Taylor v. Taylor
| Decision Date | 10 June 1994 |
| Citation | 640 So.2d 971 |
| Court | Alabama Court of Civil Appeals |
| Parties | Marie K. TAYLOR v. Harold E. TAYLOR. AV92000729. |
Robert C. Barnett of Barnett, Noble & Hanes, Birmingham, for appellant.
Hewitt L. Conwill, Columbiana, for appellee.
This case involves the modification of a judgment of divorce.
Harold E. Taylor and Marie K. Taylor were divorced by a judgment of the Shelby County Circuit Court in October 1989, which incorporated and ratified an agreement between the parties. Pursuant to the judgment of divorce, the trial court, among other things, awarded the wife alimony in the amount of $400 per month, due on the first day of each month; awarded the husband the marital residence with the stipulation that he would sell the house and divide the proceeds equally between the parties; and ordered the husband to designate the wife as the irrevocable beneficiary of his Kodak Retirement Income Plan, Kodak Employee Stock Ownership Plan, Eastman Kodak Employee Savings and Investment Plan, and Group Life Insurance Program.
On July 30, 1992, the husband filed a petition to modify the judgment of divorce, alleging that a substantial and material change of circumstances had occurred and requesting relief from his obligation to pay alimony. On September 8, 1992, the wife filed an answer and counterclaim, denying that a change of circumstances had occurred and alleging that, during June, July, and August 1992, the husband had failed to make alimony payments totalling $1,200. Thereafter, on October 8, 1992, the wife filed a petition for rule nisi, seeking, among other things, payment of back alimony. On April 14, 1993, the wife filed an additional pleading, alleging that the amount of the alimony in arrears had grown to $4,664.
Following an ore tenus proceeding on April 14, 1993, the trial court entered an order on May 3, 1993, suspending the husband's obligation to make alimony payments until a further order of the court. Moreover, the trial court found that the husband was not in arrears of his alimony obligation.
The wife's post-judgment motion was denied, and she appeals, contending (1) that the trial court erred in excusing the husband from alimony payments that matured before he filed his petition to modify; (2) that in determining whether to modify the alimony payments, the trial court erred in considering the husband's actual earnings rather than his ability to earn and/or pay the alimony; and (3) that the trial court erred in failing to consider the husband's retirement account as a source of income with which to pay alimony.
We find the dispositive issue to be whether the trial court erred in modifying the alimony payments.
Initially, we note that the judgment of a trial court following an ore tenus proceeding is presumed correct on appeal and will not be set aside unless it is shown to be plainly and palpably wrong. Lucero v. Lucero, 485 So.2d 347 (Ala.Civ.App.1986). A trial court's judgment in a modification proceeding will not be reversed unless there has been an abuse of discretion. McCalla v. McCalla, 497 So.2d 509 (Ala.Civ.App.1986). This court has held that "[w]hen ... the decree fixing the amount of support is based on an agreement between the parties, the decree should not be modified except for clear and sufficient reasons and after thorough consideration and investigation." Tucker v. Tucker, 588 So.2d 495 (Ala.Civ.App.1991).
The burden is on the party seeking a modification of the periodic alimony award to show the trial court that a material change in the parties' circumstances has occurred since the trial court's last judgment or order. Glenn v. Glenn, 626 So.2d 638 (Ala.Civ.App.1993). In determining whether there has been a material change in circumstances, the trial court must consider the financial needs of the payee spouse and the financial ability of the payor spouse to respond to those needs. McCalla, supra. It is the payor spouse's ability to earn and pay the support rather than his actual income that is determinative. Wall v. Wall, 611 So.2d 1107 (Ala.Civ.App.1992).
The record reveals that, at the time of the hearing, the husband was 58 years old and had a high school education. He was attending Florida College part-time while doing maintenance work there. The wife, 53 years old, was employed by the law firm of Barnett, Noble, Hanes, & O'Neal and also worked part-time at Parisian. The wife testified that her employment circumstances are the same as they were at the time of the divorce, except that she earns somewhat more. However, she stated that she could not be certain how much more. The wife's annual gross wages totalled approximately $30,500 during 1992. The wife also testified that she recently had undergone surgery to remove a cancerous tumor from her leg, and that she was under medical supervision for a mass in her breast.
The husband testified that when he and the wife were divorced, he was an equipment service representative for Kodak. The husband also testified that, in early 1991, after 27 years with Kodak, his job was terminated because of a down-sizing, and he chose retirement rather than dismissal. In the year preceding his retirement, the husband earned approximately $45,000.
The husband testified that the money from his Kodak Retirement Income Plan, which totalled $122,954, had rolled over into an IRA account set up for him by Kodak in January 1991. Records from the Iuka Guaranty Bank that were introduced at the hearing revealed that by February 1993, the account had grown to $139,049.25 and was accruing $636.31 per month. Records from Kodak that were introduced at the hearing further showed that as of January 31, 1993, the husband's interest in the Kodak Employee Stock Ownership Plan was valued at $2,734.67, with receipt deferred until February 25, 2006. As of January 29, 1993, the husband's interest in the Kodak Employee Stock Ownership Plan was valued at $36,257.27, with receipt deferred until March 15, 2006. The husband admitted that he had spent some of the money from his Kodak employee benefit plans on house repairs.
After retiring from Kodak, the husband made $5,905 in approximately four months while loading trucks and making deliveries for J.R. Martin in Birmingham. However, he quit this job in late August 1991. The husband testified that he spoke to John Clark about repairing the machinery at John's Photo Service, but did not fill out an application for employment. He also spoke with someone in Tuscaloosa about repairing photographic equipment. Ho...
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