient for a determination, and he will report his findings promptly, letting his report remain on file for five days for objections and exceptions, and all other relief sought in said petition as amended be and the same is hereby denied, except that the costs of the proceedings are hereby taxed one-half to petitioners and one-half to defendant; further orders and decrees will await the coming in of said report.'

The Register thereafter duly submitted his report which in parts pertinent to this review reads:

'Testimony presented before the Register shows that the minor child of the parties is now enrolled in school and now has more expenses. It was also shown that Petitioner-Complainant is now employed and is earning $350. per month. Respondent's income is shown (in answers to interrogatories) to be about $40.00 per week, although it had been as much as $220.00 per month (letter from City Clerk of Albertville, filed as stipulated). It appears to the Register that at the present time no change is needed in the amount being $20.00 per month as agreed on by the parties during the month of February 1964.'

Exceptions to the Register's Report were filed by the appellant, various and appropriate grounds being assigned in support of the exceptions.

After a hearing upon the exceptions, the court entered an order overruling the exceptions and confirming the Register's Report, the court writing:

'The evidence in this case was heard orally by the register. Where the Register's...

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