McGugin v. McGugin
| Decision Date | 05 April 1978 |
| Citation | 357 So.2d 347 |
| Parties | Mildred L. McGUGIN v. John M. McGUGIN. Civ. 1291. |
| Court | Alabama Court of Civil Appeals |
Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellant.
No brief for appellee.
Appellant-wife was granted a divorce from her husband (appellee) by a decree of the Circuit Court of Mobile County on January 30, 1970. The decree of the circuit court ordered the husband to pay alimony and child support in the amount of $40 a week. The lot and the home in which the couple had resided remained in the joint ownership of the parties. However, the judgment of divorce specifically provided that the wife and the couple's only child, a daughter, were to retain possession of the home. The husband was directed to pay the monthly mortgage installments on this property. The decree continued by stating that "in the event the Complainant (wife) shall remarry, then the home place shall be sold, and after the costs incident to the sale and the mortgage balance thereon have been paid, the net balance shall be divided equally between the parties."
After the parties were divorced the husband frequently failed to provide either the support obligations or the mortgage payments which he had been directed to pay. As a result of this situation, the wife instituted several actions seeking to have the husband pay the amount in arrears. Each time the wife's action was successful and the husband was ordered to provide her with the sum of money necessary to cover the arrearage. However, in August of 1973 the wife filed a petition for rule nisi. In this petition the wife alleged that the husband was in arrears in regard to support payments and that his whereabouts was unknown. Service on the husband was obtained by publication and thereafter a hearing was held. At the termination of this hearing the trial court found the husband to be in arrears and awarded separate judgments to the wife; the first, which was for the sum of $294, represented arrearage on the monthly mortgage payments; the second judgment was for $854 and consisted of unpaid alimony and child support. Execution was subsequently issued on these judgments and the Mobile County sheriff was requested to levy on and sell the husband's interest in his former residence. Thereafter a sheriff's sale was held and the wife purchased her ex-husband's interest in the home for the amount of court costs.
After obtaining her former husband's interest in the home, the wife did not receive any further alimony or support payments from her husband. However, sometime in 1977 she learned that her ex-husband was living in Pensacola, Florida. Upon ascertaining his new place of residence, the wife filed a motion for a judgment of arrearage alleging that the husband owed her $8,000 in unpaid alimony and child support.
A hearing was subsequently held on the wife's motion and the husband appeared to present his defenses. At the hearing the wife testified that she had not received any child support or alimony payments from her husband since October 31, 1973. Moreover, she stated that her former husband had not provided any mortgage payments since the same date.
The husband admitted that he had not paid his wife alimony or child support since October of 1973. In addition, he stated that he had failed to make some payments before October of 1973. However, he also testified that he had purchased his daughter an $800 automobile and bought her some clothes valued at approximately $136. Finally, he said that he had given his daughter $500 so that she could travel to Germany.
During the hearing the husband apparently contended that he should receive credit for the money which he had given his daughter and that the amount demanded by his wife should be reduced accordingly. Moreover, he asserted that his daughter finished high school in 1974 and that shortly thereafter she had gotten married. Accordingly, the husband maintained that his daughter was no longer dependent upon his support as of the date of her marriage and that his wife was not entitled to any child support for the period after the marriage of their daughter.
On the basis of this and other testimony the circuit court specified that the $40 a week awarded to the wife as child support and alimony in the original divorce decree was to be allocated as follows: $20 per week as child support, and $20 per week as alimony. The court then found that as of November 1, 1974 the husband was not required to furnish his wife with money for the support of their daughter. Thus the circuit court concluded that the $40 a week originally awarded to the wife as alimony and child support should be reduced to $20 a week constituting alimony only and that the effective date of this reduction was November 1, 1974.
Furthermore, based on the evidence presented to the court, the trial judge found that in February of 1974 the sheriff had levied on the husband's interest in the parties' jointly owned property and that as a consequence of this action the wife had purchased the interest of her former husband in that property. The court then held that the husband's interest in the property ceased on February 19, 1974 and that as of that date the lot and home thereon belong wholly to the wife. Consequently, the circuit court ruled that the husband was not responsible for any mortgage payments due on the property after his interest was terminated by the judicial sale.
The court concluded its order by determining that the amount of arrearage for which the husband was liable was $2,024. From the findings and conclusions of the circuit court the wife appeals. (The husband did not file a brief in response to her appeal.)
In her brief to this court the wife contends that the judgment of the circuit court was in error for the following reasons: (1) the court's action in establishing future alimony payments violated her constitutional right to due process; (2) the court erroneously modified a property settlement; and (3) the court miscalculated the amount of arrearage to which the wife was entitled.
The first issue for our consideration concerns the wife's claim that her constitutional right to due process was violated because the circuit court determined the amount of alimony which she will receive in the future. Specifically, the wife submits that the failure of the circuit court to advise her that the issue of future alimony would be litigated deprived her of notice and denied her the opportunity to show facts which would have entitled her to a larger sum of alimony.
However, in view of the circumstances of this case we do not believe that the wife was unfairly denied an opportunity to present evidence which would have justified an increase in her future alimony income.
Our recent decision in Nabors v. Nabors, Ala.Civ.App., 354 So.2d 277 (1978) concerned the establishment of arrearages in regard to alimony and child support. In that case we were confronted with the question of whether a trial court could allocate a portion of a lump-sum alimony and child support award solely for child support. We said that the critical issue was not whether the trial court had modified past due installments of alimony and child support, but rather, whether the court, in ascertaining arrearages, had the authority to give the husband credits for the period after which the child became self-supporting, and on that basis reduce the amount in arrears with respect to the lump-sum alimony and child support award. As Nabors v. Nabors indicates, the father may receive a credit for child support made after the child has become self-supporting and his ability to receive this credit would be meaningless in a lump-sum alimony and child support award situation unless the trial court could allocate proportionate amounts as alimony and child support. Likewise, in the case at bar we conclude that the trial court was not, in actuality, modifying the alimony and child support award but was merely giving credit where credit was properly obtainable; that is, the court allocated a portion of the original "lump-sum" award as child support and then reduced the amount in arrears on that award by permitting the father to...
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