Kilby v. Kilby
| Decision Date | 26 November 1986 |
| Citation | 500 So.2d 33 |
| Parties | Dallas Ray KILBY v. Patricia Sue KILBY. Civ. 5463. |
| Court | Alabama Court of Civil Appeals |
Thomas M. Semmes, Anniston, for appellant.
Angela P. Bowers of Legal Services Corporation of Alabama, Inc., Anniston, for appellee.
The trial court modified child support payments by increasing them. The husband appealed. We affirm.
When the parties were divorced in November 1984, the wife was awarded the custody of the two minor children of the parties. The husband was ordered to provide child support of $400 per month and also to pay periodic alimony for one year to the wife at the rate of $200 each month. Additionally, if medical, dental, or other health benefits for the children were not available through the husband's military service, he was to pay for them personally. In lieu of a lump sum award of alimony, the husband was ordered to discharge all debts incurred during the marriage.
In March 1986, the wife sought a modification of child support because of alleged material changes in the circumstances of the parties, and, after an ore tenus trial before the trial court, a judgment was entered on May 22, 1986, whereby it was determined that there has been a material change of circumstances and that the husband had consistently failed to abide by the alimony and support judgments of the trial court, except when forced to do so by garnishment or wage order. The trial court determined that the husband is responsible for orthodontic expenses for the children if they are not provided by a military establishment within a thirty-mile distance of the wife's residence. The husband's child support payments were increased to $600 per month, beginning in June 1986 for seven months, and, in the event the husband is not further in arrears for any child support payments, his monthly payments shall reduce to $500 per month effective in January 1987. An amended wage order was also issued.
The husband was not present at the trial since he was in Germany, pursuant to military orders. Consequently, the wife was the only witness to testify.
Her monthly income since the divorce has consisted of child support of $400, her Veterans' Administration education check, which fluctuated between $395 and $510, and alimony of $200. Her Veterans' Administration benefits and alimony have both expired, with her only present income being the child support. She listed some of her monthly expenses and testified on cross-examination that the only regular monthly expense for the children to increase since the divorce was for clothing at the rate of $30 per month.
When they were divorced, the husband's net salary was $1,350 each month. Since that time he has been promoted from grade E-6 to E-7. At the conclusion of the wife's testimony, the husband's attorney submitted a pay voucher to the trial court as to the husband's income, and the trial court then stated that the husband is an E-7 with a gross salary of $2,198 and net pay of $1,631. Later, the trial court stated that it was assuming that the pay voucher was correct, and the husband's attorney responded, "That is what he gave me, Judge." That pay voucher was not formally introduced as an exhibit and is not included in the record as such.
The parties were originally jointly and severally liable for an indebtedness to Otasco for their purchase during the marriage of some appliances, which were later awarded to the wife by the divorce judgment. That liability was one of the debts which the husband was ordered to pay by the judgment of divorce in lieu of lump sum alimony. The husband received a discharge in bankruptcy, and Otasco was one of the listed creditors. Consequently, the creditor demanded of the wife that she either pay the debt or return the appliances to them. She paid the $669 balance of the Otasco account.
The ten-year-old daughter of the parties must have noncosmetic orthodontic treatment which is not locally available through military dental services. The total cost thereof will amount to $2,040. The husband vacillated as to his willingness to pay for it.
The modification of child support on account of changed circumstances rests within the judicial...
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Boatner v. Boatner
...discretion to modify a child support judgment by increasing it even though the mother might be benefited incidentally. Kilby v. Kilby, 500 So.2d 33 (Ala.Civ.App.1986); Simpkins v. Simpkins, 435 So.2d 753 (Ala.Civ.App.1983); Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App.1979). Here there......