Osborne v. Osborne
| Decision Date | 11 February 1976 |
| Citation | 326 So.2d 766,57 Ala.App. 204 |
| Parties | Patricia Ann OSBORNE v. George E. OSBORNE. Civ. 633. |
| Court | Alabama Court of Civil Appeals |
James L. Shores, Jr., Birmingham, for appellant-plaintiff.
James N. Brown, III, Birmingham, for appellee-defendant.
The parties were divorced in 1966. Custody of two children with support of $130.00 per month was awarded to the plaintiff. Each party remarried. The defendant adopted the daughter of his second wife. The second husband of plaintiff is deceased. She and defendant's children each receive $82.60 per month in social security benefits from the second husband's account. Defendant has had little contact with his children and has never paid support as ordered in the divorce decree.
In July, 1974, petition was filed by plaintiff seeking determination of amount due in support and an order of contempt against defendant. The trial court found the sum due and unpaid to be $12,220.00. Defendant was not found in contempt, but was ordered to pay the amount due in payments of $100.00 per month. The court then modified the former decree by lowering future support payments to $50.00 per month.
Plaintiff presents three issues on appeal: (1) Interest should have been granted on the past-due support. (2) The court had no authority to permit payment in installments. (3) There were no changed circumstances supporting the reduction in support payments. We will discuss the issues presented in order.
It has often been stated by the Supreme Court of Alabama that accrued installments of alimony and child support are not subject to change. Scott v. Scott, 265 Ala. 208, 90 So.2d 813; Hall v. Hall, 280 Ala. 275, 192 So.2d 727. Such installments become final judgments as of the date due and may be collected as other judgments. Armstrong v. Green, 260 Ala. 39, 68 So.2d 834; Wood v. Wood, 275 Ala. 305, 154 So.2d 661. It is the law that judgments for the payment of money bear interest from the date of rendition. Title 9, Section 63, Code of Alabama (1940). Fuller v. Martin, 41 Ala.App. 160, 125 So.2d 4. If installments for support become final judgments as of the date they become due, as stated by the above citations, it follows that such judgments would bear interest from due date. We have not been cited to any divorce case in this state which has decided this issue. However, our research discloses the following from the case of Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825:
(Emphasis added.)
We find the holding of Rochelle dispositive of the issue of whether interest should have been added in this case. Therefore, the court erred in not determining interest due according to the formula of Rochelle.
Our study of the second issue presented has raised some apparent inconsistencies in the case law of this state. Alabama through expressions in cases beginning with Epps v. Epps, 218 Ala. 667, 120 So. 150, has followed the rule that there is no power in the court to modify decrees for installment payment of alimony and support retrospectively. As previously stated herein, installments become final judgments as they are due, and may be collected as any other judgment, Armstrong v. Green, supra, yet there are appellate decisions approving payment of such 'judgments' themselves in installments. Armstrong v. Green, supra; Bright v. Bright, 275 Ala. 473, 156 So.2d 158; Evans v. Evans, 264 Ala. 2, 84 So.2d 337. In the instant case the court found the total of 'final judgments' to be $12,220.00, yet directed that defendant pay such judgments in payments of $100.00 per month. Such direction is $30.00 per month less than the installments through which the judgments accrued. After the addition of the accrued interest as we have herein determined, two-thirds of such payments will likely be interest and only one-third will be applied to principal. It follows that it will be impossible for defendant to pay the accrued judgment and interest at the rate of $100.00 per month during a normal lifetime.
To approve such payments is to effectively modify the original decree retrospectively. Contrary to the prohibition stated in Armstrong v. Green, supra, payment of such 'judgments' in installments is inconsistent with their being 'final judgments and collectible as other judgments.' This is the inconsistency in the cases we previously referred to above. We know of no other judgment upon which execution may be prevented by direction of payment in installments.
We comprehend that a contempt of court may be purged by an order of payment of a sum upon past-due installments, but such order...
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..."Under Alabama law, child-support payment `installments become final judgments as of the date due.' Osborne v. Osborne, 57 Ala.App. 204, 206, 326 So.2d 766, 767 (Ala.Civ.App.1976). Because `judgments for the payment of money bear interest from the date of rendition' `it follows that such [c......
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