Hopper v. Hopper

306 So. 2d 13, 54 Ala. App. 144, 1974 Ala. Civ. App. LEXIS 454
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 4, 1974
DocketCiv. 290
StatusPublished
Cited by6 cases

This text of 306 So. 2d 13 (Hopper v. Hopper) 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
Hopper v. Hopper, 306 So. 2d 13, 54 Ala. App. 144, 1974 Ala. Civ. App. LEXIS 454 (Ala. Ct. App. 1974).

Opinion

BRADLEY, Judge.

The appeal is from a modification of that part of an original divorce decree relating to child support and visitation privileges.

The original divorce decree was rendered by the Circuit Court of Perry County on December 21, 1966, and provided, among other things, that the mother was to have custody of the children, child support of $300 per month, and reasonable visitation privileges for the father. The wife was awarded $9,000 as a property settlement and $6,500 as payment in full of all marital obligations.

In June 1970, pursuant to an agreement, the decree was modified to allow the mother and children to move to Marietta, Georgia. The visitation arrangement was that the mother was to take the children from Marietta, Georgia to Oxford, Alabama, where they would be met and picked up by the father.

In May of 1972 there was another modification of the decree, also by agreement, whereby each child would, upon reaching age sixteen (16), be permitted to choose with which parent he or she wished to live. The father also was required to contribute $1,000 per year to the college education of each child.

The appellant father, in March 1973, filed a petition for modification (1) seeking a discharge from his obligation to support those of his children who had finished *147 high school but were not enrolled in college; (2) to permit him to select the college to be attended by each of his children; (3) to find that appellee mother was financially able to support the children who were living with her and to contribute to the expenses of those children attending college; and (4) to return a life insurance policy on his life.

The appellee filed an answer and then cross-petitioned wherein she asked mainly (1) for an increase in child support from $60 a month to $125 per month for each child; (2) for $2,500 per year toward the college expenses of each child; (3) payment of the travel expenses for each child when they visited their father; and (4) the payment of court costs and attorney’s fees.

On July 30, 1973 the trial court entered a decree in which appellant was ordered to pay toward the support of each of the three youngest children $100 per month until each of them finished high school, reached twenty-one years of age, or married, whichever occurs first. Should any of these three children enroll in college, appellant is required to contribute $1,800 per year toward their college expenses. This amount shall be paid for each child attending college and until he or she reaches twenty-one years of age; however, should either of the two girls, prior to reaching age twenty-one, marry during the time they are attending college, the $1,800 payment for that girl shall cease.

As to the oldest child who has completed high school, the court ordered appellant to pay $100 per month toward her college expenses until May 1, 1974, when she becomes twenty-one years of age. This money shall not be paid if the child is not enrolled in college, marries, or is working.

The appellant was also ordered to contribute $100 per month toward the payment of the college expenses of the next oldest child who had also graduated from high school, with the stipulation that he was to receive this money so long as he was attending college and until he reached his twenty-first birthday.

The court further ordered that the children were permitted to visit their father by public or private conveyance at his expense and that the mother was no longer required to transport them to Oxford, Alabama for delivery to the appellant.

The court then fixed a fee for appellee’s attorney at $750 and required appellant to pay one-half of it. He was also required to pay one-half of the court costs.

The motion for a new trial was denied and this appeal was taken from the decree of July 30, 1973.

The facts reveal that the parties to this case were married in 1952 and divorced in 1966. There were five children born of this union.

At the time of the divorce, the parties were living in Perry County, Alabama. The appellant was teaching at the University of Alabama, where he was an assistant professor of English earning a yearly salary of about $6,500. The appellee had at the time of the divorce completed the requirements for a masters degree. After the divorce she continued her pursuit of a higher education by acquiring a doctorate from the University of Alabama in physical education and recreation. During this time she was earning between $1,000 and $2,400 per year for teaching while continuing her studies.

At the time of the divorce the appellant owned eight hundred ninety-seven acres of land in Perry County, Alabama valued at about $36,000. There was also^a house on this property built during the marriage, valued at about $25,000.

The appellant testified that the property was mortgaged after the divorce for about $70,000. Since that time his indebtedness has been reduced to about $35,000, through the sale of timber in the amount of $55,000 *148 and the sale of a building and seventy-seven acres of land for $15,000.

At the time of the hearing on this last modification request, appellant testified that he was earning $11,500 from the University of Alabama as an assistant professor, but that he had just been promoted to an associate professorship and expected an increase in salary. The appellant did state that he had a heart condition that would limit his future earning prospects; however, the evidence did not reveal any earning loss. He said his expenses exceeded his income, with the major portion going to pay for the child support and interest on his indebtedness.

The appellee since the divorce has been employed at Kennesaw Junior College in Marietta, Georgia where her yearly income is now about $12,500. Appellee earned her doctorate after moving to Georgia. Appellee stated that she purchased a house in Marietta, Georgia for $35,000 and the mortgage is now $29,000. She said she has about $1,800 in a savings account and $200 to $300 in a checking account. She did say that her expenses exceeded her income.

Appellant says that the evidence is insufficient to support a finding of changed circumstances sufficient to warrant a modification of the original decree as to child support payments.

The trial court has the power and authority to modify the amount of a child support award where changed conditions warrant it. Whitt v. Whitt, 276 Ala. 685, 166 So.2d 413. The movant for a child support award modification has the burden of showing such changed circumstances as to authorize the relief sought. See Clarke v. Clarke, 47 Ala.App. 558, 258 So.2d 902. And the modification of a prior support award is mainly an exercise of judicial discretion and will not be overturned on appeal unless it can be shown that the court plainly and palpably abused that discretion. Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616.

A father’s duty to contribute to the maintenance of his minor children is not limited to his income but may extend to his entire financial assets and resources. Cowen v. Cowen, 259 Ala. 37, 65 So.2d 196. The original decree required appellant to pay $300 as support for his five children. This payment amounted to $60 per child.

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Bluebook (online)
306 So. 2d 13, 54 Ala. App. 144, 1974 Ala. Civ. App. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopper-v-hopper-alacivapp-1974.