Whittington v. Whittington

267 So. 2d 472, 48 Ala. App. 680, 1972 Ala. Civ. App. LEXIS 421
CourtCourt of Civil Appeals of Alabama
DecidedOctober 4, 1972
Docket6 Div. 134
StatusPublished
Cited by1 cases

This text of 267 So. 2d 472 (Whittington v. Whittington) 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
Whittington v. Whittington, 267 So. 2d 472, 48 Ala. App. 680, 1972 Ala. Civ. App. LEXIS 421 (Ala. Ct. App. 1972).

Opinion

BRADLEY, Judge.

This is an appeal from a decree of the Circuit Court of Tuscaloosa County, in Equity, modifying a previous decree of said court as same related to the wife’s alimony.

The parties to this appeal were originally divorced on account of the husband’s adultery on October 4, 1969 after twenty-nine years of married life. The parties remarried on May 23, 1970 and divorced a second time on August 3, 1970, again for the adultery of the husband.

Incorporated in the second divorce decree was a separation agreement whereby the husband agreed to pay the wife $250.00' per month alimony, giving all household furnishings in their apartment to the wife, and maintain in force and effect for her benefit several insurance policies.

On September 8, 1971 the husband-appellee filed a petition seeking a modification of the 1970 divorce decree as same related to alimony for appellant. An answer was filed and a hearing was held on the merits of the petition. On December 20, 1971 a decree was entered modifying the decree by reducing the monthly alimony from $250.00 to $225.00 and by relieving the appellee of the payment of the premiums on most of the insurance policies he had been required to maintain for appellant’s benefit, which amounted to $144.33 per month. From said decree of modification appellant has appealed to this court.

[682]*682There are thirty-one assignments of error, the bulk of which question the insufficiency of the evidence to support the decree.

The Supreme Court in Colton v. Colton, 252 Ala. 442, 41 So.2d 398, said:

“. . . [A] decree fixing alimony in accordance with the parties’ agreement will not be modified except for clearly sufficient reasons, and application therefor should be subjected to a thorough investigation. Worthington v. Worthington, supra [224 Ala. 237, 139 So. 334]; Tidmore v. Tidmore, 248 Ala. 150, 26 So.2d 905.
“Modification of such a decree can only be ordered on proof of change of conditions of the parties, one or both, as the decree is final as to the conditions existing at the time, since existing conditions are presumed to have been considered upon the rendition of the decree. Morgan v. Morgan, supra [211 Ala. 7, 99 So. 185]; Ex parte Allen, supra [, 221 Ala. 393, 128 So. 801].”

Also see Johnson v. Johnson, 277 Ala. 126, 167 So.2d 688.

In the instant case the appellee sought a módifipation of a decree which had fixed alimony payments for the wife’s benefit in accordance with his agreement. The main basis for the petition for modification was a change in appellee’s financial condition since the divorce decree.

Appellee says that the change in his financial condition since the divorce decree is due mainly to his remarriage and increased indebtedness, due partly to the remarriage,' inflation and his job.

. The pertinent facts show that appellant had been married for about twenty-nine years and had one child — a daughter who was married, living away from home and not dependent on her parents for support. The appellant was .not gainfully employed but was attending the University of Alabama pursuing a degree in education. The appellee was and is the Business Manager for the University of Alabama Athletic Department and has been for sixteen years. Just prior to the second divorce appellee’s base salary was $15,200 per year, and for many years appellee had received a bonus each year, usually in January, equivalent to one month’s salary. The bonus was given only if the football team went to a bowl game. The football team has been to a bowl game every year since Paul “Bear” Bryant has been coach except the first year.

At the time the petition for modification was filed appellee’s salary was $15,500.00 per year, or $1,291.66 per month. This amount did not include a bonus. The deductions from that salary were:

Federal Income Tax ................... 200.00
State Income Tax .................... 30.79
Teachers Retirement .....51.67
Credit Union .................-........ , 57.00
University Club ..............4.00
Disability Insurance .........'..I.... 2.45
Insurance (owned by Mrs. W) ............ 16.20
Accident Ins. (owned by Mrs. W)......... 5,00
Term Life Ins. (owned by Mrs. W) ........ 20.75
Coaches Annuity ............. 29.16
FICA........................:....... 67.16

The teachers’ retirement- deduction inures to appellee’s benefit, as well as the credit union deduction which, is nothing more than a savings account. The FICA deduction of $67.16 per month is withheld on the first $7,800.00 of appellee’s salary and then said deduction ceases until.the, beginning of a new calendar year,. -.

Appellee’s net monthly-salary is. at'least $915.00 per month without including the bonus he received at the beginning of 1971. Including the bonus, the net monthly salary of appellee at the time of the filing of the petition for modification was approximately $1,000.00

The net income of appellee was more in 1971 than in 1970 when the last divorce was granted to his wife. So the financial condition of appellee at this point has improved.

Appellee counters by saying that he now has a new wife and a sizeable amount of indebtedness, i. e., $5,675.00, incurred sub[683]*683sequent to his last divorce. This indebtedness consists of $1,100 owed to Tuscaloosa Furniture Company for furniture; $425 to Sears, Roebuck and Company for household furnishings; and three personal loans amounting to $2,350. His car note with City National Bank is $1,800, on which he pays $100 per month. The record, however, reflects that his new wife is employed and earning $6,100 per year with assured increases in salary for the next two years.

However, the Supreme Court said in Colton v. Colton, supra:

“The fact that the husband has remarried, thereby increasing his expenses, is not such a change in condition of the parties as to justify a reduction of the alimony due the former wife.”

At the time of appellee’s last divorce his then wife — appellant—was unemployed, although she had a small independent income from oil leases and royalties on property received from her father’s estate amounting to around $300 per year except in those years when there was drilling on the leased lands, and then no rent money was received. This small amount is still being received by appellant, and, in fact, appellant received only $70 from this source in the year 1970.

At the time of the last divorce appellant had savings accounts in two banks. The amounts were $4,000 and $1,000. At the time of the filing of the petition for modification appellant had $5,000 in a single savings account in the Choctaw Bank of Butler, Butler, Alabama, which had been accumulated from inheritances from father and mother, rents and royalties, from six months’ employment with Dr. Brock, and money that appellee had given her over the years. Appellant stated that she did not know where appellee got this money, but that it did not come from their checking account.

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Related

Kirby v. Kirby
357 So. 2d 988 (Court of Civil Appeals of Alabama, 1978)

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Bluebook (online)
267 So. 2d 472, 48 Ala. App. 680, 1972 Ala. Civ. App. LEXIS 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittington-v-whittington-alacivapp-1972.