Headley v. Headley

• Decision Date: 30 July 1964
• Docket Number: 6 Div. 27
• Citation: 277 Ala. 464,172 So.2d 29
• Parties: Dorothy HEADLEY v. J. C. HEADLEY.
• Court: Alabama Supreme Court

Page 29

172 So.2d 29

277 Ala. 464

Dorothy HEADLEY v. J. C. HEADLEY.

6 Div. 27.

Supreme Court of Alabama.

July 30, 1964.

Rehearing Denied March 11, 1965.

W. A. Stevenson, Birmingham, for appellant.

Jesse W. Davis, Bessemer, for appellee.

LIVINGSTON, Chief Justice.

On April 10, 1960, the Circuit Court of the Tenth Judicial Circuit, in Equity, Bessemer Division, rendered a decree of divorce in an action brought by Mrs. Dorothy Headley against J. C. Headley. In that decree, the custody of the two minor children of the parties, Brenda Headley, about 9 years old, and Terry Headley, about 5 years old, were given to Dorothy Headley, the mother. J. C. Headley, the father, was ordered to pay to the mother, for the support of said minors, the sum of $130 per month, the first payment to begin April 5, 1960, and to continue on the 5th day of each following month. These payments were not made as ordered.

Thereafter, there were numerous motions, counter motions, affidavits, garnishments, and orders made and entered in the circuit court, and in this Court, which we will not detail here because they are unnecessary to a decision of the matters before us on this appeal.

On June 6, 1963, J. C. Headley filed what he termined 'A Motion to Quash and Restrain and Enjoin' a certain garnishment proceeding 'and temporarily restraining and enjoining the said Dorothy Headley from issuing any garnishment until a final determination can be made as to whether or not there is an arrearage,' in the support payments. Dorothy Headley answered the motion, and after admitting certain formal allegations, in effect, denied the allegations of the motion, in other words, tendered the general issue. This motion was heard orally before Hon. E. L. Ball of the 10th Judicial Circuit, in Equity (Bessemer Div.), and on the 30th day of July 1963, the following decree was rendered.

'DECREE

'This cause coming on to be heard upon the motion of the Respondent to quash the garnishment heretofore issued out of the Clerk's office of this Court, and after hearing and considering the same, the Court makes the following finding of fact:

'1. That the total amount of accrued maintenance and support from the date of the decree in this cause of April 10, 1960 to the date of the reissuing of the garnishment in said cause in June, 1963 will be in the amount of $4875.00.

'2. That the Respondent is entitled to the following credits against the foregoing amount of $4875.00:

'(a) The sum of $1985.00 representing a period of seventeen months immediately succeeding the decree of April 10, 1960 because for that period by consent of the parties or with the Complainant's permission the child was in the complete custody of the Respondent and was totally supported by the Respondent during this period.

'(b) The sum of $129.03 by reason of a partial payment on a garnishment issued in this cause and answered on August 7, 1961.

'(b) The sum of $780.00 representing a period of six months in which the Complaint violated a material provision of the divorce decree in that she willingly secreted said child of said marriage in the state of Texas and denied the Respondent his reasonable right of visitation with the child; and at this time, even though the attorney of record for the Complainant had issued and had pending a garnishment against the wages of the Respondent, said attorney for the Complainant denied that he was the attorney of record for the Complainant and refused to accept service of a petition to modify the decree which said petition was filed by the attorney for the Respondent.

'(d) The further sum of $600.00 which by the uncontradicted evidence in the case was paid by check or in cash by the Respondent to the Complainant.

'(e) And further credit in the amount of $995.00 which without dispute was paid by the Respondent through the Juvenile and Domestic Court of Jefferson County, Bessemer Division.

'3. The above and foregoing credits as set forth in Paragraph 2 hereof are in the amount of $4489.03 and when deducted from the total accrued amount due of $4875.00 leaves a present balance due under the writ of garnishment the sum of $385.97.

'4. That the garnishment issued in this cause was unnecessary to effect the collection of the payments of support and maintenance and that said garnishment was improvidently sued out by the Complainant and that the Complainant ought to bear the costs of this proceedings.

'IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED BY THE COURT AS FOLLOWS:

'1. That the Clerk and Register be and is hereby directed to pay over to the Complainant the sum of $385.97 less the costs accrued in this proceeding.

'2. That the Clerk and Register be and is hereby directed to pay any such sums that he holds in excess of $385.97 to Mr. Jesse W. Davis, the attorney for Respondent in this cause.

