Mims v. Mims
| Decision Date | 16 November 1983 |
| Citation | 442 So.2d 102 |
| Parties | Emmitte Edwin MIMS v. Miriam Louise MIMS. Civ. 3794. |
| Court | Alabama Court of Civil Appeals |
Frank W. Riggs, Montgomery, for appellant.
G. Houston Howard, II of Howard, Dunn & Howard, Wetumpka, for appellee.
This is a periodic alimony modification and contempt proceeding.
The divorce judgment was rendered on February 5, 1980, and it required Mr. Mims to pay to Mrs. Mims as periodic alimony $250 each month. At that time, Mr. Mims was paid disability benefits by both the Veterans Administration and the Social Security Administration. His social security payments were discontinued and he received from them his last monthly check of $456 in December 1982. Mr. Mims contested that discontinuance but the contest has not been decided. The Veterans Administration's tax-free 100% medical disability payment presently amounts to $1,278 each month. Admittedly, Mr. Mims did not make any of the seven monthly alimony payments due in October 1982 through April 1983.
Mr. Mims has remarried and in excess of one-third of his itemized expenses are payments or expenses of his present wife, who has no income of her own. The mental and physical health of Mr. Mims is poor and he is not able to work.
Mrs. Mims is employed as a hospital supply clerk and earns $509 a month as take-home pay. Her monthly itemized expenses total $820. The children, who are all adults, assist her in making financial ends meet.
ModificationMr. Mims sought a modification in, or elimination of, periodic alimony. The trial court denied his petition.
The ore tenus rule applies and the judgment of the trial court is presumed to be correct. Whether a periodic alimony judgment should be modified because of the parties' changed circumstances reposes within the judicial discretion of the trial court and its decision will not be disturbed on appeal unless the judgment is palpably wrong. While Mr. Mims had a reduction in income received of $456 a month, we cannot say that the trial court was palpably wrong or abused its discretion in denying his modification petition. Jeffcoat v. Jeffcoat, 423 So.2d 888 (Ala.Civ.App.1982).
Mrs. Mims's petition requested that Mr. Mims be held in contempt of court for his failure to pay alimony as ordered. In prior proceedings, Mr. Mims had already been adjudicated to be in contempt of court for arrearages of alimony which are not of concern in the present litigation. The trial court again found Mr. Mims to be in contempt of court. The judgment expressly found that, although Mr. Mims possessed the means to make the alimony payments, he willfully and contemptuously failed or refused to pay it and that he was delinquent in his payments in the amount of $1,750. The trial court allowed Mr. Mims to purge himself of such contempt by making payments of $100 each month until the ascertained arrearage is paid in full.
We treat Mr. Mims's appeal of the contempt matter as being certiorari proceedings.
In contempt cases the rule of review is restricted to questions of law and, if there is any legal evidence which supports the holding of the trial court, those factual findings are conclusive on appeal. Smith v. Smith, 380 So.2d 897 (Ala.Civ.App.1980). Here, the necessary supportive evidence appears in the record.
However, Mr. Mims argues that, since his only present income is a disability benefit from the Veterans Administration, contempt proceedings are improper because section 3101 of title 38 of the United States Code provides that those benefits are exempt from the claims of creditors. That code section states the following:
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Rose v. Rose
...asserted that § 3101(a), its predecessors, and similar statutes do not make the support obligation unenforceable. Mims v. Mims, 442 So.2d 102, 103-104 (Ala.Civ.App.1983); Smolin v. First Fidelity Savings & Loan Assn., 238 Md. 386, 392-394, 209 A.2d 546, 549-550 (1965); Dillard v. Dillard, 3......
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Holmes v. Holmes
...of spousal support awarded to the wife. See Parker v. Parker, 335 Pa.Super. 348, 350-54, 484 A.2d 168, 169-70 (1984); Mims v. Mims, 442 So.2d 102, 103-04 (Ala.Civ.App.1983); see also Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987) (veterans' disability benefits may be used......
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Riley v. Riley
...and 42 U.S.C. § 662(f)(2) protecting those benefits from the claims of creditors. Repash v. Repash, supra, 528 A.2d 744; Mims v. Mims, 442 So.2d 102 (Ala.Civ.App.1983); Parker v. Parker, 335 Pa.Super. 348, 484 A.2d 168 (1984); Pyke v. Pyke, 212 Neb. 114, 321 N.W.2d 906 (1982); Ray v. Ray, 2......
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Ex parte Billeck
...held that a trial court may consider veteran's disability benefits as a source of income in an award of periodic alimony. Mims v. Mims, 442 So.2d 102 (Ala.Civ.App.1983); Lott v. Lott, 440 So.2d 1090 (Ala.Civ.App. 1983); and Pedigo v. Pedigo, 413 So.2d 1154 (Ala.Civ.App.1981), cert. quashed,......
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V.a. Payments and Family Support
...rule of law in the context of spousal support. Some of these are: Alabama: Nelms v. Nelms, 2012 Ala. Civ. App. LEXIS 54; Mims v. Mims, 442 So.2d 102 (Ala. Civ. App. 1983) Arkansas: Womack v. Womack, S.W.2d 958 (Ark. 1991); Murphy v. Murphy, 787 S.W.2d 684 (Ark. 1990) Colorado: In re Marriag......
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V.a. Payments and Family Support
...rule of law in the context of spousal support. Some of these are: * Alabama - Nelms v. Nelms, 2012 Ala. Civ. App. LEXIS 54; Mims v. Mims, 442 So.2d 102 (Ala. Civ. App. 1983) * Arkansas - Womack v. Womack, 307 Ark. 269, 818 S.W.2d 958 (1991); Murphy v. Murphy, 302 Ark. 157, 787 S.W.2d 684 (1......