Holliday v. Holliday

• Decision Date: 15 November 1991
• Citation: 590 So.2d 335
• Parties: Joseph T. HOLLIDAY v. Mitzi W. HOLLIDAY. 2900606.
• Court: Alabama Court of Civil Appeals

Page 335

590 So.2d 335

Joseph T. HOLLIDAY v. Mitzi W. HOLLIDAY.

2900606.

Court of Civil Appeals of Alabama.

Nov. 15, 1991.

Annette Brashier Crain of Davis & Crain, Tuscaloosa, for appellant.

Candice J. Shockley of Holliman, Shockley & Kelly, Bessemer, for appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

The parties were divorced in September 1989. The judgment of divorce incorporated a written agreement between the parties. The agreement gave the mother custody of the parties' minor daughter and provided that the father pay $275 per month child support. The father agreed to pay all the debts of the marriage.

Shortly after the decree was entered, the father filed a petition for voluntary bankruptcy. He was subsequently granted a discharge in bankruptcy of his debts.

Prior to the father's discharge in bankruptcy, two of the creditors advised the mother that she would be responsible for the debts of the marriage.

In July 1990 the mother filed a petition to modify seeking, among other things, to have the trial court increase the monthly child support payments. The mother's petition asserted that a material change in circumstances had occurred due to an increase in the child's needs, a decrease in her financial resources due to the assumption of the debts, and the father's enhanced ability to pay. After an ore tenus proceeding, the court found that there had been a sufficient change in circumstances to warrant modification. The court applied the child support guidelines and increased the support payments to $470 per month. It further ordered the father to pay the mother's attorney's fees in the amount of $1,500. The father appeals.

Initially, the father asserts that the trial court abused its discretion in ordering the increase in child support.

There was no court reporter at the hearing. Consequently, we have before us a Rule 10(d), Alabama Rules of Appellate Procedure, statement of the evidence.

In addition to evidence concerning the acquired debts, the statement provides the following facts. At the time of the hearing the mother's gross income was $1,083 per month. Her net income per month, including child support, was $911. Her monthly itemized expenses were $1,595. In addition to her full-time employment, she participates in Project Share--a program in which she volunteers four hours of community service in return for food. Her child's day care costs have increased by $40 per month. She and her child share a bedroom in her parents' home and she has had to borrow money from her parents to provide food and clothing for the child. She is repaying her parents at a rate of $40 per month.

The father's yearly gross income at the time of the divorce was $31,391. At the time of the hearing it had increased to $33,815. His monthly expenses amounted to $1,332. He does not have a car payment because his vehicle is supplied by his employer.

A prior child support award may be modified only on proof of changed circumstances, and the burden is on the party seeking the modification. Forlini v. Forlini, 455 So.2d 855 (Ala.Civ.App.1983). The modification of child support because of changed circumstances is a matter within the trial court's discretion. Its decision will not be disturbed unless there is a clear abuse of that discretion. Bass v. Bass, 475 So.2d 1196 (Ala.Civ.App.1985).

We find that there has been a change in circumstances since the parties entered into the original agreement. Contrary to the agreement, the wife was forced to incur debts of the marriage. There was further testimony that the child's expenses had increased, particularly the cost of day care. The mother testified that she could no longer meet her expenses and adequately provide...