Glenn v. Glenn
| Decision Date | 21 May 1993 |
| Citation | 626 So.2d 638 |
| Parties | Clark T. GLENN v. Leonna G. GLENN. 2910735. |
| Court | Alabama Court of Civil Appeals |
Dennis J. Knizley of Knizley & Powell, P.C., Mobile, for appellant.
Mavanee R. Bear, Mobile, for appellee.
The parties were divorced in August 1990. The judgment of divorce provided, inter alia, that Clark T. Glenn (husband) pay $800 per month as child support for the minor children of the parties, that the husband pay to Leonna G. Glenn (wife) $400 per month as periodic alimony, that the husband pay for the private school education of the minor children, and that the husband pay two mortgages owed on the homeplace. The background facts of this case are more fully set out in Glenn v. Glenn, 586 So.2d 927 (Ala.Civ.App.1991), wherein this court affirmed the trial court's judgment of divorce.
In August 1991 the husband filed a petition to modify, requesting the trial court to reduce his alimony payments, to reduce his child support payments, and to relieve him of the responsibility for the private school expenses of the children, which were approximately $330 per month.
The wife filed a cross motion for rule nisi, in which she alleged that the husband had failed and refused to pay the mortgage payments and had failed to pay the educational expenses of the minor children. Following an ore tenus proceeding, the trial court, on December 12, 1991, found that the husband was in contempt and ordered that he be incarcerated until he purged himself by paying all notes due on the homeplace and the outstanding educational expenses of the children. The trial court did not rule on the husband's petition to modify. On December 13, 1991, the husband was released from the county jail under a $1,000 cash bond.
In May 1992, the wife again filed a motion for rule nisi, and the case was assigned to another trial judge. Following another ore tenus proceeding, the trial court entered an order on August 21, 1992, which found that the husband was in contempt of the orders of the court, and the trial court granted the wife "a judgment in the amount of $14,267.69 reflecting past due payments ordered in the Judgment of Divorce." The trial court partially granted the husband's petition and modified the judgment of divorce "to eliminate the responsibility of the [husband] ... for the educational expenses of the children of the marriage including tuition, books and uniforms." The trial court ordered that all other provisions "of the judgment of divorce remain in full force and effect."
The husband appeals from the latter judgment, contending that the trial court abused its discretion by failing to modify the alimony and child support payments and by awarding a $14,267.69 judgment for arrearage. The husband contends that, because his income has decreased, it is impossible for him to pay these obligations and still support himself.
A recitation of the evidence before the trial court would serve no useful purpose in this case. The record testimony does reflect, however, that the husband had substantially the same earning capacity at the time of the hearing that he had at the time of the divorce. The law is concerned with one's ability to earn, as opposed to actual earnings, in determining whether a modification should be granted. Cox...
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