Hutton v. Hutton, 6 Div. 522

• Decision Date: 10 April 1969
• Docket Number: 6 Div. 522
• Citation: 222 So.2d 348,284 Ala. 91
• Parties: Lottie M. HUTTON v. Robert Derwood HUTTON.
• Court: Alabama Supreme Court

Page 348

222 So.2d 348

284 Ala. 91

Lottie M. HUTTON v. Robert Derwood HUTTON.

6 Div. 522.

Supreme Court of Alabama.

April 10, 1969.

Geo. S. Brown and Hogan, Wilder, Tarter & Wininger, Birmingham, for appellant.

Roderick M. MacLeod, Jr., and Pritchard, McCall & Jones, Birmingham, for appellee.

HARWOOD, Justice.

In September 1945, the appellant and appellee were married in Pensacola, Florida. The appellant was pregnant at the time of the marriage. After the marriage the appellant and appellee lived together about four days. The appellee, then a sergeant in the army, returned to his barracks at Fort Barancas, and shortly was sent by the army for duty in China. The appellant continued to live and work in Pensacola.

The appellee provided for an allotment of $60.00 per month of his army pay for the appellant.

The appellant testified that after about two years the appellee wrote her he wanted a divorce. The appellant wrote appellee she wanted to talk things over, but later 'agreed' to let appellee get a divorce.

On 15 April 1949, the appellee was awarded a decree of divorce by the Circuit Court of Jefferson County, the bill alleging that appellee had been a bona fide resident of Alabama for more than one year, and that appellant had voluntarily abandoned him. The bill also averred that one child was born as a result of the marriage.

The decree further provided that Robert Derwood Hutton, the complainant in the divorce proceedings 'shall pay as alimony and support for the minor child of the parties hereto, the agreed amount of Sixty ($60.00) per month hereafter, said payments to begin not later than April 15, 1949, payable on the first day of each month thereafter.'

In April 1967, the appellee here, and complainant in the divorce action, filed a petition to modify the decree of divorce of 15 April 1949, in reference to the alimony and support payments provided therein.

The petition, as grounds for modification of the alimony and support payments asserts:

'That subsequent to the date of the signing of the final decree in this cause on the 15th day of April, 1949, your petitioner has lived up to all of the mandates of the said decree, however, there has been a material change in the circumstances, in that, the minor child of the parties is now twenty one years of age.'

The appellant here, respondent in the divorce proceedings, filed an answer and counter petition. She admitted that the child of the parties has now reached twenty-one years of age. She further admitted that her former husband had complied with the terms of the divorce decree as to payments of the alimony and support payments.

The counter petition sets forth the financial condition of the counter petitioner. These allegations are the same as that established by the counter petitioner's evidence set out hereinafter.

The counter petition then prays that the divorce decree of 15 April 1949, be modified by increasing the award of alimony to $150.00. per month.

The appellant testified in the proceedings below that about three years prior to the hearing she purchased a home in Pensacola for $9,000. Her brother made a down payment of $250.00, and the monthly payments on the $9,000 purchase price are $67.00 per month which she pays.

A son by a former marriage and her daughter live with her. The son has a spastic condition and is unable to work. He draws $75.00 per month 'disability' and out of this pays her $20 to $30 per month for room and board. She has been doing some baby sitting, and earns about $12 per month from this source. However, most of her time is taken up with her daughter who is 'sickly.' 'I am not able to go out to work because I am not able to pay anyone to stay with her.' Mary J. Nelson, sister of the appellant, described the daughter's illness as being epilepsy.

Arthur Stromberg, a brother of appellant, and Mrs. Nelson, her sister, testified they assisted the appellant to the extent of their abilities by paying medical and drug bills for her, and buying groceries.

So far as shown by the record, the appellant's income consists of the $60.00 per month paid by appellee for alimony and child support, the $20 or $30 per month board paid by her son, $12 per month earned as a baby sitter, and whatever aid is given to her by her brother and sister.

The appellee's evidence shows that after the divorce he remarried and has two children by his second marriage. He draws $195.00 per month retirement pay from the army and has a job in Huntsville paying $200.00 per week. His total income now exceeds $12,000 per year. The appellee testified he has never seen his daughter.

After hearing the evidence the court entered a decree denying the counter petition for an increase in alimony payments, and modifying the divorce of 15 April 1949, by reducing the 'payments' under the terms of such decree to $30.00 per month, the decree noting 'the child of the parties has reached the age of twenty-one (21) years.'

Where support has been awarded for a minor child in a divorce proceedings, and the child reaches the age of 21 years, the obligation for support payments cease, even though the child is mentally or physically disabled. This is the rule of the common law, and being unchanged by statute, is the prevailing rule in this state. Murrah...