Cox v. Cox

• Court: Alabama Court of Civil Appeals
• Writing for the Court: ROBERTSON
• Citation: Cox v. Cox, 591 So.2d 90 (Ala. Civ. App. 1991)
• Decision Date: 22 November 1991
• Parties: William R. COX v. Linda Bell COX. 2900493.

Page 90

591 So.2d 90

William R. COX v. Linda Bell COX.

2900493.

Court of Civil Appeals of Alabama.

Nov. 22, 1991.

Nancy S. Gaines of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.

Dinah P. Rhodes of Blankenship, Robinson & Rhodes, P.C., Huntsville, for appellee.

ROBERTSON, Presiding Judge.

The parties to this appeal, Linda Cox and William Cox, were divorced by order of the Madison County Circuit Court on March 3, 1989. Custody of the parties' minor daughter, now nine years of age, was awarded to the mother, Linda Cox. The father, William Cox, was ordered to pay alimony in the amount of $3,500 per month, child support in the amount of $1,500 per month and to maintain medical insurance for the benefit of the child and pay all necessary medical, dental, and psychological expenses not covered by insurance.

On June 15, 1990, the father filed a petition to modify the judgment of divorce. He alleged that the mother intended to move to Colorado and that the move would not be in the child's best interests. The father asserted, among other things, that because the child has cystic fibrosis, a change in residence from a city at sea level--Huntsville, Alabama, to a city above sea level--Colorado Springs, Colorado, would have a direct harmful effect upon the child's medical condition.

The mother answered and counterclaimed, inter alia, for an increase in child support, an order requiring the father to pay for private school in Colorado, and a modification of visitation.

Following a proceeding at which evidence was presented ore tenus, the trial court ordered, among other things, that the father's petition to prohibit the child from living in Colorado be denied and that the child support be increased to $4,500 per month, with the medical expense provisions to remain in full force and effect.

The parties' daughter suffers from the disease of cystic fibrosis, a fact that was known when the parties divorced. At the time of the divorce, both the mother and the father resided in Huntsville, Alabama. After discovering that the mother was planning to move with the daughter to Colorado, the father sought to prevent the daughter's residence from being changed. The father, who is a cardiologist, testified that the change to a higher altitude would be detrimental to his daughter's physical condition. However, specialists in the field of cystic fibrosis refuted the father's contention, and the trial court refused to restrict the child's residence.

Although the father maintains that he disagrees with that part of the judgment allowing the child to move, he only appeals from that part of the order increasing child support. He asserts that the trial court erred in modifying the child support so as to increase it by threefold and in failing to apply a decreasing ratio of child support to gross income, pursuant to Rule 32, Alabama Rules of Judicial Administration.

In the trial court's order, its findings concerning the increase in child support were that a substantial and material change in circumstances had occurred since the divorce "in that the plaintiff's [father's] income had increased from approximately $450,000 a year to $573,000 per year." The trial court then stated that it considered both this "material increase" in the father's income and the child's medical condition and concluded that the child support obligation of ...