Lamar v. LamarLamar v. Lamar
This case involves the modification of a final divorce decree.
Robert S. Lamar, Jr. and Jane Turner Lamar had bеen married for over seventeen years and had two minor daughters when they were divorced on May 29, 1980. The final decree incorporated a settlement agreement. At the time of the divorce, Robert was a partner in а law firm. His 1980 earnings were over $78,000. His income from the firm dropped to $52,500 in 1981. Because of his marital difficulties and the resultant effect on his productivity, by mutual consent Robert left the law firm in December 1981. He briefly practiced alone in Birmingham and is now sharing a practice with four other attorneys in Jefferson County. Because of his reduced income, Robert filed a petition for modification of the divorce decree in March 1982.
The agreement incorporated in the divorce decree provided, inter alia, that Robert pay Jane $1,700 per month as alimony (with percentage increases in years in which his income exceeded $60,000), that he pay the premiums on certain life insurance policies, and that he pay reasonable expenses for her education to qualify her for еmployment. Robert’s petition for modification asked the court to relieve him of these payments or to substantially reduce them. Trial was had and judgment was rendered on May 22, 1982.
It was the opinion of the court that a permanent modification of the divorce decree would be premature where it was not clearly shown that Robert had suffered a permanent reduction in income. Although the evidence indicated his current income level was substаntially reduced from that at the date of the divorce, it was indefinite as to his future earning ability. The court found no evidence that his reduced income was willful or a result of an intent to avoid his obligations under the divorce decreе. Thus the court suspended, pending review, the following provisions of support: (1) payment of expenses for the private schooling of the two minor daughters; (2) payment of expenses of Jane’s education to qualify her for еmployment; (3) payment of alimony over and above the sum of $1,000 per month; and (4) payment of dental éx-penses of the minor children not covered by
A decree modifying a divorce decree is a final decree for purposes of appeal, evеn though it may be subject to modification in the future due to changed conditions. Aiken v. Aiken,
In the present case the trial court has simply modified the decree, recognizing that circumstаnces may change in the near future. The decree is final as to the present circumstances and is therefоre final for purpose of appeal. Miller, supra.
The first issue raised on appeal is whether the trial court abused its discretion by not granting Robert a permanent modification of the divorce decree. The modification оf the alimony and support provisions of a divorce decree is within the discretion of the trial court. Its judgment will be reviewed only where this court finds such an abuse of discretion as to render the judgment plainly and palpably wrong. Wier v. Wier,
We cannot say in the present case that the trial court has abused its discretion. Robert had entered into a new рractice just before instituting this action; testimony substantiates the finding that it is not yet clear whether Robert has suffered a permanent reduction in income. The court’s order is designed to give him some temporary relief from current finanсial pressures and allow him to establish himself in his new position. It is certainly within the broad discretion granted the court in such mаtters. Thomas v. Thomas,
In considering the amount of periodic alimony to be granted, there are several factors the cоurt may consider, including future prospects of the parties, age, sex, health, station in life, length of marriage. Nolen v. Nolen,
The final issue raised on appeal is whether the trial court erred in failing to reсognize that payment of certain life insurance premiums constituted periodic alimony and was therefore modifiable. There is nothing in the record to indicate the trial court failed to recognize the payments as suсh. It is not necessary for this court to consider this issue. If periodic, it was within the trial court’s discretion to deny Robert a reduction of those payments.
The judgment of the trial court is due to be affirmed.
The request of the wife for an award of attorney fees on appeal is granted in the amount of $500.
AFFIRMED.