Crawford v. Crawford
| Decision Date | 24 August 1977 |
| Citation | 349 So.2d 65 |
| Parties | Gene Ed CRAWFORD v. Susie Mae CRAWFORD. Civ. 1165. |
| Court | Alabama Court of Civil Appeals |
Louise I. Turner of Turner, Turner & Turner, Tuscaloosa, for appellant.
Sam L. Webb, Jr. of Callahan, Nichols & Webb, Tuscaloosa, for appellee.
This is an appeal by the appellant-husband from a decree of the Circuit Court of Tuscaloosa County.
The appellee-wife initiated the proceedings below by filing with the circuit court a petition to modify a previous decree of that court. Specifically, the wife asked for an increase in child support payments. The husband filed an answer to the wife's petition and additionally filed with the circuit court a petition seeking custody of the minor children.
After a hearing ore tenus, the trial court found that the children should remain with the mother; that the child support payments should be increased; and that the husband was in arrears on the previously awarded child support payments. The trial court ordered this arrearage to be paid at a specific rate per month. We note that the trial court made no specific finding that the husband was in contempt of court.
The husband, through able counsel, contends that since the arrearage was not made an issue by the pleadings, the trial court erred to reversal in its action regarding the past due child support payments. We do not agree and affirm.
This court has carefully reviewed the record and it is clear that the issue of whether there was an arrearage of child support payments was clearly before the trial court. Specifically, there was extensive testimony regarding the arrearage. The examination of witnesses regarding an arrearage was conducted not only by the wife but also by the learned trial judge. No objection was made by the husband regarding this testimony. In fact, it could be said that no objection was ever made by the husband regarding this aspect. However, some comment by the husband's attorney at the close of the trial could be viewed as an objection. This comment occurred after the trial court indicated that there was an arrearage.
The purpose of the Alabama Rules of Civil Procedure is to effect justice upon the merits of the claim and to renounce the technicality of procedure. See Board of Water and Sewer Commissioners of City of Mobile v. McDonald, 56 Ala.App. 426, 322 So.2d 717, cert. den. 295 Ala. 392, 322 So.2d 722 (1975).
Whether the issue of arrearage was a proper subject for the trial court to consider is dealt with directly by Rule 15(b), ARCP, which states, in part:
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if t...
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