This is an appeal, by the former husband, from a decree granting the former wife's petition to modify decree of absolute divorce by increasing the amount which the
The parties were married in 1936 and lived together until 1946. They had no child. On June 29, 1946, the wife brought suit for divorce and alimony on the ground of cruelty. On July 1, 1946, the husband filed answer denying the allegations of the bill except as to ages, residence, and marriage, and waiving notice of taking testimony and submission.
On July 1, 1946, an agreement, signed by both parties and attested by two witnesses, was filed with the register. The agreement bears date June 28, 1946. The agreement recites that the wife has filed suit for divorce, that the husband has appeared in his own proper person, and further as follows:
On July 8, 1946, the court rendered decree granting absolute divorce and right to remarry. With respect to the agreement and allowance for the wife, the decree recites as follows:
We understand that appellant duly paid the lump sum of $1120.00. In December, 1952, the former wife filed a motion for rule nisi, alleging that the former husband was in arrears in the amount of $45.00 in weekly payments and praying that the payments be increased to $25.00 per week. In March, 1953, decree was rendered finding the former husband in arrears and ordering him to continue to make payments as previously ordered.
The instant proceeding was begun April 1, 1957, by the former wife's petition wherein
On October 6, 1959, an order of submission on the motion to modify was made, and on that date the former husband filed an answer denying "the material allegations" of the motion to modify the 1946 decree. He further alleged, on information and belief, that the former wife is living "in a state amounting to a common law marriage with another man, or is married to him by a ceremonial marriage, or in any event is openly living with such man under the same roof," and that she "engages in repeated and frequent bouts of intoxication and wastes in such manner" the sums previously ordered paid to her. The former husband prays to be relieved from further obligation to pay "alimony."
On October 27, 1959, after hearing testimony ore tenus, the court ordered that the "alimony" payments be increased to $30.00 per week and awarded an attorney's fee of $300.00 for the services of the former wife's attorney in the instant proceeding.
From that decree the former husband has appealed and assigns as error the action of the court: in requiring the former husband to produce in court a copy of his income tax returns for 1956, 1957, and 1958; in granting the petition for an increase in the alimony payments; in refusing to terminate the husband's obligation to pay alimony; and in allowing counsel fees to the former wife.
Appellant has remarried. He and his present wife made joint income tax returns for the years in question. Appellant argues that federal and state income tax returns are confidential and that the court erred in requiring appellant to produce copies of the joint returns for inspection by appellee's solicitor. Appellant argues that the tax returns are privileged under: § 6103, Title 26 U.S.Code; § 419, Title 51, Code of Alabama 1940; and § 5, Constitution of Alabama 1901.
We find no basis for holding that the constitutional prohibition against unreasonable searches and seizures forbids compelling a party to produce his books or papers, including copies of his income tax returns, when they are material and relevant to the determination of a justiciable issue properly before the court. If tax returns be privileged, they must be so because of a statute. The authorities on this question are divided. Baim & Blank, Inc. v. Bruno-New York, Inc., D.C.S.D.N.Y., 17 F.R.D. 346; Currier v. Allied New Hampshire Gas Co., 101 N.H. 205, 137 A.2d 405, 70 A.L.R. 2d 237, and cases cited in the annotation.
We adopt the view that copies of such returns are not privileged. This is not to be taken as approval of indiscriminate exposure of the contents of such returns when production of copies is required. Courts may and should make proper protective orders governing the use of and access to the contents of such returns. In the instant case, the record indicates that copies of the returns were physically present in court but were not admitted in evidence and were not copied in the transcript. We think this was proper in this case.
We are of opinion that neither federal nor state statute makes copies of the
The petition for modification recites that: "Respondent has since the rendering of said decree (of July 8, 1946) greatly increased his income and net worth." The answer filed by appellant "denied the material allegations" of the petition. Appellant thereby placed the question of his income in issue. The income tax returns shed light on that issue. In the motion to compel appellant to produce, appellee averred that she had been unable to obtain information concerning appellant's income because he was self-employed. We are of opinion that production of copies of appellant's income tax returns was compelled without error.
The fact that the returns were made jointly by appellant and his present wife does not alter the case. As we have undertaken to show, copies of the returns are not privileged. Whether the present wife's income be a material issue or not, the husband's income is a material issue. His return sheds light on that issue. The return is not made privileged or incompetent because it includes matter which may not be relevant to the issue. The record of a joint bank account wherein both husband and wife made deposits and withdrawals would be relevant to show the husband's financial status. We do not think such joint record would be privileged or inadmissible merely because it tended also to show the wife's financial status.
Appellant appears to concede that, where power to modify a divorce decree is reserved to the court, the court may, on a sufficient showing of changed circumstances, increase the weekly allowance to the wife. Appellant argues, however, that the court erred in increasing the allowance in the instant case for three reasons which we will discuss according to the order in which appellant has seen fit to argue them.
Appellant cites Alabama Power Company v. Talmadge, 207 Ala. 86, 93 So. 548; Carter v. Chambers, 79 Ala. 223.
The only witness who testified as to appellee's present health was the appellee herself. She said that she was in pretty good health when divorced, that she had been ill for the past four years, that during the past two years she had had hepatitis and chronic bronchitis, she was treated in a hospital for ten days about four years ago, she had been in the hospital each year since for about ten days, she has been taking medicine for liver trouble for four years, she also takes nerve medicine, she has been under the care of Dr. Brown for four years, she was confined to a hospital for an operation for about a week, the operation had been performed approximately one month before the trial, her trouble at the time of the hearing was hepatitis and bronchitis, that she is some better but still not well and could not rest at night. Dr. Brown was not called to testify. The appellee did not produce any records to show her expenditures for medicine which, she said, cost twenty dollars per month.
