Northcutt v. Cleveland
| Decision Date | 16 January 1985 |
| Citation | 464 So.2d 112 |
| Parties | Michael G. NORTHCUTT v. Helen Northcutt CLEVELAND. Civ. 4537. |
| Court | Alabama Court of Civil Appeals |
William A. Robinson and Sandra K. Vinik of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant.
Mary Lee Stapp and Lois Brasfield, Asst. Attys. Gen., for appellee.
This is an action brought by the mother of two minor children residing in the state of Georgia, under the Uniform Reciprocal Enforcement of Support Act (URESA), against the father, a resident of Alabama.
The Family Court of Jefferson County entered a judgment against the father and ordered payment of support in the amount of $200 per month per child. The father through able counsel, appeals and we affirm.
The father contends that an action brought pursuant to URESA was not appropriate, that the URESA petition should not have been entered into evidence, that venue is not proper in Jefferson County, and that the trial court abused its discretion in the amount of child support payments.
The facts in pertinent part are that the mother and father were married in May of 1969. The father adopted the mother's two children from a previous marriage. Within two years the parties were divorced, and later the mother and children moved to Georgia.
Under the original divorce decree, the mother was given the complete care, custody, and control of the children, and the father was not ordered to make any support payments.
Eleven years after the divorce, the mother initiated an action under the Uniform Reciprocal Enforcement of Support Act, seeking to impose a child support obligation on the father.
As stated, after trial the court ordered the father to pay support to the children, who were at the time of trial eighteen years eleven months old and seventeen years five months old, in an amount of $200 per month per child.
At this point, we note the father alludes to the prospect that this court may not have appellate jurisdiction of this case. We believe that under Rule 28, Alabama Rules of Juvenile Procedure, and in accordance with Wright v. Montgomery County Department of Pensions and Security, 423 So.2d 256 (Ala.Civ.App.1982), appellate jurisdiction is proper in this court.
The father contends that the URESA action was not a proper action in this case because there was no duty of support and that a modification proceeding should have been initiated in order to gain support payments from the father.
We have stated that there is always a duty of support by a parent even when the divorce decree gives custody to the mother and does not order support from the father. The right to support is inherent and it cannot be waived even by agreement. Willis v. Levesque, 402 So.2d 1003 (Ala.Civ.App.1981).
The purpose of URESA is to improve and extend the enforcement of duties of support and to make the support laws of states that adopt the act uniform. Ex parte O'Neill, 420 So.2d 264 (Ala.1982).
Under Alabama's URESA, section 30-4-81, Ala.Code (1975), the duty of support is defined as that "imposed or imposable by law or by any court order, decree or adjudgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial separation, separate maintenance or otherwise." (Emphasis added.)
In Armstrong v. Sparks, 360 So.2d 1012 (Ala.Civ.App.1978), this court stated that if the original divorce decree makes no provision for the support of a child, the proof of changed circumstance that is required in a modification proceeding is not relevant because there is nothing to modify. Thus, a modification proceeding is not appropriate and proof of changed circumstances is not required.
Here, there was no provision for the support of the children by the father in the original divorce decree and, therefore, nothing to modify. Because the father had adopted the children, under Alabama law, as a parent, the inherent duty to support is always imposable, and the URESA action was properly initiated.
We further note the following found in Willis v. Levesque, 402 So.2d 1003, 1004 (Ala.Civ.App.1981):
Since this is not a modification proceeding and the remedies are "in addition to" those given and not meant to "supersede" the original divorce decree, it clearly appears that the URESA action was proper.
The father next contends that the trial court erred in admitting the URESA petition into evidence because it contained inaccuracies which the father denied.
In O'Hara v. Floyd, 47 Ala.App. 619, 622, 259 So.2d 673, 675 (Ala.Civ.App.1972), in a URESA action, this court stated the following:
Here, the father denied the allegations of the petition, and the court ordered the mother to submit to a deposition concerning the matters set forth in the petition. Documents were also ordered to be produced.
The deposition was taken in which the father...
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Ex parte Tabor
...decree gives custody to the mother and does not order support from the father.'" 634 So.2d at 542, quoting Northcutt v. Cleveland, 464 So.2d 112, 114 (Ala.Civ.App. 1985). This right was called "fundamental" and "inherent" and, as discussed in the main opinion, could not be waived, even by t......
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Harris v. Mitchell
...of the interests of her mother. In addition to an inherent right to continuing support from her father, see Northcutt v. Cleveland, 464 So.2d 112 (Ala.Civ.App.1985), [the child's] right to inherit from her natural father through intestate succession will be established by a judicial determi......
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Christopher v. Christopher, 2111039.
...decree gives custody to the mother and does not order support from the father.” ’ 634 So.2d at 542, quoting Northcutt v. Cleveland, 464 So.2d 112, 114 (Ala.Civ.App.1985). This right was called ‘fundamental’ and ‘inherent’ and, as discussed in the main opinion, could not be waived, even by t......
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Ex parte University of South Alabama
...State, 504 So.2d 282 (Ala.Civ.App.1986). The right of support is inherent and cannot be waived, even by agreement. Northcutt v. Cleveland, 464 So.2d 112 (Ala.Civ.App.1985); Willis v. LeVesque, 402 So.2d 1003 It is well established in this state that a father has a legal and moral duty to su......