Stringer v. Sheffield
| Decision Date | 18 April 1984 |
| Citation | 451 So.2d 320 |
| Parties | Jamie Ray STRINGER v. Martha L. Stringer SHEFFIELD. Civ. 4028. |
| Court | Alabama Court of Civil Appeals |
Joseph C. McCorquodale, III, Jackson, for appellant.
Ronnie E. Keahey, Grove Hill, for appellee.
This postdivorce litigation concerns unpaid child support and an increase in the amount of future support through modification of the divorce judgment.
The parties were first divorced from each other in June 1967 but remarried in late 1967. Their second divorce was rendered on April 23, 1969 after the defendant-husband had filed an answer and waiver to the complaint. That judgment granted the custody of Joel and Billy, "the minor children of the parties," to the plaintiff-mother and ordered the defendant to pay monthly support for the children of $50. On January 21, 1983 the plaintiff filed her petition, which sought to adjudge the defendant to be in contempt of court for his delinquency in the payment of support for the children. The plaintiff also asked for an increase in the amount of support to be paid by the defendant. After an ore tenus trial, a judgment was entered against the defendant in the amount of $7,975 for past-due child support and the divorce judgment was modified so that the defendant was ordered to subsequently pay $34 each week for Billy's support. The defendant appealed and raised four issues.
The defendant complains that the trial court erred in not allowing witnesses to testify that the plaintiff had stated that Billy was not the child of the defendant.
Billy was born on June 18, 1968. The plaintiff swore that Billy is the defendant's son and that the defendant knows it. In one instance the defendant was permitted to testify that, about one year after the April 1969 divorce of the parties, the plaintiff told the defendant that Billy was not his child. However, the plaintiff's objections were sustained to other questions which were directed to the defendant and to some of his witnesses concerning the plaintiff's statements regarding Billy's paternity.
The 1969 divorce decree designated Joel and Billy as being "the minor children of the parties." That constituted a finding that the defendant was the father of those two boys and, in subsequent proceedings between them, the parties are normally concluded by that paternity determination of their divorce judgment. Stewart v. Stewart, 392 So.2d 1194 (Ala.Civ.App.1980), cert. denied, 392 So.2d 1196 (Ala.1981). In Stewart, however, it was pointed out that res judicata may not be utilized to sustain certain types of fraud. The counterclaim of the defendant was, in substance, an independent action under rule 60(b) of the Alabama Rules of Civil Procedure. That pleading complained that fraud was committed by the plaintiff upon the defendant and upon the trial court regarding Billy's paternity.
Under rule 60(b) any independent action for a fraud allegedly perpetrated against the defendant was required to be commenced within three years of the divorce or within one year from the discovery of the fraud under section 6-2-3, Code 1975. Here, the defendant's own testimony showed that he knew of such alleged fraud approximately one year after the April 1969 divorce. The counterclaim was filed in August 1983, which was at least eleven years too late in making a claim of fraud committed against the defendant.
Stewart v. Stewart, supra. Therefore, no fraud was committed upon the trial court by the plaintiff concerning Billy's paternity.
We find no error as to this issue.
The defendant complains that the evidence was insufficient to prove that a material change in the circumstances had occurred which warranted a modification as to child support.
The 1969 divorce decree established support for the two boys at $50 per month and the 1983 judgment modified it to $34 each week for Billy's sustenance. Joel reached his nineteenth birthday on June 13, 1983, prior to the modification judgment.
The plaintiff is employed but takes home only $100 per week in net wages. She testified that she needs assistance from the defendant in supporting Billy since her income is inadequate to do so. The defendant admitted that his hourly wages in 1969 were $3 and had increased to $10 in 1983. His present average net weekly wage is $320 when a $60 weekly deduction for his credit union is not considered. He pays $50 weekly for child support for a child born to his second wife and has one child by his third, and present, wife.
"This court has committed itself to the principles that the increase in age of minor children and the correlative increase in need for support, when coupled with the increase in the cost of living due to inflation, is sufficient to constitute a material change of circumstances and support a modification." (Citations omitted.)
Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979). Where an ore tenus hearing is held before the trial court, we presume that the factual finding of the trial court is correct and we cannot alter it if it was supported by legal evidence unless it was palpably wrong. Young v. Young, supra. The evidence was adequate and the trial court's modification of the divorce judgment's provisions for child support was not palpably wrong.
The next issue raised by the defendant concerns the failure of the trial court to allow certain credits to the defendant for various matters as against his arrearage of child support.
The defendant testified that Joel lived with him on two different occasions, once for five months and once for seven months. Joel also resided with his paternal grandparents for one and one-half years commencing when he was seventeen years old, but, during that entire period, the plaintiff furnished clothing, money, and other items to Joel, and he would return to the plaintiff's home and stay with her "off and on." There was no proof of the amount of expenditures made by either of the parties or by the paternal grandparents while Joel resided with them. Hence, a credit cannot be allowed for those items because of a lack of required proof in that regard. Wood v. Wood, 434 So.2d 800 (Ala.Civ.App.1983); Weaver v. Weaver, 401 So.2d 77 (Ala.Civ.App.), cert. denied, 401 So.2d 78 (Ala.1981).
In February 1983 Joel began to stay with a paternal aunt and her husband in Texas. Joel reached nineteen years of age on June 13, 1983. There was evidence of expenditures by the aunt for Joel. A total of $8,600 was due to be paid as support for both boys by the defendant from the 1969...
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