Summary
explaining that each monthly alimony obligation is “ ‘a fixed moneyed judgment, as to past-due installments, which can only be discharged as any other such judgment’ ” (quoting Rochelle v. Rochelle, 235 Ala. 526, 529, 179 So. 825, 828 (1938) )
Summary of this case from Johnson v. JohnsonOpinion
4 Div. 326.
October 9, 1969.
Appeal from the Circuit Court, Covington County, F. M. Smith, J.
Jenkins, Cole, Callaway Vance, Birmingham, for appellant.
When alimony is ordered paid in installments, each installment when due is to be regarded as a judgment taking effect as of the date due. Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825. Courts cannot modify installments of alimony which accrue before the petition to modify is presented. Epps v. Epps, 218 Ala. 667, 120 So. 150. A divorced wife's acceptance of less than the amount of monthly alimony with receipt as payment in full is not an accord and satisfaction and does not satisfy the terms of the decree. Wilson v. Wilson, 186 Ark. 415, 53 S.W.2d 990; Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825; American Life Ins. v. Williams, 234 Ala. 469, 175 So. 554, 112 A.L.R. 1215; Gottlieb v. Charles Scribner's Sons, 232 Ala. 33, 166 So. 685; National Life and Accident v. Karasek, 240 Ala. 660, 200 So. 873; American Life Ins. Co. v. Williams, 234 Ala. 469, 175 So. 554, 112 A.L.R. 1215; Brent v. Whittington, 214 Ala. 613, 108 So. 567; 1 C.J.S. Accord and Satisfaction § 29(2), p. 502; American Life Insurance Co. v. Williams, 234 Ala. 469, 175 So. 554, 112 A.L.R. 1215. An alimony decree may be enforced by the customary writs. Ex parte Whitehead, 179 Ala. 652, 60 So. 924. Evidence that a husband's physical condition has changed for the worse since decree does not justify reducing alimony in absence of a showing of substantial change in his financial condition. Young v. Young, 262 Ala. 254, 78 So.2d 265. Improvement in the financial condition of the husband, decrease in income of the wife and impairment of health of the wife are each reasons for an increase in alimony. Constantine v. Constantine, 274 Ala. 374, 149 So.2d 262, 18 A.L.R.2d 73; Silver v. Silver, 269 Ala. 517, 113 So.2d 921; Sims v. Sims, 253 Ala. 307, 45 So.2d 25, 15 A.L.R.2d 1246; Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89.
W. H. Baldwin, Andalusia, for appellee.
A release in writing given to a debtor by a creditor extinguishes all obligation of the debtor. Code 1940, Title 9, § 4; Grand Lodge Knights of Pythias of North America v. Williams, 245 Ala. 220, 16 So.2d 497; Homewood Dairy Products Co. v. Robinson, 254 Ala. 197, 48 So.2d 28, 22 A.L.R.2d 1059; Melvin v. Franklin Life Ins. Co., 274 Ala. 671, 151 So.2d 238. An allowance of alimony payable in installments for support may be modified to suit changed conditions. Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911; Aiken v. Aiken, 221 Ala. 67, 127 So. 819; Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89. A court empowered to modify an alimony decree may relieve party entirely, if circumstances require. Epps v. Epps, 220 Ala. 592, 126 So. 862. In making a determination as to whether or not an alimony award should be modified a court of equity should consider the present status of the parties, and inquire into their respective earning abilities and probable future prospects as well as all other circumstances. Walker v. Walker, 255 Ala. 599, 52 So.2d 505. Action of trial court in modifying alimony award because of changed circumstances is presumed to be correct, and will not be reversed unless there is an abuse of discretion. Wood v. Wood, 258 Ala. 72, 61 So.2d 436; Mockridge v. Mockridge, 278 Ala. 79, 175 So.2d 772.
The parties to this appeal were divorced by a decree entered October 27, 1947, later modified by decrees dated January 4, 1955 and July 9, 1959. The 1947 decree provided the appellee would pay $150.00 per month as support for a minor child and $100.00 per month as alimony to the appellant. The appellee was required to provide the child with a college education and upon exercise of that responsibility the monthly support payment of $150.00 would cease and the alimony would "automatically be increased to $200.00 per month".
As pertains to these monetary obligations of the appellee, the 1959 decree provided that "the sum of $200.00 per month remains in effect but shall not become effective until such time as the child reaches the point where he requires advanced education and enters college". The child entered college on September 2, 1962.
Following the 1959 decree the appellee made $100.00 payments to the appellant by checks bearing the legend "Endorsement constitutes acceptance of alimony in full to date". The amount was not increased to $200.00 in 1962, but continued at $100.00 until 1967 when writs of garnishment were sued out to collect the difference.
The appellee moved to dissolve garnishment writs obtained by the appellant to enforce collection of the arrearage. He also petitioned to modify the decree to eliminate the provision for alimony. The appellant petitioned to have the alimony of $200.00 per month increased to a more reasonable sum. The decree appealed from quashed the garnishment writs on the basis of no indebtedness and modified the decree to reduce the alimony payments from $200.00 monthly to $150.00.
The appellant contends each monthly alimony obligation of $200.00 became a judgment against the appellee to the extent of the difference of $100.00. We agree, and as said in Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825, "* * * it is a fixed moneyed judgment, as to past-due installments, which can only be discharged as any other such judgment."
Yet, the appellee contends and the trial court found that the appellant's acceptance without objection of the $100.00 checks with the provision as to endorsement, was a waiver of any unpaid alimony due when each check was presented for payment.
A judgment is the proper subject of an accord and satisfaction. Zorn v. Lowery, 236 Ala. 62, 181 So. 249. For payment of a lesser amount to operate as a satisfaction of a debt or judgment, there must be a bona fide dispute as to the amount due, or an independent consideration, or written agreement, or a surrender of the evidence of the debt. McCoy v. Wynn, 215 Ala. 172, 110 So. 129. The endorsement provision on appellee's checks met none of these requirements. There was no accord between the parties.
There can be no waiver without the intentional relinquishment of a known right. State Farm Mutual Automobile Ins. Co. v. Hubbard, 272 Ala. 181, 129 So.2d 669. Aside from the notation on the $100.00 checks, there was no mention between the parties of the requirement for alimony of $200.00. We find no evidence to support a finding that the appellant intended to waive her right to the full $200.00 per month.
The trial court found the appellant disabled from pursuing gainful employment and received testimony from the appellee, a practising physician, that he suffered from arthritis which would become progressively worse. As to appellee's financial condition, the evidence was that his income increased each year after 1959.
The health of both appellant and appellee is a proper fact for consideration as to whether there should be a modification to terminate, decrease, or increase provisions for alimony. But here the evidence is clear that the appellee's financial ability has steadily improved. This alone is not sufficient to justify an increase in the award to the appellant, but absent other compelling evidence this fact is the antithesis of a change in circumstances warranting a reduction from $200.00 to $150.00 per month. Johnson v. Johnson, 277 Ala. 126, 167 So.2d 688.
The decree appealed from must be reversed and the cause remanded for entry of a decree consistent with this opinion. With the parties before the court, the arguments as to the propriety of the garnishment procedure may be resolved by the court in a manner to enable the appellant to collect the amount to which she is due.
Reversed and remanded.
MERRILL, COLEMAN, BLOODWORTH, and MADDOX, JJ., concur.