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ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2007-2008

2060372


John Scott Wagner

v.

Joyce Keyton Wagner


Appeal from Houston Circuit Court
(DR-1998-928.02)

THOMAS, Judge.

John Scott Wagner ("the father") appeals from a judgment

of the Houston Circuit Court denying his petition to modify

his periodic-alimony obligation, increasing the amount of his

monthly child-support payments to Joyce Keyton Wagner ("the

mother") for the parties' younger child, and ordering the
father to make payments for the postminority educational
expenses of the parties' older child.  We affirm.

Procedural History

The father and the mother were divorced on August 30,
1999.  Pursuant to the divorce judgment, the mother was
awarded custody of the parties' two children and the father
was ordered to pay the mother $875 per month in child support
and $350 per month in alimony.  Soon thereafter, the father
petitioned the trial court to modify his child-support
payments due to his substantially decreased income.  The trial
court granted the father's petition on October 27, 1999, and
reduced the father's monthly child-support obligation to $510
per month.  Approximately five and a half years later, on
March 27, 2006, the mother filed a petition to modify child
support, seeking postminority educational support for the
parties' older child, who was 18 years old at the time, and,
based upon the father's income at the time, an increase in the
amount of support for the benefit of the younger child, who
was then 16 years old.  Concurrent with the petition to modify
child support, the mother also filed a contempt petition

alleging that the father had failed to pay periodic alimony in
accordance with the provisions of the divorce judgment.  The
father answered the mother's petitions, alleging that he was
current with his alimony obligations, that he should not be
responsible for postminority educational support for the older
child, and that an increased amount of child support for the
younger child was not warranted.  The father also filed a
counterpetition seeking to modify his periodic-alimony
obligation.

On November 2, 2006, the trial court conducted a hearing
on the parties' petitions, and on November 8, 2006, the court
entered a judgment dismissing t2he mother's contempt petition,
denying the father's counterpetition to modify alimony, and
ordering the father to pay $793 per month in child support for
the younger child.  The judgment also ordered the father to
pay 80% of the educational costs not covered by scholarships
for the older child. After filing a postjudgment motion to
alter, amend, or vacate the trial court's judgment, which was
subsequently denied, the father timely appealed to this court.

The father raises the following issues on appeal: 1)
whether the trial court erred in ordering him to pay increased
child support for the younger child in the absence of proof
that the child's needs had increased; 2) whether the trial
court erred in ordering him to provide postminority
educational support for the parties' older child; and 3)
whether the trial court erred in denying his counterpetition
seeking a modification of his periodic-alimony obligation.

Facts

Both of the parties' children encountered serious and
life-threatening health problems at a young age.  The younger
child was born with multiple birth defects, and the older
child was diagnosed with acute lymphocytic leukemia.  The debt
accumulated as a result of the medical expenses associated
with the treatment of the younger child resulted in the
parties' declaring bankruptcy; at the time they declared
bankruptcy, the parties' debt totaled approximately $1.6
million.  The costs of the medical treatment required for the
older child's leukemia further added to the parties' debt.
The father testified that, during this time of financial

struggle, the mother was not employed and earned no income to
help support the family despite his requests that she do so.

After the parties separated in 1998, the mother and the
two children moved in with the mother's parents in Dothan.
The mother testified that her father paid the mortgage and
utility expenses for the residence and that she did not assist
in paying those expenses.  After the divorce, the mother
obtained employment; at the time of the trial in this matter,
she was employed as a secretary at Southern Bone and Joint
Specialists.  She had been working there since 2001, and, at
the time of trial, she earned approximately $2,088 per month.

At the time of the parties' divorce, the father was
living in Brownsville, Texas, working at a grocery store and
earning approximately $1,625 per month.  The father testified
that, shortly thereafter, the grocery store closed down and
he went to work as a school teacher earning approximately
$1,100 per month. The father admitted to accumulating child

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