Smith v. Smith

• Decision Date: 14 December 1983
• Citation: 443 So.2d 43
• Parties: Jerry A. SMITH v. Elizabeth A. SMITH. Civ. 3897.
• Court: Alabama Court of Civil Appeals

Page 43

443 So.2d 43

Jerry A. SMITH v. Elizabeth A. SMITH.

Civ. 3897.

Court of Civil Appeals of Alabama.

Dec. 14, 1983.

James W. Parkman III, Dothan, for appellant.

H.J. Martin of Amos & Martin, Dothan, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a civil contempt proceeding against a father for his failure to pay court ordered child support to his former wife. The primary questions involve credits against his arrearage.

The parties were divorced on October 9, 1976 after a twelve year marriage. Mr. Smith, the husband and father, was ordered to pay to Mrs. Smith, the wife and mother, the sum of $250 each month for the support of their three minor children, whose custody was granted to the mother. The divorce judgment has never been modified.

In June 1983 the mother sought to place the father in contempt of court for his failure to make the required child support payments. After both parties testified before the circuit court, a judgment was entered which found the father to be in contempt, determined his arrearage to be $19,950, and allowed him to purge himself of contempt by making monthly payments of $400 to the mother, $250 thereof to be applied to current child support payments and $150 to past-due compensation. The father duly appealed. We treat the appeal as being certiorari proceedings.

As to the individual children, the father contends that he was entitled to credits against his arrearage for various reasons. The facts and the law shall be developed and applied as to the issues concerning each child's support.

Barbara

Barbara married on October 22, 1979. At that time she was only fifteen years of age. She is now nineteen and resides in Florida with her husband. The father contends that, on account of Barbara's marriage, he is due a credit, commencing as of the date of her marriage, against his delinquent child support. No such credit was allowed by the trial court.

This aspect of the case is controlled by Owens v. Owens, 412 So.2d 820 (Ala.Civ.App.1982), where the ordered child support was set at $60 per week for two daughters. The father was current in his payments when the older daughter married but, at that time, he unilaterally reduced his payments to $30 each week. The mother sought a judgment for the weekly difference of $30 between what he paid and what she contended he was due to pay. In substance, the trial court relieved the father of such difference from the date of the daughter's marriage. We reversed, holding that a judgment for child support arrearage should have been entered, and the following was stated:

"We have consistently held in recent cases under similar facts that a father may not unilaterally reduce child support payments where the decree does not so provide. Events such as the marriage of a minor child provide cause to seek modification. See, Weaver v. Weaver, 401 So.2d 77 (Ala.Civ.App.), cert. denied, 401 So.2d 78 (Ala.1981). See also, In re Weaver, 412 So.2d 286 (Ala.Civ.App.1982); McDaniel v. Winter, 412 So.2d 282 (Ala.Civ.App.1982); Parker v. Parker , (Ala.Civ.App.1982)."

412 So.2d at 822.

For those same reasons, the father in the instant matter may not be credited because of Barbara's marriage or due to her recently reaching her majority, for neither automatically modified the child support judgment, but either, or both, only provided cause for seeking child support modification. Wood v. Wood, 434 So.2d 800 (Ala.Civ.App.1983). There was no abuse of discretion and the trial court did not err in not allowing any credit for Barbara's support.

Bobby

Because the mother had difficulty controlling their son, Bobby, she allowed him to reside with his father in accordance with the boy's wishes. From about eighteen months after the divorce until the present time, Bobby has lived either with the father or with his father's parents. The father provides food and clothing for this son and purchased an automobile for him. There was no testimony as to the amount of expenditures which were made by the father for Bobby's support, maintenance, or education at any time. The father complains that the trial court erred in not granting credit against his delinquent child support during the extended period of time that Bobby has lived with him. For the reasons which follow, we find no such error in that regard.

More than one child was here involved and the trial court could not overlook the support needs of the third child, Deborah, who has always been in the mother's actual custody except for a few weeks. Sutton v. Sutton, 359 So.2d 392 (Ala.Civ.App.1978). The divorce judgment as to support did not provide for a reduction of a particular amount when each child married, reached majority, or became self-supporting (including being actually supported by and living with either the father or a third person); and a unilateral reduction in the amount of child support payments could not be made by the father in this case. Owens v. Owens, supra; McDaniel v. Winter, 412 So.2d 282 (Ala.Civ.App.1982); Weaver v. Weaver, 401 So.2d 77 (Ala.Civ.App.), cert. denied, 401 So.2d 78 (Ala.1981).

We certainly have no quarrel with the fair, just, and equitable rule of law as it was stated in Nabors v. Nabors, 354 So.2d 277 (Ala.Civ.App.1978), that, in the discretion of the trial court, an arrearage of ordered child support may be credited for amounts which were expended by an obligated parent when that parent actually furnishes support for a child while in his custody or in the custody of another. However, the unilateral reduction prohibition, as it was delineated in the Owens case, supra, and in the other similar recent decisions cited therein, is an element to be given much consideration by a trial court in the exercise of its discretion. Judicial discretion still remains with the trial court as to credits. McDaniel v. Winter, supra. For a case which reconciles any imagined conflicts between the Owens and Nabors decisions, see Kinsey v. Kinsey, 425 So.2d 483 (Ala.Civ.App.1983).

Also, the father wholly failed to present any direct or opinion proof as to any average or specific amounts which he furnished or expended for any or all purposes at any time or during any given period of time for Bobby's support. That lack of proof, in itself, is justification enough for the discretionary denial of a credit concerning Bobby's maintenance by his father. Credit is not allowed where the father is not able to prove such expenditures. Wood v. Wood, supra; Anonymous v. Anonymous, 428 So.2d 109 (Ala.Civ.App.1983); Weaver v. Weaver, supra. In the absence of proof of such facts, there was no abuse of the trial court's judicial discretion in disallowing credit for Bobby's support while living with his father. Under the circumstances the amount of any credit would be mere speculation. Consequently, for this court to reverse on that alleged ground would be an unauthorized substitution of our judgment upon factual matters for that of the trial court.

Deborah

The youngest child, Deborah, is seventeen years of age and has resided with her mother since the divorce except for one period of time when she lived with the father in order to attend a particular school. The mother swore that Deborah stayed with the father for only six weeks at that time but the father testified...