Sellers v. Sellers
| Decision Date | 09 May 1973 |
| Citation | 50 Ala.App. 158,277 So.2d 616 |
| Parties | O. J. SELLERS v. Yvonne SELLERS. Civ. 88. |
| Court | Alabama Court of Civil Appeals |
Barnett, Tingle & Noble, Birmingham, for appellant.
Beddow, Embry & Beddow and James M. Fullan, Jr., Birmingham, for appellee.
The parties to this appeal were divorced by decree of the Circuit Court of Jefferson County, Alabama, on August 19, 1971. The wife, appellee here, was granted the divorce on the ground of adultery. There was incorporated in the decree an extensive agreement between the parties by which the wife obtained various pieces of real estate owned by the husband or by both jointly. Included was a building and a carpet business and other vacant lots, together with the home. The husband was directed to pay to the wife half of the net profit realized from the sale of some four houses which had been constructed and were to be sold. The parties had jointly operated a construction business.
The wife received all household furniture, all savings accounts, a 1971 Cadillac automobile. The husband was to maintain the mortgage payments on the home until it was sold. He was to construct another home for the wife and child at cost. He was to list houses which he would construct in the next year with the wife as a real estate broker so that she could obtain the commission on their sale. The wife and daughter were to receive a trip to Rome, Italy, which had been won by the operation of the business, and be paid $700 to spend on the trip. In addition, support for the fifteen-year-old daughter of the parties was to be in the amount of $700 per month, and the wife was to receive $300 per month as alimony for a period of three years.
There were other various matters required of the husband, such as repairing the building given to the wife and keeping it insured. He was to make the child beneficiary of all his life insurance and keep it in force. The wife received cemetery lots and was transferred a second mortgage on a piece of property. All in all, the agreement covers nearly four pages in the transcript of this case. It appears that about all the husband had remaining was a Chevrolet automobile, a tractor and a truck used in the business, and the knowledge and ability to construct homes for sale. Nevertheless, it was his agreement, though apparently entered without counsel.
The matter involved in this appeal began with a petition for a rule nisi filed by Yvonne Sellers to require O. J. Sellers to show cause why he should not be held in contempt for failure to comply with the agreement as incorporated in the divorce decree. This petition was filed on April 27, 1972. Rule nisi was duly issued and Sellers responded with a petition to modify the original decree by reducing the support payments for the child and alimony payments to the wife. Material change in the petitioner's income and ability to pay were alleged.
The petition for rule nisi was amended, alleging several areas of the decree which had not been complied with, charging an arrearage of $9000 in support and alimony, and requesting an attorney fee. The wife responded to the petition to modify by motion to strike on the ground of unclean hands. The petition to modify and the rule nisi were heard orally before the court on July 6, 1972. Decree was entered on July 7, 1972, finding appellant in contempt for failure to comply with several provisions of the divorce decree and finding an arrearage in support and alimony of a total amount of $8100. As punishment, appellant was ordered to be placed in jail for two days and directed to purge the contempt by paying and keeping the support and alimony current. An attorney fee of $250 was awarded to appellee. The petition to modify was denied. It is from that part of the decree denying the petition to modify that this appeal is taken.
We approach this appeal, as in all cases in which the testimony is heard orally by the court, with the presumption that the decree of the court is correct. Lee v. Lee, 283 Ala. 275, 215 So.2d 718; Alabama Elec. Co-op., Inc. v. Partridge, 283 Ala. 251, 215 So.2d 580; Jordan v. Ellis, 278 Ala. 116, 176 So.2d 244. That the modification of a prior decree for support and alimony, based upon changed circumstances of the parties, is largely a matter within the judicial discretion of the trial court. The exercise of such discretion is to be disturbed on appeal only if from a review of the evidence this court finds in the decree such an abuse of discretion as to be plainly and palpably wrong. Southern Sash of Huntsville, Inc. v. Jones, 286 Ala. 672, 245 So.2d 185; Brantley v. Hall, 286 Ala. 400, 240 So.2d 364; Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878.
We have carefully reviewed the testimony presented by both parties.
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