183 So. 3d 985
Ala. Civ. App.2015Background
- Oscar D. Chunn, Jr. (father) and Mary K. Chunn (mother) divorced in 2010; the judgment (incorporating parties’ agreement) set child support and was later modified in October 2010 to $675/month.
- Father lost his job in July 2013, filed to modify child support (claiming a substantial and continuing change), and then unilaterally reduced payments to $250–$261/month; mother sought recalculation, contribution to expenses, and contempt for nonpayment.
- Trial court consolidated the actions, held an ore tenus hearing, denied both parties’ requests to modify support, found the father in contempt for failing to pay child support, calculated arrearages, ordered father to pay part of orthodontic expenses and awarded mother attorney’s fees.
- Key contested factual issues: father’s employment efforts and credibility; large and regular deposits into father’s credit-union accounts (father could not conclusively identify source); father took out-of-town trips and spent on entertainment while reducing child support; father’s unemployment benefits ran through January 2014.
- Trial court’s CS-42 form reflected a gross monthly income for father of $4,500 and guideline support of $718/month, but court did not modify support to that figure; appellate review considers whether trial court implicitly imputed income and whether contempt finding was proper.
Issues
| Issue | Father’s Argument | Mother’s Argument | Held |
|---|---|---|---|
| Whether trial court erred by denying father’s petition to modify child support (material, substantial, continuing change) | Father: lost job in July 2013, diligently searched for work, unable to pay prior support | Mother: father not credibly unemployed; substantial deposits and spending indicate income or support from wife; father failed burden to prove need | Court: affirmed — father failed to meet burden; ore tenus credibility findings support denial |
| Whether court implicitly/improperly imputed income to father as voluntarily unemployed or underemployed | Father: imputation improper because he sought work (relies on Tatum) | Mother: evidence supports finding of voluntary unemployment/alternative income sources; deposits support imputation | Court: treated imputation as plausibly implicit and upheld it (trial court could impute income given credibility and deposit evidence) |
| Whether trial court erred in finding father in contempt for failing to pay child support | Father: inability to pay is a defense; he reduced payments based on his own guideline calc and unemployment | Mother: father willfully failed to pay; had resources and chose other expenditures | Court: affirmed contempt finding for failure to pay child support (father failed to prove inability to pay) |
| Whether court erred in ordering father to pay part of orthodontic expenses and holding him in contempt for that | Father: divorce judgment required mother to notify him; absent notice, mother responsible; no contractual obligation triggered | Mother: sought equitable contribution; court found father liable | Court: reversed as to orthodontic award and contempt for that obligation — judgment contract language required notification, so father not bound |
Key Cases Cited
- Hall v. Mazzone, 486 So.2d 408 (Ala. 1986) (ore tenus rule: trial court’s credibility determinations are afforded a presumption of correctness)
- Pendegraph v. Pendegraph, 628 So.2d 849 (Ala. Civ. App. 1993) (decrees based on agreements should not be modified except for clear and sufficient reasons)
- Tatum v. Carrell, 897 So.2d 313 (Ala. Civ. App. 2004) (reversed imputation where evidence showed involuntary unemployment and good-faith job search)
- Carr v. Broyles, 652 So.2d 299 (Ala. Civ. App. 1994) (in civil contempt for nonpayment, inability to pay is a complete defense and shifts burden)
- Griggs v. Griggs, 638 So.2d 916 (Ala. Civ. App. 1994) (standard that modification of child support is discretionary and requires showing of material, substantial, continuing change)