Davis v. Davis

• Court: Alabama Court of Civil Appeals
• Writing for the Court: BRADLEY
• Citation: Davis v. Davis, 518 So.2d 156 (Ala. Civ. App. 1987)
• Decision Date: 04 November 1987
• Parties: Ronnie Oliver DAVIS v. Sandra DAVIS. Civ. 5808-A.

Page 156

518 So.2d 156

Ronnie Oliver DAVIS v. Sandra DAVIS.

Civ. 5808-A.

Court of Civil Appeals of Alabama.

Nov. 4, 1987.

As Corrected on Denial of Rehearing

Dec. 9, 1987.

John M. Kennemer of Patton, McKelvey & Kennemer, Tuscumbia, for appellant.

William M. Bouldin of Guin, Bouldin & Alexander, Russellville, for appellee.

BRADLEY, Presiding Judge.

This is a consolidation of a modification appeal and a petition for writ of certiorari to review a contempt citation.

Appellant-petitioner (husband) and appellee-respondent (wife) were divorced on February 20, 1986. The divorce decree incorporated a written agreement entered into by the parties. On October 2, 1986 the husband petitioned the Circuit Court of Franklin County for a modification of the decree. An ore tenus hearing was conducted on November 12, 1986 and the court issued its order on November 17, 1986 denying the petition to modify. Husband filed a motion to alter, amend, or vacate and a motion for a new trial. These motions were overruled on January 13, 1987. Husband appeals, contending the trial court abused its discretion in failing to modify the decree based on changed circumstances. Later, the wife filed a petition to hold the husband in contempt for failure to pay the amounts due under the divorce decree. Hearings were held on December 30, 1986 and January 2, 1987. The court issued its order holding the husband in contempt on January 15, 1987. The posttrial motions were overruled. The husband then filed a petition for writ of certiorari in this court on May 15, 1987. A motion for consolidation of the appeal and the writ of certiorari was filed on September 15, 1987 and granted on September 16, 1987.

The pertinent facts are that on February 20, 1986 husband and wife were divorced and an agreement was incorporated into the divorce decree. The agreement provided that the husband would pay alimony and child support of $375 per week; he would pay the present and future college expenses for the two children of the marriage, one of whom was attending college at the time of the decree; he would pay the fees and tuition for the wife's college expenses; he would pay the outstanding debts of the marriage; he would purchase a woodburning fireplace for the wife's house; he would pay the hospital and medical insurance on the wife until completion of college or for five years; he would pay the health insurance and dental bills of the children until completion of college; he would pay for any eyeglasses needed by the younger child; and also he would be responsible for a tax debt of $187,000.

At the time of the decree, the older child was in college and the younger child was a senior in high school. The husband was the general manager of a mobile home manufacturing company. His take-home pay was $620 per week. In June his take-home pay increased to $1,080 per week. His employment was terminated in August when the company went out of business. Husband has not signed up for unemployment compensation, nor has he any reason to believe he would not be eligible. His testimony indicated that he and his father are attempting to start a siding business. However, he also testified that their business involved buying and selling things. The record is not clear, nor is the husband's testimony clear, as to the exact nature of the business. Husband claims he receives no income from this joint venture with his father.

Husband has remarried and depends upon his present wife for his living expenses. He also testified that he had failed to comply with the provisions of the divorce decree except for the payment of the weekly alimony and child support payments between February and September and the college expenses of the son and ex-wife. The insurance on the wife and children has not been maintained, the debts have not been paid, and the fireplace has not been purchased. A bankruptcy proceeding is pending in which the wife was made a party. The wife testified that she agreed to become a party upon the recommendation of the husband and his attorney. They told her that she could lose the house if she did not become a party to the proceedings. She has since attended the hearings on the pending bankruptcy but testimony showed that the husband has not attended. The tax debt of $187,000 has not been paid.

The husband was vague as to the type of business he is engaged in and there was testimony that he had been seen driving a truck for a salvage company. However, the record reveals that the salvage company does not have a record of husband's employment there. There was also testimony regarding corporate stock held by the husband, but no testimony was given at the modification hearing regarding its actual worth. The husband testified that he thought the stock was worthless.

The wife works two jobs and attends college at night. She is trying to maintain the household for her daughter and herself and also give financial help to the son in college. She testified that she earns $160 per week.

The first issue we will address is the trial court's denial of the petition for modification.

It is a well-settled principle of law in this state that modifications of child support and periodic alimony are within the sound discretion of the trial court. Roe v. Roe, 487 So.2d 1372 (Ala.Civ.App.1986). The court may grant a modification upon a showing of changed circumstances. Ebert v. Ebert, 469 So.2d 615 (Ala.Civ.App.1985).

"While there are many elements to consider in reaching that determination, one factor which has particular applicability to the present case is the rule of law that ability to earn, as opposed to actual earnings, is a proper factor to consider in deciding either an initial award of child support or periodic alimony or whether to terminate, increase, or reduce the amount of the award in modification...