Roberts v. Roberts

• Decision Date: 11 March 1981
• Citation: 395 So.2d 1035
• Parties: Ernest E. ROBERTS v. Jane P. ROBERTS. Civ. 2432.
• Court: Alabama Court of Civil Appeals

Page 1035

395 So.2d 1035

Ernest E. ROBERTS v. Jane P. ROBERTS.

Civ. 2432.

Court of Civil Appeals of Alabama.

March 11, 1981.

Richard L. Thiry, Mobile, for appellant.

Benjamin H. Kilborn and F. Grey Redditt, Jr., Mobile, for appellee.

WRIGHT, Presiding Judge.

This is a divorce case. The husband appeals from a judgment denying his petition to modify and awarding alimony arrearages and attorney's fees to the wife. We affirm.

The parties were divorced in August 1979, after twenty-four years of marriage. There was an agreement between the parties as to alimony and other matters. The agreement was incorporated in the judgment of divorce. In December 1979 the husband filed a petition to modify the judgment, contending a material change in circumstances. He alleged that his income had substantially decreased, that he had not received a ten percent raise in salary contemplated at the time of the divorce and that his wife had received a raise in her salary. He requested a termination of or decrease in alimony payments. The wife answered the petition and, by cross-petition, sought accrued but unpaid alimony, attorney's fees and a contempt citation against the husband.

After an ore tenus hearing the trial court entered judgment denying the husband's petition to modify and awarding the wife $1,500 in accrued alimony and $300 in attorney's fees. The husband's post-trial motion was denied. He appeals.

Although the husband's able counsel has, via brief, presented several issues to this court, there are only three determinative of this appeal.

The first issue is whether the trial court abused its discretion in refusing to modify the prior decree as to alimony and in finding the husband $1,500 in arrears in payment of such alimony.

Our well-established rule on appeal is that the trial court's judgment will be presumed correct where it hears the evidence ore tenus. 2 A Ala. Digest, Appeal & Error, Key Nos. 931(1), 1008.1(6). The modification of a prior decree for alimony, based upon changed circumstances of the parties, is a matter largely within the sound discretion of the trial court and the exercise of that discretion will be disturbed on appeal only if, after reviewing the evidence, this court finds such an abuse thereof as to make the judgment plainly and palpably wrong. Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979). The burden of proving a material change in circumstances sufficient to warrant a modification of a previous decree relating to periodic alimony is on the petitioner. McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977). When, as in this case, a provision for periodic alimony is based upon the agreement of the parties, that provision should not be modified without close scrutiny, especially where so short a time, here six months, separates the decree and the hearing for modification. Taylor v. Taylor, 369 So.2d 1240 (Ala.Civ.App.1978), cert. denied, 369 So.2d 1243 (Ala.1979).

Although the husband submits numerous contentions of a material change in circumstances, we consider the primary evidence of change to be a decrease in his income of $4,000 since the time of the decree. The husband possesses a doctorate in clinical psychology and is a licensed psychologist in Alabama. His primary source of income is salary as an associate professor of psychology at the University of South Alabama. This position, along with his $4,000 income as a private practitioner and monies derived from other sources, allowed him to enjoy an annual income of about $28,500 at the time of the divorce. At the hearing the husband...