Forlini v. Forlini
| Decision Date | 09 November 1983 |
| Citation | 455 So.2d 855 |
| Parties | John D. FORLINI v. Alice C. FORLINI. Civ. 3803. |
| Court | Alabama Court of Civil Appeals |
William H. Harris of Harris & Molloy, Mobile, for appellant.
Robert H. Smith of Collins, Galloway & Smith, Mobile, for appellee.
The appellant John D. Forlini (father) and Alice Forlini Parsons (mother) were divorced in June 1978. The parties had four minor sons at the time of the divorce. The original divorce decree ordered the father to pay $980 per month in child support.
Because the sole issue raised on appeal deals with the father's ability to pay child support and the amount he is able to pay, the evidence as to his income since the divorce may be summarized as follows:
Net Income Taxable
Year Gross Income After Losses Income
---------- ------------ ------------ ---------
1978 $76,697. $66,419. $51,266
1979 75,719 54,111 48,812
1980 78,430 65,224 59,821
1981 57,061. 42,888 37,823
1982 20,000 * *
1983 (projected)
*Tax return not filed as of last hearing
When the parties were divorced the father was employed at Acuray where he continued to work through 1979. During 1980 and 1981 he was employed by Measurex. Both jobs were in the process control industry. In January 1982 his job with Measurex ended, and he experienced a marked decrease in his income and earning capacity. The industry was saturated and his income dried up. The father decided to change professions to the computer industry. He has since gone to school at nights and on weekends as part of his efforts in changing careers.
From February 1982 until July 1982 he attempted to set up his own company, Enerex, Inc., which ultimately failed, generating no sales and producing no income. For six months he lived off of his savings and those were depleted. In July 1982 the father worked for Olensky Brothers, a personal computer store, and in 1983 he changed jobs to work for another personal computer store.
One year after the divorce decree was entered, the court reduced the child support payments from $980 to $700 upon the father's motion for modification. In February 1982 he again moved the court for modification to reduce child support payments on the basis of a decreased income and earning capacity. A June 1982 decree reset the amount of child support at $980, and a July 1982 decree provided that he could pay $500 per month with the remainder of $480 arrearage accruing. He then filed a motion to modify in October 1982. The court denied his motion. The father appealed.
The only issue on appeal is whether the trial court abused its discretion by setting an amount of child support excessive of the father's ability to pay.
The Alabama Supreme Court has recognized that a divorced father must support his children reasonably according to his means. Boswell v. Boswell, 280 Ala. 53, 189 So.2d 854 (1966). A divorced father's duty to contribute to the maintenance of his minor children is not limited to his wages but may also include income derived from property holdings and any other earning capacity. Waldrop v. Waldrop, 222 Ala. 625, 134 So. 1 (1931). The determination of the amount of child support rests within the sound discretion of the trial court. Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980).
Id. at 841-42 quoting Pruett v. Pruett, 333 So.2d 580, 582 (Ala.Civ.App.1976).
Modification of a prior child support award will be made only on proof of changed circumstances, and the burden of proof rests on the one seeking the modification. Wise v. Wise, 396 So.2d 111 (Ala.Civ.App.1981). In this case the burden was on the father. He contends that he does not have the financial resources to make payments as ordered and has therefore proven a material change in circumstances. The mother, on the other hand, claims he has failed to meet his burden of proof and that he does have adequate resources to make payments as ordered by the court.
It is not our prerogative to substitute our judgment for that of the trial court, Owens v. Owens, 412 So.2d 820, 821 (Ala.Civ.App.1982); nevertheless, we must examine the evidence to see whether it supports the judgment. Alford v. Alford, 368 So.2d 295, 298 (Ala.Civ.App.1979). We have examined the evidence and find that the order for a monthly payment of $980 is not supported by it.
At the time of the last hearing on this case, the father's income had diminished significantly. He had a net salary of $1,200 per month. His other income was from real estate notes and rentals in the amount of $1,040 per month, which combined with his net salary totaled $2,240 per month.
At that time his current monthly living expenses for food, utilities, transportation, clothing and debts (according to undisputed testimony) were conservatively estimated to be $900 per month for him and his present wife and their daughter. Payment for the mortgage on his home and the two rental properties alone total $1,351.85. If he pays $980 per month child support, he could not pay the mortgages and meet his necessary living expenses. He had been unable to sell the rental property which provided $420 of his monthly income. Moreover, he testified that he had been able to meet his living expenses only by borrowing heavily and repeatedly, with his wife borrowing over $10,000 in the last year.
He has no money in any savings or other bank accounts...
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