Opinion
6 Div. 726.
January 16, 1941.
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
Smith, Windham, Jackson Rives, of Birmingham, for appellant.
The trial court erred in basing its denial of appellant's petition for an increase in the amount to be paid her by appellee for her support, on the fact that appellee had taken on the additional responsibilities of another marriage. Aiken v. Aiken, 221 Ala. 67, 127 So. 819; Rood v. Rood, 280 Mich. 33,
273 N.W. 337; Humbird v. Humbird, 42 Idaho 29, 243 P. 827. The husband's earning capacity should be considered in awarding alimony. So, also, the fact that the wife has no property and her ability to work has lessened. Plunkett v. Plunkett, 223 Ala. 400, 137 So. 24. In fixing the allowance the husband will not be allowed to profit by his own wrong, in view of his estate and the dower interest the wife would have been entitled to. Phillips v. Phillips, 221 Ala. 455, 129 So. 3. While much is left to the discretion of the trial court in the matter of alimony, this discretion is judicial and not arbitrary and is subject to review on appeal. Thomas v. Thomas, 233 Ala. 416, 172 So. 282.
Gordon Abele, of Birmingham, for appellee.
The court did not err in denying the prayer of appellant for an increase in alimony, nor in taking into consideration, along with all the other facts and circumstances of the parties, appellant's remarriage. The decree was not based upon such remarriage alone, but upon all the facts and circumstances. Ortman v. Ortman, 203 Ala. 167, 82 So. 417; McWilliams v. McWilliams, 216 Ala. 16, 112 So. 318; Jones v. Jones, 95 Ala. 443, 11 So. 11, 18 L.R.A. 95; Phillips v. Phillips, 221 Ala. 455, 129 So. 3.
This is a petition filed by appellee, the former husband of appellant, to modify a decree of alimony incidental to a decree of divorce rendered October 24, 1935, in which appellee was ordered to pay appellant $25 a month as permanent alimony. This amount has been regularly paid.
At the time that decree was rendered, they had a son seventeen years old. So that he is now twenty-two years of age, and has completed his education and is self-supporting. She and her son have lived with her father, and they constituted the only members of the family. She has been, and still is, keeping house for him, and he provides her board and lodging, and she uses the $25 a month to supply other needs.
The basis of the claim of appellee for a reduction in the amount of alimony is the fact that the child has reached his majority, and does not have a further claim on that amount for support. As against that contention appellant claims, and so petitioned the court, that she is entitled to a larger allowance on account of her poor health and need of medical care and medicine, and because appellee is earning more than twice as much as he did when the decree was rendered. The court refused to enlarge the allowance at her instance or to decrease it at his instance. She prosecutes the appeal.
She is apparently well cared for in her father's home and doubtless well earns her board and lodging. The $25 a month barely is sufficient to supply her medicine and clothes; but she gets by with it as she has done for five years.
True he earns more now than he did when the divorce was granted, but he has married again, and while that is not justification for reducing the alimony allowance (17 Am.Jur. 476, section 611, note 3, also page 500, section 656; Myers v. Myers, 62 Utah 90, 218 P. 123, 30 A.L.R. 79), it is not improper to consider it upon the question of her claim for a larger allowance on account of his larger earnings. The two conditions must be considered together as constituting a change in his circumstances.
We agree with the trial court that perhaps the change on the one hand, that the child has reached his majority, is affected by the further change that appellant's needs are more on account of her physical condition. Also that the increase in his earnings are affected by his remarriage, and the further fact that he recently had an automobile accident, resulting in much expense and his physical impairment, causing him to go into debt, though not reducing his earnings. His second wife also has a daughter attending Judson College, but this is not at his expense. The wife teaches school and earns $120 a month. She and appellee are buying a home for which they are paying $67 a month.
The evidence was all taken before the judge in open court, and he found and decreed that the amount of alimony as originally fixed was equitable under all the circumstances, and denied both petitions and refused to modify the allowance of $25 a month. We see no reason to disturb that finding and decree. It is affirmed.
Affirmed.
GARDNER, C. J., and BOULDIN and LIVINGSTON, JJ., concur.