The parties were divorced in 1966. Custody of two children with support of $130.-00 per month was awarded to the plaintiff. Each party remarried. The defendant adopted the daughter of his second wife.
In July, 1974, petition was filed by plaintiff seeking determination of amount due in support and an order of contempt against defendant. The trial court found the sum due and unpaid to be $12,220.00. Defendant was not found in contempt, but was ordered to pay the amount due in payments of $100.00 per month. The court then modified the former decree by lowering future support payments to $50.00 per month.
Plaintiff presents three issues on appeal: (1) Interest should have been granted on the past-due support. (2) The court had no authority to permit payment in installments. (3) There were no changed circumstances supporting the reduction in support payments. We will discuss the issues presented in order.
It has often been stated by the Supreme Court of Alabama that accrued installments of alimony and child support are not subject to change.
Scott v. Scott,
“Interest is properly chargeable on an amount which is ascertainable by a legal standard. There was no error in allowing interest after default in paying deferred installments. (Citations omitted.)
“We think the court should proceed with the proper steps to be taken to collect the amount ascertained ... in the principal sum of $4,925 . . . and that interest should be added to each installment to the extent it was not paid, calculated until it is paid ...” (Emphasis added.)
We find the holding of Rochelle dispositive of the issue of whether interest should have been added in this case. Therefore, the court erred in not determining interest due according to the formula of Rochelle.
Our study of the second issue presented has raised some apparent inconsistencies in the case law of this state. Alabama through expressions in cases beginning with
Epps v. Epps,
To approve such payments is to effectively modify the original decree retrospectively. Contrary to the prohibition stated in Armstrong v. Green, supra, payment of such “judgments” in installments is inconsistent with their being “final judgments and collectible as other judgments.” This is the inconsistency in the cases we previously referred to above.' We know of no other judgment upon which execution may be prevented by direction of payment in installments.
We comprehend that a contempt of court may be purged by an order of payment of a sum upon past-due installments, but such order should not be a bar to collection of the judgment by execution or garnishment if assets of defendant are available to such process. It is not clear from the decisions of the Supreme Court that this issue has ever been precisely presented on appeal. We believe that the approval of payment of “final judgments” for alimony or support by installments has been merely dicta, and is not binding on this court. We therefore follow the rule that accrued installments of support are final judgments and may be collected as any other judgment. An order of the trial court permitting the payment of such judgments in installments is not a bar to any other process for collection of judgments. This must be the law unless the Supreme Court overrules Armstrong v. Green, supra, and other cases, and follows the rule of many other states which permit retrospective modification of judgments for alimony and child support. The prospect for such consideration by the Supreme Court would be a factor for seeking certiorari in this case.
The third issue presented in this case is whether the evidence shows a change of circumstances sufficient to support the modification of the original decree of support. We find it fails to do so.
The burden of showing changed circumstances is on the party seeking a modification of the original decree.
Clarke v. Clarke,
For error on all the issues presented by plaintiff, the judgment below is reversed and the case remanded.
Reversed and remanded.
