Frazier v. Frazier

• Decision Date: 15 August 1984
• Citation: 455 So.2d 883
• Parties: Lois G. FRAZIER, Executrix of the Estate of Joe W. Frazier v. Nellie A. FRAZIER. Civ. 4249.
• Court: Alabama Court of Civil Appeals

Page 883

455 So.2d 883

Lois G. FRAZIER, Executrix of the Estate of Joe W. Frazier v. Nellie A. FRAZIER.

Civ. 4249.

Court of Civil Appeals of Alabama.

Aug. 15, 1984.

Jake B. Mathews, Jr. of Merrill, Merrill, Mathews & Allen, Anniston, for appellant.

Patrick P. Hughes, Anniston, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

This is post-divorce periodic alimony litigation.

The 1968 divorce decree ratified and confirmed an agreement of the parties whereby Mr. Frazier agreed to pay to Mrs. Frazier as periodic alimony the weekly amount of fifteen dollars, which was to be increased to twenty-five dollars a week in 1973. Social Security benefits were not mentioned in either the agreement or the decree.

Mr. Frazier was current in his alimony payments when he reached the age of sixty-five. At that time he was required to retire by his employer because of age. Thereafter, he drew his Social Security from the federal government together with $101 as monthly retirement from his employer. In September 1974, Mrs. Frazier commenced receiving Social Security benefits through Mr. Frazier's Social Security account at the rate of $111.30 per month. Her monthly check by December 1983 had gradually increased to $266 due to periodic amendments to the Social Security Act.

Mr. Frazier made no alimony payments to Mrs. Frazier after September 1974. On November 15, 1974, Mrs. Frazier's attorney wrote to Mr. Frazier concerning payment of his alimony arrearage since September. Mr. Frazier testified that he promptly went to Mrs. Frazier's attorney's office and explained and discussed his recent retirement and the parties' receipt of, or entitlement to, Social Security. When Mr. Frazier left that office, he was under the definite impression that, if that present situation was not satisfactory, the attorney would notify him. Nine years passed and he heard nothing about alimony from either the attorney or Mrs. Frazier.

In October 1983, Mrs. Frazier filed her petition to place Mr. Frazier in contempt of court for his failure to pay alimony since September 1974. Mr. Frazier's answer included a defense that he was entitled to credit against the alimony arrearage for the Social Security payments which had been paid to Mrs. Frazier. After an ore tenus trial on December 15, 1983, a judgment was rendered which ascertained that Mr. Frazier should have made the alimony payments, and it was further decided that the fact that Mrs. Frazier received Social Security benefits had no bearing upon his alimony obligation. A judgment was rendered against Mr. Frazier for $11,975.

Since Mr. Frazier died three days after the trial, his executrix has been substituted as a party in his stead. The executrix perfected this appeal. The primary issue is whether the trial court erred in refusing to give Mr. Frazier credit against his periodic alimony arrearage for the Social Security payments which were received by Mrs. Frazier through Mr. Frazier's Social Security account.

Periodic alimony is a debt which becomes a final monetary judgment as to past due installments. Andrews v. City National Bank of Birmingham, 349 So.2d 1 (Ala.1977). However, it was held in a child support case that an action for the collection of past due installments may be defended against by pleading and proof of a defense of payment or discharge by some means other than those expressed directly by the decree, and if "the sum directed to be paid by the father is paid by the government through social security benefits derived from the account of the father, the purpose of the order has been accomplished. The father is entitled to be credited with such payments against his liability under...