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04/21/95 JAMES MORTON EHLERS v. NORMA EHLERS HOWELL

April 21, 1995

JAMES MORTON EHLERS
v.
NORMA EHLERS HOWELL



Appeal from Shelby Circuit Court. (CV-93-629).

L. Charles Wright, Retired Appellate Judge. All the Judges concur.

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

The parties were divorced in Mississippi in 1966. The mother was awarded custody of the two minor daughters. The father was ordered to pay $30 per week in child support.

In 1976 a URESA petition was filed in the Circuit Court of Montgomery County, alleging that the father was in arrears in his child support payments. That court determined that the father was $1,700 in arrears. The court further increased the child support payments to $200 per month beginning March 1977.

The father was not required to pay child support for the months that the children lived with him. The children lived with him from June 1977 until January 1978. The older daughter married in August 1980; the younger daughter married in May 1983.

In August 1993 the mother filed a petition in the Shelby County Circuit Court, alleging that the father was in arrears. Following oral proceedings, the trial court found the father to be $36,442 in arrears. The father appeals.

The father asserts that the trial court erred in finding him in arrears.

The mother testified that the father had failed to pay any child support from December 1976, the date the URESA order was entered, through May 1983, the date of the younger child's marriage. The mother testified that she was entitled to a judgment of $38,442. This amount included the $1,700 arrearage found in December 1976, $240 for the months of January and February 1977, and $200 per month until the younger child married in May 1983. The mother credited the father for the eight months that the children lived with him in 1977 and 1978.

The father testified that he made every child support payment, but he did not present any documentary proof to substantiate his claim. The father's present wife testified that she had sent checks to the mother and had been present when the father sent checks. She testified, however, that these checks did not total more than $2,000. She also did not have any documentation to substantiate her claim.

The father asserts that the mother did not meet her burden of proof because she failed to present any documentary evidence that she had not received the child support payments. The mother's whole contention at trial was that the father never made any child support payments. With such an allegation, it is virtually impossible to present more than oral testimony. As the mother noted in her brief, perhaps she "should have introduced an empty pocket book ...."

It is clear that the evidence presented by the parties was in direct conflict. The trial court heard the evidence, Judged the demeanor of the witnesses, and determined the disputed facts. The trial court, in fact, gave the father a $2,000 credit for the amount of child support that both he and his wife testified that he had paid. Under the ore tenus rule, we cannot say the determination was plainly and palpably wrong. Tanana v. Alexander, 404 So. 2d 61 (Ala. Civ. App. 1981). All of the monthly payments became judgments as they were unpaid when due. Cartron v. Cartron, 565 So. 2d 656 (Ala. Civ. App. 1990). The court merely calculated the total arrearage due and determined whether credits were due against the total. Landers v. Landers, 481 So. 2d 392 (Ala. Civ. App. 1985).

The father next asserts that the trial court erred in including the $1,700 arrearage from the 1976 order in its calculations. He insists that there is no method of determining when that arrearage was incurred. This amount was already a final judgment as of December 1976. He suggests that the 20-year statute of limitations for the collection of past-due child support would prohibit including that sum in the calculations.

The father's argument fails for two reasons. First, the father argued that he did not owe any child support because, he said, he had made all the payments. He stipulated, however, that should the trial court find that child support was due, the mother's estimate would be the correct calculation to use. Second, the father failed to plead the statute of limitations as an affirmative defense as required by Rule 8(c), Ala. R. ...


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