Fuller v. Fuller

368 So. 2d 30, 1979 Ala. Civ. App. LEXIS 895
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 24, 1979
DocketCiv. 1610
StatusPublished
Cited by3 cases

This text of 368 So. 2d 30 (Fuller v. Fuller) 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
Fuller v. Fuller, 368 So. 2d 30, 1979 Ala. Civ. App. LEXIS 895 (Ala. Ct. App. 1979).

Opinion

BRADLEY, Judge.

Former wife appeals from an order of the Circuit Court of Mobile County which decreed that no arrearages of alimony and child support payments were owed by the ex-husband and that the ex-husband shall pay to the ex-wife as alimony the sum of $90 per month. We affirm.

The parties to this appeal were divorced in January 1966 after eighteen years of marriage. Although the original divorce decree was not made a part of the record in this appeal, the parties stipulated that the decree provided that “the Respondent [Richard Fuller] will pay to the Complainant [Hilda Fuller] two hundred dollars per month as alimony and support.”

On January 31, 1978 Mrs. Fuller filed a “motion” in the circuit court seeking inter alia to have Mr. Fuller adjudged in contempt of court for his failure to pay the full monthly amounts required by the divorce decree. The parties stipulated at the hearing that the arrearage of these payments, if in fact such arrearage was owed, totaled about $8,000. The husband’s answer denied that he was in arrears and also contained a “cross-motion” asking the court to eliminate the alimony and support payments required by the divorce decree on the grounds that the parties’ two minor children had reached the age of majority and were no longer dependents.

The trial court held a hearing at which the following facts were revealed. The parties’ two children, who were minors at the time of the divorce decree, are now adults. The son, Rick, reached the age of majority in June 1970 and is now approximately twenty-nine years old. The daughter, Gail, reached the age of majority in June 1972 and is now about twenty-seven years old. Both children are now attending college at the expense of Mrs. Fuller’s aunt.

At the time of the hearing Mrs. Fuller, then fifty-eight years old, was working at an attorney’s office as a secretary and office manager, making approximately $1,000 per month. She testified that she also had been operating a business called the “Soap Shop” for over a year. Despite the fact that this business suffered a loss of $3,600 during the previous year, Mrs. Fuller stated that she had notified her employer of her intention to leave her job as secretary in order to operate the Soap Shop. She further testified that the attendant pressures of her job at the law office contributed to her recent medical problems; that her aunt and her mother would provide her temporary financial support as she made the adjustment from her secretarial job to operating the shop; and that she hoped her business would “break even” during 1978 and show a profit the following year.

Mr. Fuller, now in his late fifties, testified that he had ceased to be a civil service employee the month before the hearing, when health problems forced him into early retirement. His gross annual salary had increased from $13,000 at the time of the divorce in 1966 to about $25,000 in 1977. After the divorce he had moved to California, had remarried in 1968, and is now supporting his present wife and her children. His retirement income and YA disability pension will give him an estimated annual income of $14,000. He and his present wife have about $10,000 equity in a home, own two motor vehicles, and have about $4,500 [32]*32in bank accounts. In the last ten years they have taken several trips outside the continental United States and at least one cross-country motor trip in this country.

The record indicates that from the time of the divorce in 1966 through October 1969 Mr. Fuller paid the full $200 per month alimony and child support as required by the divorce decree. However, during the next fifty months, i. e. from November 1969 through December 1973, Mr. Fuller made monthly payments which varied in amount from $140 to $180. Specifically, he paid $140 per month for nineteen and one-half of these months, $180 per month for twenty-nine and one-half of these months, and $160 for one of these months. Thereafter, from January 1974 through the time of the hearing he paid $80 per month.

Mrs. Fuller testified that she acquiesced to the payments because she needed the money and was afraid that if she “caused any trouble he would stop them altogether.” In January 1978 she received a letter from Mr. Fuller wherein he advised her that the payments would stop in May of that year. At that point she decided to institute the contempt proceedings.

Mr. Fuller contended in his testimony that Mrs. Fuller agreed to these reduced payments, insofar as she never objected when he notified her that the amount of the payments was going to be lowered. He also indicated that certain factors influenced his decision as to what amount he would send each month; namely, whether either of the children was in school, whether either of the children had reached twenty-one years of age, and whether Mrs. Fuller requested a little more money than she had received the previous month. He testified that in 1974 he finally reduced the payments to $80 per month because both children were out of school, over twenty-one, and working; and that he is now unable to continue making payments to his ex-wife.

In addition to making the above mentioned payments, the record indicates that Mr. Fuller also maintains hospitalization and burial insurance policies on Mrs. Fuller and the two children. Mrs. Fuller is the beneficiary of a life insurance policy maintained by Mr. Fuller, and the son, Rick, is the contingent beneficiary. On one occasion Mr. Fuller sent Rick $500 to pay for a car repair. The record also indicates that for a time Rick lived with Mr. Fuller in Sacramento, California while attending school there, but it is unclear whether this occurred prior to Rick’s reaching the age of majority.

Following this hearing the trial court issued an order dated June 14, 1978 finding no arrearage owed by Mr. Fuller and ordering him to make future alimony payments to Mrs. Fuller in the amount of $90 per month.

The wife contends on appeal that the trial court erred in ruling there was no arrearage and abused its discretion in reducing the amount of alimony. She argues that the trial court retrospectively modified the divorce decree in contravention of the rule set forth in Whitt v. Whitt, 276 Ala. 685, 166 So.2d 413 (1964). She cites Whitt for the proposition that while changed circumstances may be grounds for modification of a divorce decree requiring the husband to pay alimony, such a modification has only a prospective effect and cannot relieve the husband of paying alimony installments which matured prior to the petition for modification. She also cites numerous Alabama cases holding that accrued installments of alimony become final judgments as of the date due and may be collected as other judgments.

On the other hand, the husband’s position is that the trial court properly found no arrearage. He points out that the original divorce decree required the husband to pay a monthly lump sum as alimony and child support, and that the two children born of the marriage had reached the age of majority in 1970 and 1972 respectively. The ultimate issue to be decided, he argues, is not whether the past-due installments are to be considered non-modifiable final judgments, but rather, whether such “judgments” may be considered partially paid and satisfied by way of credits applied against the arrear-age. The husband contends that in the [33]*33instant case, as in Nabors v. Nabors, Ala.

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475 So. 2d 578 (Court of Civil Appeals of Alabama, 1985)
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384 So. 2d 1118 (Court of Civil Appeals of Alabama, 1980)

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Bluebook (online)
368 So. 2d 30, 1979 Ala. Civ. App. LEXIS 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuller-v-fuller-alacivapp-1979.