'3. That the garnishee, Alabama By-Products Corporation, be and is hereby directed and ordered to pay into the Clerk and Register of this court the sum of $191.85 and the Clerk be and is directed to issue a release to said garnishee for all sums in excess of $191.85; upon payment by the garnishee of said sum of $191.85, garnishee is released from any further liability in said cause.

'Done this the 30th day of July, 1963.'

From above decree, this appeal was perfected.

The crux of the matter before the trial court and now before this Court, as tendered by the pleadings, is a determination of what amount, if any, is due and payable, at the time of the hearing below, under the terms of the original divorce decree, it never having been modified, although two petitions to modify were filed by the husband but subsequently dismissed by him.

We think the method used by the trial court in making this determination is entirely proper

The evidence clearly establishes, indeed the wife admits, that shortly after the decree of divorce was entered in this case, she went to her former husband and asked him to take the children because she was at that time somewhat mentally distrubed and in bad health. She asked the father to take charge of the children until she was better. The father took the two children to the home of their paternal grandparents, where he also resided; that for some 17 months he provided for their support and maintenance, although the father married again and changed residence once or twice. After about 17 months, the mother took the children and carried them to Texas, where she secreted them for another 6 or 7 months, and the father was unable to locate them. There is evidence that the trip to Texas was on the advice that the wife's then counsel. (The record indicates that the wife has changed counsel two or three times during the course of these proceedings. The record also indicates that the husband has changed counsel.) At the end of this period of time, she returned to Bessemer, Alabama, and ran a garnishment against the husband's employer, the Alabama By-Products Company, in order to collect the past-due payments for support and maintenance of the children. The garnishee's answer showed that J. C. Headley was employed by it, that it was indebted to him, and that on August 27, 1962, Hon. E. L. Ball, Circuit Judge, made the following ex parte order:

'The respondent be and is hereby directed to make all future payments for alimony and support in this cause through the Juvenile and Domestic Relations Court, Bessemer Division. It is further ordered that no future garnishment be issued by the clerk in this cause except by order of the court.'

This order was set aside by Judge Ball on the direction of this Court. We mention this order simply because the father did make some payments through the Juvenile and Domestic Relations Court. See Ex parte Headley, 275 Ala. 262, 154 So.2d 20.

In our recent case of Wood v. Wood, 275 Ala. 305, 154 So.2d 661, we said:

'Our cases clearly enunciate the rule that installment payments decreed in a divorce for support and education of the minor child of a marriage become final judgments as of the dates due and may be collected as other judgments. Armstrong v. Green, 260 Ala. 39 (Rehearing Op., p. 45), 68 So.2d 834, 839. And installments which mature before a petition to modify is filed are immune from change. Scott v. Scott, 265 Ala. 208, 90 So.2d 813, and cases cited. Such is the status of the accrued weekly payments during the minority of the child, while not self-supporting.'

See also Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147; Melvin v. Furr, 275 Ala. 428, 155 So.2d 863; Armstrong v. Green, 260 Ala. 39, 68 So.2d 834, and Whitt v. Whitt, Ala., 166 So.2d 413, 7 Div. 631, Sup. Court (Ms.)

The instant case is clearly distinguishable from the foregoing authorities. Here, there is ample evidence to support the finding of the trial court; that shortly after the divorce decree was entered and the care and custody of the two minors given to the mother, the mother, on account of her mental and physical condition, requested the father to take the care and custody of the children and support them. This, the father did for some 17 months, and until the mother came and got them and carried them away, and secreted them in Texas.

As was stated in Armstrong v. Green, supra:

'The weight of authority appears to be to the effect that proceedings to enforce a decree for the support and maintenance of a child are subject to any valid defense against the required payment. 27 C.J.S., Divorce, § 321, pages 1227-1228 [27B C.J.S. Divorce § 321(5), p. 650]. See 17 Am.Jur. p. 536 [17A Am.Jur., § 876, p. 65].'

Our research discloses no case in this jurisdiction with facts similar to the instant case.

In the case of M_____ (Plaintiff), Appellant, v. M_____ (Defendant), Respondent, No. 29899, 313 S.W.2d 209, 213 (Mo.), the St. Louis Court of Appeals, on similar facts, stated as follows:

'Whether the father is entitled to credit on the arrears of a child support judgment for payments made on behalf of the child...