Butler v. King
| Decision Date | 31 August 1983 |
| Citation | 437 So.2d 1300 |
| Parties | Sandy King BUTLER v. Larry C. KING. Civ. 3777. |
| Court | Alabama Court of Civil Appeals |
Stanley E. Munsey, Tuscumbia, for appellant.
Jerry M. Vanderhoef, Tuscumbia, for appellee.
This is an appeal of the modification of a divorce decree.
The parties, former husband and wife, were divorced in 1979. The decree ordered the husband to pay $450 per month in child support ($225 per month for each of his two minor children), a pro-rata portion of the payments to be discontinued upon each child's nineteenth birthday or emancipation. In return, he was awarded reasonable visitation rights, including visitation for the entire month of July of each year.
After almost three years of disputes over custody and visitation rights and one earlier modification of the decree, the trial court granted the husband's petition for modification, reducing his support payments to $400 per month ($200 per child) and allowing him two additional weeks of summer visitation tangent to those already provided.
The wife's motion for new trial was denied. She appealed here. We reversed based on the trial court's failure to grant a hearing and remanded with instructions for a hearing to be conducted, 429 So.2d 1076 (Ala.Civ.App.). After a hearing on the motion, it was again denied. Again, she appeals here, asserting four errors: (1) that the petition to modify was not supported by a showing of a material change in circumstances; (2) that the modifications granted were not prayed for and, thus, improperly given; (3) that the trial court improperly made a comparison between her and her ex-husband's incomes; and (4) that the trial court erred in not granting a new trial.
A trial court may, in its discretion, modify an original award for alimony or support in a divorce decree. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967). However, a modification may only be granted upon the showing of a material change in circumstances, the burden of establishing such being on the moving party. Taylor v. Taylor, 418 So.2d 148 (Ala.Civ.App.1982). The determination of whether a modification should be granted is solely within the discretion of the trial court. Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979). Where, as here, a modification is rendered upon an ore tenus hearing, the findings of the trial court are presumed correct and will only be set aside on appeal if unsupported by any credible evidence so as to be plainly and palpably wrong. Brothers v. Vickers, 406 So.2d 955 (Ala.Civ.App.1981).
This presumption of correctness also applies to the trial court's determination of visitation rights, which must be determined on a case-by-case basis, depending on the particular facts and personalities involved, Skipper, supra 195 So.2d at 799, keeping in mind the best interest and welfare of the children involved. Brothers, supra 406 So.2d at 958; Green v. Green, 47 Ala.App. 171, 252 So.2d 97 (1971). The trial court has broad discretion in such matters. Crane v. Crane, 392 So.2d 242 (Ala.Civ.App.1980).
The record reveals that the trial court considered several factors in granting the modification, including the remarriage of both parties. Although this alone is not grounds for modification, Mencer v. Mencer, 277 Ala. 679, 174 So.2d 319 (1965), it may properly be considered as a factor. Wise v. Wise, 396 So.2d 111 (Ala.Civ.App.1981). The trial court also properly considered other factors, including the husband's recent loss of military housing allowance, expenses incurred while the children were visiting him, his expenses in traveling from Kentucky to Alabama to exercise his visitation rights, and his impending transfer to Europe. We cannot say that these considerations evidence a clear abuse of discretion or that the modification granted was plainly or palpably wrong. Therefore, we find sufficient evidence to support the decision of the trial court.
Extension of the father's summer visitation privileges was proper even though he made no specific prayer for the extension in his petition. Rules 15(b), 54(c), 61, A.R.Civ.P., permit the trial court...
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