West v. Scott

HOLMES, Judge

(concurring in part, dissenting in part).

I agree with the majority’s holding on the first issue that the trial court’s order permitting the payment of the arrearage in installments cannot bar any other process for collection of judgments. Stewart v. Johnson, 401 So.2d 101 (Ala.Civ.App.1981); Osborne v. Osborne, supra.

I do not agree, however, that the trial court erred in ordering the increase in child support to be effective as of the date the arrearage is satisfied. In ordering the father to make increased child support payments, the trial court obviously concluded that the needs of the minor child had increased. Further, the trial court apparently determined that the father would have the ability to pay increased support after payment of the arrearage. I cannot find that the trial court erred in ordering the increased child support payments be delayed until the occurrence of a foreseeable, certain event, i.e., the satisfaction of the arrearage. Once the father has paid all past due support, the trial court’s order automatically provides for an increase in child support. This determination may obviate the necessity of another judicial hearing after the father has satisfied the arrear-age on whether there should be an increase in child support payments.

I do not believe our cases prevent a trial court from delaying an increase in child support until an arrearage has been satisfied. Our decision in Osborne v. Osborne, supra, stands for the proposition that a trial court cannot order a reduction in child support merely because the father has been ordered to make payments of past due support. In the instant action, there was no reduction in child support, but rather an increase in child support delayed until the arrearage had been paid. Under the facts of this case, I would find it to be within the trial court’s discretion to temporarily postpone the increased child support.

In view of the foregoing, I would reverse the trial court’s judgment on the first issue staying execution on the judgment as long as the father meets the installment schedule. I would, however, affirm the trial court’s order delaying the payments of increased child support until such time as the father satisfies the arrearage.