White v. White
| Decision Date | 27 September 1991 |
| Citation | 589 So.2d 740 |
| Court | Alabama Court of Civil Appeals |
| Parties | William Larry WHITE v. Carolyn L. WHITE. Civ. 7911, 7911-X. |
James W. Parkman III of Parkman and Brantley, Dothan, for appellant.
Lexa E. Dowling of Johnston, Etheredge & Dowling, Dothan, for appellee.
ROBERT P. BRADLEY, Retired Appellate Judge.
This appeal arises from postdivorce proceedings.
The parties were divorced in August 1988 in the Circuit Court of Houston County. There were three children born of the marriage. The wife was awarded custody of the parties' only minor child and the husband was ordered to pay $650 per month child support. The husband was further ordered to pay $3,500 a month in periodic alimony to the wife. This amount was later increased to $4,000.
In May 1990 the wife filed a motion to freeze the proceeds from the husband's sale of a beach condominium, and this motion was granted. The wife also filed a petition for contempt, alleging that the husband was in arrears for past-due child support and alimony payments. The husband subsequently filed a petition for modification of alimony and child support.
After an ore tenus proceeding, the trial court entered an order finding that the husband was in contempt and ordering him to pay $51,140 in arrears for child support and alimony. The court ordered the husband to reduce the arrearage by paying $500 per month thereafter and by surrendering to the wife the proceeds from the sale of the beach condominium to be applied toward the arrearage. The court found that there existed a material change in circumstances, based on the husband's reduced earnings, and lowered the husband's alimony obligation to $2,500 per month. The husband's child support obligation was continued at $650 per month.
The husband filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. This motion was denied and the husband appeals. The wife has filed a cross-appeal challenging the trial court's modification of alimony.
We recognize from the outset that the award and modification of child support and alimony are within the sound discretion of the trial court, and its judgment on such issues is presumed correct. Davis v. Davis, 518 So.2d 156 (Ala.Civ.App.1987). This presumption of correctness is strengthened where a motion for new trial has been denied, Tolleson v. Tolleson, 424 So.2d 1331 (Ala.Civ.App.1983), and the court's judgment cannot be reversed on appeal unless there has been a plain and palpable abuse of the court's discretion. Bradley v. Corbett, 567 So.2d 358 (Ala.Civ.App.1990).
The first issue, raised by both parties, is whether the trial court erred in modifying the husband's alimony obligation. The husband argues that the trial court erred by failing to eliminate alimony altogether. On cross-appeal, the wife argues that the court erred in reducing it.
The purpose of periodic alimony is for the financial support of the recipient spouse and may be modified at any time that there is a change in the financial circumstances of either or both spouses. Boudreaux v. Boudreaux, 550 So.2d 1030 (Ala.Civ.App.1989). In making its determination, the court should consider such factors as the recipient spouse's financial needs, the amount of the estate of each spouse, the ability of the payor spouse to respond to the recipient spouse's needs, the ability of each spouse to earn income, and the remarriage of either party. Boudreaux.
The record shows that just prior to the time of divorce the husband earned $80,000 per year as a partner in Whatley-White, Inc., a trucking business. Immediately thereafter, the husband was forced to sell his share of the partnership in return for $25,000 cash and a $75,000 promissory note from the corporation. In addition, the husband entered into a five-year consultant agreement with Whatley-White for $80,000 per year. The husband also owned a beach condominium and a mobile home in Florida, as well as a condominium in Tuscaloosa.
In 1989 Whatley-White, Inc. filed for bankruptcy. As a result, the husband has not been able to collect the $75,000 promissory note and lost the five-year consultant job. The husband returned to work for the corporation briefly but was soon involuntarily dismissed. The husband subsequently sold the beach condominium.
The husband testified at trial that he has earned no income since his final dismissal from Whatley-White. The husband stated that he has sent out a number of resumes and has unsuccessfully interviewed for jobs in the trucking industry. He further testified that he has worked as an independent real estate agent since May 1990, but has earned no income from this effort. The husband's living expenses total more than $3,000 per month, which he claims are paid by his new spouse.
The record shows that the wife owns a...
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