You may remember the unsatisfactory way the Alabama Court of Civil Appeals mumbled its way through the McMorrough case; you can read about it here and here. The appeals court revisited the issue of the required burden of proof for contempt in Sexton v. Sexton, Case No. 2040910 (Ala. Civ. App. January 6, 2006). The facts were less challenging than those in McMorrough, and so is the appeals court’s decision.
Sexton is a post-divorce case involving a claim for an alimony arrearage. The husband admitted that he owed about $19,000 to the wife but offered evidence that he was unable to pay the money. After a hearing, the Elmore County Circuit Court found the husband in contempt, set his arrearage at $18,919.12, denied the husband’s petition for modification of alimony, and ordered the husband to jail until he paid the arrearage. The court then ruled the husband could remain free pending his appeal.
The appeals court had little trouble finding error in the trial court.
We conclude that the husband presented sufficient evidence indicating that he is unable to pay the court-ordered amounts. Thus, the burden shifted to wife to prove beyond a reasonable doubt that the husband has the ability to pay the court-ordered amounts. Summers v. Summers, 661 So. 2d at 244-45. The wife failed to present any evidence to demonstrate that the husband had the financial means to pay the court-ordered amounts and to purge himself of the contempt. Consequently, the wife failed to meet her burden of proof. Summers v. Summers, 661 So. 2d at 245. Therefore, we conclude that the trial court erred in finding the husband to be in contempt and ordering him incarcerated until he purged himself of the contempt. Accordingly, the trial court’s judgment as to this matter is due to be reversed.
The appeals court also found error in the trial court’s refusing to modify the existing alimony.
Based on the evidence presented to the trial court and already detailed in this opinion, we conclude that a material change in circumstances had occurred in the husband’s financial condition and that the trial court abused its discretion in failing to modify the husband’s periodic-alimony obligation. Accordingly, the trial court’s judgment as to that matter is reversed, and the cause is remanded for the trial court to reexamine the wife’s present financial needs in light of the husband’s present financial ability to meet those needs and to consider awarding the wife a lesser amount of periodic alimony. Morgan v. Morgan, 582 So. 2d 1147 (Ala. Civ. App. 1991).