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04/14/95 JOHN THOMAS TERRY v. MARTHA S. MCWHORTER

April 14, 1995

JOHN THOMAS TERRY
v.
MARTHA S. MCWHORTER TERRY



Appeal from Montgomery Circuit Court. (DR-90-291). Sally Greenhaw, TRIAL JUDGE.

Application for Rehearing Dismissed May 26, 1995, . Released for Publication October 2, 1995.

Thigpen, Judge, Robertson, P.j., and Yates, Monroe, and Crawley, JJ., concur.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

This is a post-divorce case.

The parties divorced in August 1990, and this court has previously affirmed the trial court's divorce judgment, particularly regarding the matter of the father's support obligations. See Terry v. Terry, 581 So. 2d 1114 (Ala. Civ. App. 1991). The litigious nature of these parties is exhibited by the numerous post-divorce proceedings included in the record; however, only those matters pertinent to this appeal will be discussed.

In November 1991, the father again sought a modification to reduce his child support obligation of $1120 per month. He alleged that he had been unemployed since December 1990, and that he had not been able to find suitable employment. After other proceedings, delays, and temporary orders, the trial court received additional ore tenus evidence. It ultimately entered an order in June 1994, which, inter alia, reduced the father's child support obligation to comply with the guidelines of Rule 32, Ala.R.Jud.Admin., based upon his reemployment at a lower salary, and ordered the father to be responsible for one-half of the costs of his children's health insurance and of their orthodontic treatment. Additionally, the trial court relieved the father, effective June 1, 1994, of his obligation for the second mortgage payments, which had been ordered as additional family support. A judgment favoring the wife for an arrearage in that regard was ordered. The father appealed.

The father contends that the trial court erred in ordering him to pay one-half of the amount of the health insurance premiums and of the orthodontic costs for his children. He also contends that the trial court erred in relieving him of the second mortgage payments effective June 1, 1994, rather than November 1991, the date he filed this petition to modify, or in February 1992, when the trial court temporarily reduced his child support obligation of $1120 per month to $100 per week. He argues that he suffered a substantial and continuing material change in circumstances before June 1, 1994, and that his obligation for the second mortgage should have been modified earlier.

The divorce judgment, which is contained in the record, expressly states:

"In accordance with the stipulation of the parties, the [father] shall continue to maintain medical and dental insurance covering the parties' minor children during their minority, and each party shall be liable for and shall pay one-half of all medical and dental expenses not covered by said insurance. Dental expenses shall specifically be interpreted to include orthodontic treatment."

The record discloses that after the father failed to meet his obligation to provide insurance coverage for his children, the trial court ultimately ordered him to reimburse the wife for one-half of the costs she incurred when she purchased insurance for the children's benefit. The trial court also ordered the father to pay one-half of the costs of the orthodontic expenses for his children.

The father argues that his obligations regarding insurance and payment of one-half of the costs of medical and dental expenses not covered by insurance were suspended during his unemployment. In particular, he references an order of February 1992, which provided him partial relief by temporarily reducing his child support payments from $1120 monthly to $100 weekly, pending further orders. That order expressly states that "immediately upon employment, the [father] shall enroll the minor children as beneficiaries under any health insurance plan which is offered by said employer." The order is silent, however, regarding the father's duty to provide insurance and his obligation to pay one-half of the medical and dental expenses that were not covered by insurance during his interim of temporary unemployment. There is simply no indication in the record that the father was ever relieved of those obligations, temporarily or otherwise.

Although the record contains numerous pleadings and orders, our review of the record reveals nothing to modify the original order regarding the father's responsibility for insurance and one-half of the dental expenses not covered by insurance -"specifically ... orthodontic treatment." The father offers nothing to support his position that he has no obligation to pay for orthodontic treatment. On the contrary, the divorce judgment expressly refers to the parties' stipulation regarding the father's specific obligation and responsibility for orthodontic treatment. Nothing in the record indicates that those provisions of the divorce judgment have ever been modified, and the father offers nothing more than his argument to show otherwise.

A trial court has broad discretion in support modification proceedings, and its judgment in such a proceeding, when based on ore tenus evidence, is clothed with a presumption of correctness. Absent an abuse of discretion, the judgment will be affirmed. See Stewart v. Kelley, 587 So. 2d 384 (Ala. Civ. App. 1991); Conradi v. Conradi, 567 So. 2d 364 (Ala. Civ. App. 1990). See also, Kieltyka v. Kieltyka, 541 So. 2d 29 (Ala. Civ. App. 1989), and Waltman v. Waltman, 480 So. 2d 594 (Ala. Civ. App. 1985). Our review of the record discloses no abuse of discretion in the court's ordering the father to pay one-half of the costs of the insurance and unpaid medical and dental expenses of his children. It appears that the trial court was simply ordering the father to meet the obligations previously ordered. A trial ...


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