Worthington v. Worthington

• Decision Date: 28 June 1928
• Docket Number: 6 Div. 83
• Parties: WORTHINGTON v. WORTHINGTON.
• Court: Alabama Supreme Court

117 So. 645

218 Ala. 80

WORTHINGTON v. WORTHINGTON.

6 Div. 83

Supreme Court of Alabama

June 28, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Supplemental petition in equity by Carrie L. Worthington against W.J Worthington. From a decree overruling a demurrer to the petition, respondent appeals. Affirmed.

Earl McBee and Hugh A. Locke, of Birmingham, for appellant.

M.B Grace, of Birmingham, for appellee.

SAYRE J.

April 21, 1924, Carrie L. Worthington had a decree of divorce from her husband, W.J. Worthington, and for a monthly allowance of $150 for the support of herself and two minor children. The relief sought by way of divorce was not contested, and the monthly allowance was fixed by the decree in accordance with an agreement between the parties. The decree stipulated as follows:

"It is further adjudged and decreed by the court that the respondent shall pay, and the complainant shall accept the sum of one hundred fifty ($150.00) dollars per month in lieu of any and all alimony, to which she may have a right under the laws of the state of Alabama, and the said one hundred fifty (150.00) dollars shall be payable on the 1st day of each month, beginning on the 1st day of May, 1924, and continuing up to and including the day when the older of said children shall become 21 years of age, after which time said sum shall be reduced to one hundred ($100.00) dollars per month, which sum shall be paid monthly until the youngest child shall become 21 years of age; after said youngest child shall have reached the age of 21 years, said sum to be paid the complainant shall be fifty ($50.00) dollars per month." And: "It is further adjudged and decreed that the said sum of money which the respondent obligates himself to pay, and which is decreed he shall pay, shall be used by the complainant for the maintenance and support of the said minor children, in any manner she deems their best interest requires; and the complainant shall be the sole judge of the manner in which said sum, or any part thereof, shall be spent, and shall use her sound discretion in and about the expenditure of said sum for the maintenance and support of said children." And: "It is further decreed by the court that no change of the social or economical conditions of either of the parties, or a change of the circumstances of either or both of the parties, or of the children, shall increase or diminish the amount herein decreed to be paid by the respondent in lieu of alimony and for the support of the herein named children and such amount shall remain as herein fixed at one hundred fifty ($150.00) dollars per month during the life or minority of the said children, provided, however, in the event one of the herein named children shall die before attaining the age of 21 years, then in that event, the respondent shall pay to the complainant the sum of one hundred ($100.00) dollars per month, and in the event both of said children die before attaining the age of twenty-one years, such amount shall be reduced and fixed at the sum of fifty ($50.00) dollars per month to be paid to the complainant by the respondent in the manner and at the time above provided for in this decree, during the minority of said surviving child, or the remarriage of the complainant, it being decreed by the court that in the event of the death of both of the said children and the complainant [has] have not married again, the respondent shall pay to her the sum of fifty ($50.00) dollars per month, which amount shall be in lieu of her right to alimony against the respondent under the laws of Alabama."

December 16, 1925, Carrie L. Worthington filed her supplemental bill on the ground and with the result shown by the report of the appeal which followed. Worthington v. Worthington, 215 Ala. 447, 111 So. 224.

The present appeal arises out of a supplemental petition filed by Carrie L. Worthington, appellee, August 16, 1927, in which she prays for an order of reference to ascertain what estate appellant owns, "what additional amount, if any, would be reasonable to be allowed and fixed for the maintenance of complainant and the maintenance and education of the children," and an allowance for appellee's counsel in the matter of the supplemental petition. In support of the petition now under consideration the effort is to show that appellee in making the agreement put into effect by the first decree in the cause of appellee was overreached and "forced" to concur in the agreement by the fraud of appellant. In the original cause it was referred to the register to ascertain what estate the present appellant had and, upon evidence heard by the register, it was ascertained that appellant was worth $35,000, and upon the basis of that ascertainment the present appellee entered into the agreement governing the amount of the allowance to herself and children which was carried forward into the decree. The contention for the fraud now relied upon amounts to this only: That present appellant was then "worth $300,000 to $400,000, a large part of it being in property which the respondent [this appellant] had hid out, covered up, the title in the name of some one else,...