Brining v. Brining

600 So. 2d 295, 1992 Ala. Civ. App. LEXIS 224, 1992 WL 101375
CourtCourt of Civil Appeals of Alabama
DecidedMay 15, 1992
Docket2900578
StatusPublished
Cited by2 cases

This text of 600 So. 2d 295 (Brining v. Brining) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brining v. Brining, 600 So. 2d 295, 1992 Ala. Civ. App. LEXIS 224, 1992 WL 101375 (Ala. Ct. App. 1992).

Opinion

ROBERTSON, Presiding Judge.

Based on the pleadings, deposition testimony, and an agreement between the parties, the . trial court entered a judgment of divorce on September 18, 1989, dissolving the marriage of John and Sandra Brining.

The parties’ four minor children were placed in the custody of the wife. Among other things, the order required the hus.band to pay $400 per child per month ($1600 per month) as child support. This amount was to be paid directly to the wife in equal installments on the 15th and 30th of each month, and was to decrease by $400 per month as each child reached the age of majority. Also, the husband was ordered to pay for certain medical expenses and educational expenses for the children’s private education throughout high school, and he also was ordered to provide health and medical insurance for the children. Additionally, the husband was ordered to pay the wife $600 per month as periodic alimony, payable in equal installments of $300 on the 15th and 30th of each month. However, this amount was to be reduced by $300 per month beginning the second month after the wife became employed.

Approximately one year later, the wife began filing various motions for rule nisi, requesting the trial court to hold the husband in contempt for failing to pay certain monies to the wife as required by the original judgment. Also, the wife requested that the trial court modify the terms of the judgment by limiting the husband’s visitation rights with their four minor children since the husband recently had completed a substance abuse program.

In response, the husband filed a motion for modification of the divorce judgment, alleging that a material change of circumstances had occurred, in that his financial earnings and income producing assets had been reduced substantially. Particularly, the husband requested that his alimony and child support obligations be reduced to an amount commensurate with his present income as directed by the court or deter[296]*296mined by the child support guidelines under Rule 32, Alabama Rules of Judicial Administration.

Following an ore tenus proceeding, the trial court entered an order on March 22, 1991, which stated:

“1. The [husband] shall bring his child support and alimony payments current on or before April 1,1991, by paying directly to the [wife] the sum of $2,400. The failure or refusal of the [husband] to bring this amount current by this date shall be the basis for the issuance of an alias writ and commitment of the [husband] to the custody of the Sheriff of Mobile County.
“2. Effective the date of this order, the [wife’s] alimony and the [husband’s] responsibility therefor shall be reduced to the sum of $300.
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“9. The [husband’s] motion to reduce child support payments and any and all other obligations imposed upon the [husband] by the original decree is hereby overruled and denied.
“10. Visitation of the minor children shall be effected with their father upon such reasonable terms as the parties may agree.”

Shortly thereafter, the wife filed a motion to amend, and the husband filed a motion to review and reconsider. Also, the husband filed a bankruptcy petition in the U.S. Bankruptcy Court. The wife then motioned the trial court for a determination that the husband’s support obligations be declared non-dischargeable in bankruptcy.

The trial court entered an order on April 30, 1991, deferring to the U.S. Bankruptcy Court to determine the dischargeability of certain house payments addressed in the original divorce judgment. Also, the order stated that the husband was to pay alimony and child support payments of $2,200 per month as follows: $1,100 on the first of each month and $1,100 on the fifteenth of each month with the next payment due May 1, 1991.

The wife then amended her earlier “motion to amend” by requesting that the trial court include certain money judgments awarded in its order of March 22, 1991, as payments “ ‘in the nature of alimony, maintenance and support,’ and thus non-dis-chargeable in bankruptcy court.”

The trial court then amended its order of April 30, 1991, to reflect the previously ordered reduction of $300 in the husband’s alimony payments. This amendment required the husband to pay a total of $1,900, with $950 payable on the first and fifteenth of each month beginning on May 15, 1991. All other provisions of the order entered on April 30, 1991, were affirmed.

The trial court then entered a final order on May 24, 1991, wherein the husband’s motion to review and reconsider the March 22, 1991, order was denied. However, the wife’s amended “motion to amend” was granted. Consequently, the trial court amended its order of March 22, 1991, to classify the money judgments awarded to the wife in Paragraphs 2, 4, and 9 as being “in the nature of alimony, maintenance, and support pursuant to the Bankruptcy Code, 11 USC 523(a)-(5).”

The husband appeals and raises two issues: 1) Whether the trial court erred to reversal by denying the husband’s motion for an adjustment to his periodic child support obligation based upon a material change in his financial circumstances; 2) Whether the trial court erred to reversal by failing to apply and follow Rule 32, ARJA, to determine the husband’s monthly obligation for periodic child support.

The husband contends that, according to Thistlethwaite v. Thistlethwaite, 590 So.2d 317 (Ala.Civ.App.1991), the trial court has continuing jurisdiction to modify child support obligations upon a showing of a material change of circumstances in either or both parties’ circumstances. Although child support obligations may be modified upon a showing of a change of circumstances, we note that “[e]ven where such a change is shown, modification of a prior judgment remains a matter within the discretion of the trial court. The exercise of this discretion is presumed correct and will not be reversed on appeal unless it is plainly and palpably [297]*297wrong.” Thistlethwaite, 590 So.2d at 318 (citation omitted).

Here, the husband admits that the parties divorce agreement in 1989 reflected “substantial financial resources and properties.” Now, however, the husband argues that, although his salary and employment remain the same, previous income-producing investments and properties have become liabilities or have ceased producing revenue. Furthermore, the husband maintains that this situation is not his fault but, instead, is attributable to such uncontrollable events as the Persian Gulf war, the devaluation of the U.S. real estate market, and general international economic conditions. Also, the husband states that his support obligations and his non-modifiable obligations (which, according to the husband, exceed $2,000 per month) are now greater than his available income. Accordingly, the husband argues that his decreased earnings demonstrate a change of circumstances, and, therefore, the trial court erred by not modifying his child support obligations.

The record reveals the following facts: At the time of trial, the husband was vice-president of John M. Brining Company, Inc., which is an import-export company that handles foreign freight shipping. According to the husband’s testimony, he owned no interest in the company, but his gross income for 1990 was shown to be $43,509.37 according to his 1990 W-2 statement.

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Bluebook (online)
600 So. 2d 295, 1992 Ala. Civ. App. LEXIS 224, 1992 WL 101375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brining-v-brining-alacivapp-1992.