O'Dell v. O'Dell

• Citation: 57 Ala.App. 185,326 So.2d 747
• Parties: Lloyd L. O'DELL, Jr. v. Juanita O'DELL. Civ. 663.
• Decision Date: 04 February 1976
• Court: Alabama Court of Civil Appeals

Page 747

326 So.2d 747

57 Ala.App. 185

Lloyd L. O'DELL, Jr. v. Juanita O'DELL.

Civ. 663.

Court of Civil Appeals of Alabama.

Feb. 4, 1976.

Jones, Arnold & Baddley, Birmingham, for appellant.

Denaburg, Schoel, Meyerson & Ogle and Rodney A. Max, Birmingham, for appellee.

BRADLEY, Judge.

This is an appeal from an order of the Circuit Court of Jefferson County, Tenth Judicial Circuit, denying a former husband's petition to discontinue alimony.

Appellant and appellee were divorced on May 5, 1972. Appellee was awarded $400.00 monthly alimony, to continue until such time as appellee remarried. On April 9, 1975 appellant filed this petition, requesting that the alimony be discontinued. The petition set forth as grounds for reduction an allegation that appellee had remarried on or before November 1974, and that appellee was currently living with a man who provided her support and maintenance. It is apparent that the remarriage referred to in the complaint was a common-law marriage appellant intended to prove existed between appellee and Olin Wilson, the man with whom appellee was alleged to be living.

Appellee answered, denying the allegations of the complaint and counterclaiming for $1,200 alimony overdue and unpaid.

The matter was heard ore tenus on June 24, 1975, and the trial court issued its decree denying the reduction of alimony and ordering appellant to pay to appellee $1,200 arrearage and $500 attorney's fees.

On appeal appellant argues that he is being compelled to pay alimony to support his former wife in idleness and immorality, and, furthermore, that his wife's cohabitation with Wilson amounts to a common-law marriage, automatically terminating alimony. We disagree and affirm the trial court.

The original determination of the amount of an allowance for alimony lies within the discretion of the trial court:

'There is no fixed rule for the determination of the amount of alimony. The amount to be awarded depends upon all the relevant circumstances, in the light of which it must be just and reasonable. (Citation omitted.) These elements are not susceptible of proper enumeration since the court in the exercise of its discretion may and should select or emphasize certain ones appropriate to the facts of the particular case, and since regardless of how exhaustive a list of such factors may be additional ones are constantly making their appearance. (Citation omitted.)' Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89.

However, where a decree has set an allowance for alimony, the court will not modify the amount except upon proof of changed conditions which justify the modification, and then only to the extent of such changed conditions, Block v. Block, 281 Ala. 214, 201 So.2d 51. Although Garlington cautions us to remember that no enumeration can be exhaustive, there is an often-quoted recital of factors to be taken into account by the trial court in its inquiry relevant to modification of alimony:

'. . . (T)he court may and should inquire into the earning ability of the parties and their probable future prospects, their age, sex, health and station in life; the duration of the marriage, the conduct of the parties with particular reference to the cause of the divorce. . . .' Block v. Block, supra.

This list discloses two clearly discernible types of circumstances the trial court must concern itself with in exercising its discretion.

First, the court must not lose sight of certain unchanging factors such as the duation of the marriage, Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348. In a modification proceeding, the consideration of such factors is necessary to give the equity court a realistic perspective on the alimonial scheme of the former decree, and to limit its exercise of discretion to dimensions appropriate in light of the qualities of the marriage enjoyed by the parties prior to divorce. In virtually every case, however, these considerations would have been fully accounted for in the original decree, Hutton v. Hutton, supra.

On the other hand, the court must be principally concerned with the crucial issue of whether or not there has been a material change in the circumstances of the parties since the entry of the former decree. We are persuaded that the overwhelming weight of Alabama authority is to the effect that changed circumstances in this context means changed financial circumstances.

It has been held that the movant for modification has the burden of showing changed financial circumstances, Brumlow v. Brumlow, 282 Ala. 170, 209 So.2d 849; where there is an absence of evidence as to the financial status of one party, a modification decree cannot be supported, Block v. Block, supra; and where a movant's testimony admits that no financial change has occurred, refusal to modify is proper, Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797.

Furthermore, it has been reiterated in several cases that the changed health of a party--one of the traditionally enumerated factors for inquiry--justifies a modification in alimony only where it has resulted in an evidenced change in financial condition, Steele v. Steele, 277 Ala. 13, 166 So.2d 790; Whittle v. Whittle, 272 Ala. 32, 128 So.2d 92; Young v. Young, 262 Ala. 254, 78 So.2d 265. The sound reasoning of this line of cases is equally applicable to every factual condition which might be asserted as changed circumstances: the proper basis for the trial court's exercise of its discretion in alimony modification proceedings is the financial significance of the proofs brfore it, Morgan v. Morgan, 203 Ala. 516, 84 So. 754.

It is clear from the record that the primary thrust of appellant's case was not directed toward a financial analysis of the evidence. The direct financial evidence offered by appellant was minimal and controverted by appellee; appellee and Wilson admitted that on occasion...