Brothers v. Vickers
| Decision Date | 04 November 1981 |
| Citation | 406 So.2d 955 |
| Parties | James Russell BROTHERS v. Patricia Ann Brothers VICKERS. Civ. 2824. |
| Court | Alabama Court of Civil Appeals |
John F. Porter, III of Livingston, Porter & Paulk, Scottsboro, for appellant.
John F. Proctor of Thomas & Proctor, Scottsboro, for appellee.
The parties were divorced by order of the Circuit Court of Jackson County on November 2, 1979. The final decree incorporated an agreement of the parties which provided for division of property, custody of the three minor children, and child support. Neither party appealed.
On September 26, 1980, the wife petitioned for a modification of the decree and the husband counterclaimed for certain modifications which he sought. The trial court, after an ore tenus hearing, denied the husband's requests. He brought this appeal alleging as follows: (1) The trial court erred in failing to award child support to the husband, who had custody of the parties' minor son; (2) The trial court abused its discretion in failing to require the wife to furnish the husband with the residence telephone number of the parties' two minor daughters who resided with the wife; and (3) The trial court erred in holding that property sought to be recovered by the husband was not subject to the terms of the separation agreement since it had already passed to the possession of the wife. We find no error or abuse of discretion and affirm.
The record viewed with the attendant presumption reveals the following facts:
The parties were married approximately twenty-two and one-half years and of four children born of the union, three were still minors at the time of the divorce. The wife filed for a divorce on the grounds of incompatibility. Pending the hearing on the original proceeding, the husband moved out of the parties' residence. In August 1979 the wife moved out of the residence and took with her certain personal and household items now the subject of dispute. The parties signed a separation agreement in October 1979, which was later incorporated into the final decree of divorce. The agreement provided, among other things, that the husband would have custody of the parties' son and pay $300 per month as child support to the wife who would have custody of the parties' two minor daughters. The husband was to have sole title to the farm and house which had been the residence of the parties, on condition that he pay the wife $12,000 for her interest with $3,000 upon execution of the agreement and $1,000 quarterly until the balance was paid. The wife was to receive certain enumerated items from the homeplace, leaving the remainder of its contents for the husband. The final decree of divorce was issued on November 2, 1979.
In September 1980, the wife, alleging a material change in circumstances, petitioned for a modification of the decree. She asked the court to require the husband's child support payments be paid into court and to require him to pay the entire balance due on her $12,000 interest in the homeplace. In addition, she wanted the husband to stop harassing her and the daughters. The husband counterclaimed requesting that the wife be made to pay child support to him for the benefit of the son in his custody. He also wanted the wife to furnish him with the daughters' telephone number as the wife had changed to an unlisted number. In defense of the wife's claim for past-due payments involving the homeplace, the husband alleged his willingness to comply as soon as the wife returned the items taken from the home prior to the signing of the agreement. The court's denial of the husband's requests on his counterclaim and his motion for a new trial precipitated this appeal.
The first issue presented is whether the trial court erred in failing to award child support to the husband for the benefit of the son in his custody. The husband contends in his brief that the equal protection clause of the fourteenth amendment dictates that when a mother and father have substantially equal financial positions, they should be required to contribute on an equal basis for the support of minor children in the other parent's custody. He relies, by analogy, on the opinions in Orr v. Orr, 374 So.2d 895 (Ala.Civ.App.), cert. denied, 374 So.2d 898 (Ala.1979), in regard to alimony, and Jenkins v. Jenkins, 376 So.2d 1099 (Ala.Civ.App.), cert. denied, 376 So.2d 1101 (Ala.1979), concerning child custody.
If the husband is in some way alleging the unconstitutionality of the child support provisions in the original decree, he raises the issue too late. The agreement and provisions he now challenges as contrary to law were merged into and became a part of the judgment of divorce on November 2, 1979. Marino v. Marino, 381 So.2d 89 (Ala.Civ.App.1980). The husband is legally barred, therefore, from challenging the validity of the decree and the provisions of the agreement incorporated therein, by his failure to timely appeal. Johnston v. Johnston, 374 So.2d 357 (Ala.Civ.App.1979). Furthermore, the agreement complained of was not only signed by both parties, but incorporated into the decree at their request. The husband is now estopped from challenging its validity. McKinley v. McKinley, 277 Ala. 471, 172 So.2d 35 (1965); Johnston, supra.
If it is the husband's contention that the trial court acted unconstitutionally in failing to award child support to him on the basis of a material change in circumstances, then the applicability of his equal protection argument need not be reached. Before the trial court considers how and by what standards a modification of child support will be determined, it must first find that a material change in circumstances exists.
In requesting a modification of the decree for child support, the husband has the burden of proving that there has been a material change in circumstances. Wise v. Wise, 396 So.2d 111 (Ala.Civ.App.1981). The former decree is conclusive of the interests of the child and the parents' rights so long as there has been no material change from their status at the time of the decree. Ex parte Boley, 392 So.2d 840 (Ala.1981). Modification of a prior decree for child support is a matter within the discretion of the trial court. Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979). A decree rendered upon an ore tenus hearing is presumed to be correct and will not be set aside unless it is unsupported by any credible evidence and is plainly and palpably wrong. Moore v. Moore, 396 So.2d 1074 (Ala.Civ.App.1981); Gorman v. Gorman, 392 So.2d 238 (Ala.Civ.App.1980).
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