Rowe v. Boley
| Decision Date | 04 June 1980 |
| Citation | 392 So.2d 838 |
| Parties | Dorothea Qualls Boley ROWE v. Ray M. BOLEY. Civ. 2219. |
| Court | Alabama Court of Civil Appeals |
George A. Moore, of Johnston, Johnston & Moore, Huntsville, for appellant.
Macon L. Weaver and Phillip B. Price, of Weaver & Price, Huntsville, for appellee.
This case involves proceedings filed by the plaintiff, the mother of three minor children, to modify a divorce judgment to require the defendant, the father of the children, to pay a greater amount of child support.
On September 1, 1970 the parties were divorced. The divorce decree approved an agreement of the parties whereby the defendant promised to pay to the plaintiff as child support $300 each month. In 1978 the plaintiff filed her petition requesting that the support payments for the three minor children be increased; and, after an evidentiary hearing, a special circuit judge on August 14, 1978 denied the petition for modification. No appeal was taken from this judgment.
In April 1979 the plaintiff filed another modification petition seeking additional child support. The evidence as to this matter was heard ore tenus before a different circuit judge who decided on November 21, 1979 that there had been no material change in the circumstances and conditions of the parties between August 14, 1978 and November 21, 1979. The petition was denied by judgment of the court. At the conclusion of the evidence, the then trial judge stated that he probably would have found that there had been a material change of circumstances had he tried the case in August 1978, but that he could not act as an appellate court as to the prior judgment of another circuit judge. He, therefore, restricted his decision timewise as to whether there had been a material change in the circumstances and conditions of the parties between August 14, 1978 and November 21, 1979. It was decided that the fact that the defendant, during said period, received a twelve and one-half percent gross salary raise was a slight change in the parties' circumstances, not a material change after deducting taxes from such increase.
The dispositive issue here is whether a trial court, in deciding if sufficient changed circumstances exist to warrant modification of a child support decree, is limited to a consideration of the changes that occurred since the last decree that considered the question of modification or whether the court is permitted to consider the changes that have occurred since the last decree awarding child support or actually modifying a support award.
In the instant case the trial court considered itself limited to those circumstances that had changed during the period between August 14, 1978, the date the court denied a request for a modification of the original child support decree, and November 21, 1979, the date the court again ruled on a child support modification request.
Appellant contends that the trial court should have considered the changed circumstances that occurred since the last decree that awarded child support, which was the original divorce decree. We agree.
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Rueckert v. Rueckert
...the original divorce decree, or any actual modification. Other courts that have considered this issue have so held. Rowe v. Boley, 392 So.2d 838 (Ala.Civ.App.1980), aff'd, 392 So.2d 840 (1981); Blomgren v. Blomgren, 386 N.W.2d 378 (Minn.App.1986); Lutz v. Lutz, 58 Or.App. 122, 647 P.2d 954 ......
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Wilson v. Wilson, 2150259
...was the last judgment that had "awarded" alimony. Id. In doing so, the court in McInnish v. McInnish, supra, cited Rowe v. Boley, 392 So.2d 838 (Ala. Civ. App. 1980), a case involving the modification of child support; the husband advances the theory upon which Rowe v. Boley was decided in ......
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...the last decree, whether it be one denying the modification petition or one modifying a prior child support decree." Rowe v. Boley, 392 So.2d 838, 840 (Ala. Civ. App. 1980), aff'd, Ex parte Boley, supra. The Court of Civil Appeals went on to state:"[W]e think the rationale of the above cite......
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Kelley v. Kelley
...the evidence to those changes in circumstances which had occurred only since the November, 1979, judgment, citing Rowe v. Boley, 392 So.2d 838 (Ala.Civ.App.1980), affirmed, Ex parte Boley, 392 So.2d 840 (Ala.1981). In that case this court stated as [T]he period within which the changed circ......