Posey v. Posey

• Decision Date: 14 January 1994
• Citation: 634 So.2d 571
• Parties: William Charles POSEY, Jr. v. Rebecca N. POSEY. AV92000542.
• Court: Alabama Court of Civil Appeals

Page 571

634 So.2d 571

William Charles POSEY, Jr. v. Rebecca N. POSEY.

AV92000542.

Court of Civil Appeals of Alabama.

Jan. 14, 1994.

L. Stephen Wright, Jr. and Jesse P. Evans III of Najjar Denaburg, P.C., Birmingham, for appellant.

Stephen R. Arnold, Birmingham, for appellee.

THIGPEN, Judge.

This is a divorce modification case.

In February 1989, pursuant to a settlement agreement between William Carl Posey, Jr. (father) and Rebecca N. Posey (mother), the trial court entered a final judgment of divorce, which provided, inter alia, that the mother be awarded custody of the parties' two minor children, subject to the father's visitation, and that the father pay periodic alimony and child support. That judgment also provided for annual increases in the child support and alimony obligations through 1990. In August 1990, the trial court entered a modification order based upon an agreement of the parties, which, inter alia, reduced the father's obligations.

In June 1992, the father filed a second petition to modify the divorce judgment, alleging a material change in circumstances. The mother answered and filed a counter-petition for rule nisi, requesting that the father be held in contempt for failure to comply with the terms and conditions of the last judgment. She also requested an increase in periodic alimony. In April 1993, after ore tenus proceedings, the trial court found that the application of the child support guidelines would be inequitable and unjust, and it increased child support to $4,000 per month and alimony to $4,000 per month. The father appeals.

The father contends that the trial court abused its discretion in increasing the child support and periodic alimony awards.

At the outset, we are mindful that a trial court's judgment regarding matters of child support and alimony, following the presentation of ore tenus evidence, is presumed correct and will not be reversed on appeal absent abuse, unless the judgment is unsupported by the evidence or is plainly and palpably wrong. Stewart v. Kelly, 587 So.2d 384 (Ala.Civ.App.1991). A child support order may be modified only if there is a showing of a material change of circumstances that is substantial and continuing. Rule 32, Ala.R.Jud.Admin.; Dimoff v. Dimoff, 606 So.2d 159 (Ala.Civ.App.1992). Alimony may be modified when there has been a material change in the circumstances of the parties. Garthright v. Garthright, 456 So.2d 825 (Ala.Civ.App.1984).

In the case sub judice, both the child support and alimony obligations were originally determined, and later modified, by agreement of the parties. Although the most recent modification was a judicial determination following ore tenus proceedings, we find no evidence in the record to indicate that the children's needs or expenses have increased since the last child support determination. The only evidence presented concerns the financial conditions of the parties. Evidence of a father's greater salary, without consideration of the children's needs, is insufficient to support an increase in the child support obligation. Cox v. Cox, 591 So.2d 90 (Ala.Civ.App.1991); Whitfield v. Whitfield, 570 So.2d 700 (Ala.Civ.App.1990). A trial court's discretion regarding child support when the parent's income exceeds the uppermost level of the schedule found in Rule 32, Ala.R.Jud.Admin., is not unbridled. The support ordered "must relate to the reasonable and necessary needs of the child[ren]." Anonymous v. Anonymous, 617 So.2d 694, 696 (Ala.Civ.App.1993). There is absolutely no evidence in the record suggesting or relating to any material change in the needs, conditions, and circumstances of the children. Al...