Worthington v. Worthington

• Decision Date: 13 January 1927
• Docket Number: 6 Div. 748
• Citation: 215 Ala. 447,111 So. 224
• Parties: WORTHINGTON v. WORTHINGTON.
• Court: Alabama Supreme Court

111 So. 224

215 Ala. 447

WORTHINGTON v. WORTHINGTON.

6 Div. 748

Supreme Court of Alabama

January 13, 1927

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

Petition in equity by Carrie L. Worthington against W.J. Worthington. From the decree respondent appeals. Affirmed.

W.T Edwards, of Birmingham, for appellant.

M.B Grace, of Birmingham, for appellee.

MILLER J.

Carrie Long and W.J. Worthington were married on April 29, 1915. They lived together as husband and wife until September 19, 1919. As the fruits of this marriage two children were born--W.J. Worthington, Jr., who is now about nine years of age, and Mary Augusta Worthington, who is now about six years of age. Carrie L. Worthington obtained a decree of divorce from him on the 21st day of April, 1924, in the circuit court in equity of Jefferson county, Ala., on the ground of voluntary abandonment from bed and board by him for two years next preceding the filing of the bill. Prior to the decree, during the pendency of the cause, the complainant and respondent entered into a written agreement, signed by each of them, which was embodied in and made a part of the decree. That part of the agreement applicable to this cause reads 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, provided, in the event she shall not have remarried, in which event all payments shall cease. ***

"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."

The father is complying fully with the decree by paying to the mother the $150 per month.

In 1925 Mary Augusta, the daughter, developed a serious ailment, and the removal of her tonsils and adenoids was necessary. Her tonsils were diseased, and it was seriously affecting her health, and a surgical operation was necessary. The monthly allowance paid by her father was insufficient to support her and pay the necessary expenses for the operation. The mother informed the father of this condition of their daughter, her inability to pay the expense of the operation, and requested him to pay it, which he refused to do. So the mother, Carrie L. Worthington, filed a supplemental petition against W.J. Worthington, setting up and making a part thereof the foregoing decree of divorce, alleging the condition of their child, Mary Augusta, the necessity for the operation, her inability to pay it, the ability of the respondent to pay it, his refusal to do so, and requests and prays the court to require him to pay the reasonable and necessary expenses of it.

The respondent, the father, demurred to the petition on the grounds that there was no equity in the petition and that the decree appearing therein showed that no change in the social or economical conditions or circumstances of either of the parties or of the children shall increase or diminish the amount to be paid by him. This demurrer was by a decree of the court overruled. The respondent then filed a plea setting up the agreement of the parties and the decree declaring the amount to be paid by him for this child could not be increased or diminished by her social or economical condition, or her circumstances. The court by decree held this plea insufficient.

The respondent then filed an answer, denying some of the material averments of the petition; and on the pleading and proof and agreed statement of facts, the court decreed the petitioner was entitled to relief, held the amount paid by her for the necessary expenses of the operation, $210, was reasonable, and directed him to pay said sum into court; and, as it was necessary to employ counsel to prosecute this cause, the court found $50 would be reasonable compensation therefor, and directed the respondent to pay that amount into the court for him. The decree also taxed the respondent with the cost of this court. This appeal is prosecuted by the respondent, the father, and the foregoing decrees are the errors assigned and argued.

The child's custody, control, care, and maintenance were by the divorce proceedings placed within the jurisdiction of this court of equity, and this child thereby became a ward of this equity court; and "any matter affecting a child may become a subject of chancery jurisdiction." Woodruff v. Conley, 50 Ala. 304. This matter presented by the...