The testimony was heard ore tenus by the trial court. He must have believed appellee's testimony. While it is not as satisfactory as the testimony of the physician might have been, and while appellee's oral statement might have been re-enforced by the production of records to show her expenditures for medicine, we do not think that her testimony is insufficient to support the decree rendered. Under the familiar rule, the decree, being based on testimony taken ore tenus, will not be reversed unless plainly and palpably wrong. Appellant's argument here goes, not to the sufficiency of the evidence, but to its credibility, which was a question for the trial court.
We are of opinion that the decree is not due to be reversed because appellee failed to call her physician to testify and failed to produce documentary evidence to support her statement as to what medicine cost her.
Appellant argues that the court erred in modifying the former decree because the agreement of the parties at the time of divorce was a property settlement and that, under the agreement, "support payments may not be increased," citing Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911.
In Sullivan, supra, the husband and wife made an agreement which provided, among other things, that the husband would pay to the wife, for and during her natural life, $200 per month for her entire support and maintenance, and that the husband would deposit sufficient securities with a trust company to yield the monthly sums. The agreement further recited that the payments therein provided "* * * are in lieu of any alimony or other charges for the support and maintenance * * *." of the wife and that the husband shall be free of the right of dower of the wife in and to any property of the husband. The decree did not reserve to the court the power to modify. After the remarriage of the wife to another man, the husband filed petition to be released from making further monthly payments. On appeal from decree overruling demurrer to the husband's petition to terminate the payments, this court held that the agreement was a property settlement and not "* * * for alimony as such. * * *" and reversed the decree overruling the demurrer. This court rendered a decree dismissing the husband's
Although the instant agreement and decree follow those in Sullivan in certain respects, they differ in other respects, and we are of opinion that, in the instant case, the provision for weekly payments was for the support and maintenance of the wife and not for a division of property. The following differences between the Sullivan case and the instant case lead us to that conclusion:
In Sullivan, the agreement recites that the payments were for the wife's "entire support and maintenance." In the instant case, the decree recites that the husband is "to pay weekly to the respondent, as permanent alimony toward her maintenance and support."
In Sullivan, the husband was required to place in trust "sufficient securities to yield the monthly sums." In the instant case, no deposit of property was required or contemplated.
In Sullivan, the agreement recites that the payments to the wife were to continue "for and during her natural life." In the instant case the agreement recites that the husband agrees to pay to the wife "until her re-marriage or death unless he * * * should sooner die."
In the agreement in Sullivan, no reference is made to the future earnings of the husband. Payment is to be assured by deposit of securities regardless of husband's earnings or other income, or death. In the instant agreement, it is stated that the sum to be paid weekly "has been arrived at based on the weekly earnings of" the husband; and, if his earnings decrease, the payments are to be "proportionately reduced."
In Sullivan, the decree did not reserve power to modify. In the instant case, the decree retains jurisdiction to make "different orders * * * with reference to the amount and manner of payments."
We hold that the provision for weekly payments in the instant decree was not for a division of property, but was an "allowance of alimony payable by installments for the support of the wife" and could be modified by the court even though more than thirty days has passed since the date of the decree.
Appellant argues that the decree was erroneous because the evidence offered by the appellee is insufficient to warrant modification of the decree, citing Tidmore v. Tidmore, 248 Ala. 150, 26 So.2d 905; and Worthington v. Worthington, 218 Ala. 80, 117 So. 645.
We take it that appellant cites Worthington v. Worthington, supra, for the statement in that opinion to the effect that the wife is not entitled to an additional allowance merely because the husband has come into possession of additional property by inheritance since the time the allowance was fixed in the original divorce decree. We are not disposed to take issue with that proposition but are of opinion that the evidence here shows a change in circumstances other than a mere increase of the husband's income and ability to pay. We have noted above certain parts of appellee's testimony which support a finding that her health had been good at the time of divorce and
The evidence indicates that appellant's income was not less than fifteen thousand dollars per year for 1956, 1957, or 1958.
As we have already noted, this decree is not to be reversed for insufficiency of the evidence unless the decree is plainly and palpably wrong. We are not persuaded that such is the case and are of opinion that appellant's argument based on insufficiency of the evidence is not well taken.
As we have noted above, appellant filed answer charging appellee with conduct which appellant relies on to relieve him of the duty of making further payments. The only testimony in support of those allegations was that of a detective heard ore tenus by the trial court. Credibility of this witness was a matter for the trial court to decide, and error will not be predicated on the court's evident failure to give credit to this testimony.
Appellant argues that the $300.00 allowed for attorney's fee is excessive and that appellee is not entitled to counsel fees at all in this proceeding because all her rights to fees were incorporated in the contract made by appellee and appellant at the time of divorce.
We have already said that the decree made at the time of divorce did not exhaust the power of the court to modify the decree. It follows then that the power to allow additional attorney's fees was not exhausted. Sims v. Sims, 253 Ala. 307, 45 So.2d 25, 15 A.L.R.2d 1246.
This proceeding was begun April 1, 1957. The record indicates one or more hearings in connection with appellee's motion to require production of income tax returns and appellant's opposition to that motion. Testimony, on the merits, was taken October 6, 1959, and the decree appealed from was rendered October 27, 1959. These matters, together with testimony introduced on the hearing to prove the value of the services rendered, lead us to conclude that the allowance is not excessive.
Appellee asks in brief that an additional fee be allowed by this court for services on this appeal. On full consideration of the proceedings here, we are of opinion that the fee allowed in the trial court is sufficient to compensate counsel for his services in this court also.
Error not being shown, the decree is due to be and is affirmed.
All the Justices concur.