Hein v. Fuller
93 So. 3d 961
Ala. Civ. App.2012Background
- Mallette Hein and Abel Fuller married in 1999 and separated in 2004; mother moved to Ontario, Canada, with twins born in 2005.
- Father filed for divorce in Alabama in 2005 and sought a paternity/initial custody and support determination; mother appeared and challenged jurisdiction over custody/support.
- Alabama divorce judgment (2005) dissolved the marriage but did not address custody or support; Canadian judgment (2005) ordered mother custody and father no visitation; Canadian judgment later voided in Alabama due to service issues.
- Mother attempted to register the Canadian judgment twice; in 2007 an Alabama court declared it void, and mother did not appeal.
- In July 2009 mother sought modification in Alabama, claiming jurisdiction to resolve custody and support; father counterclaimed for visitation.
- Trial court, after January 2011 trial, issued March 1, 2011 judgment awarding joint legal custody, mother physical custody, father visitation, and child support of $1,254.47/mo (retroactive to April 23, 2009); arrearage $26,343.87; health-insurance duties split; health-insurance premium later cut from the calculation in June 2011, reducing support to $929.84/mo and arrears to $19,526.58; mother appealed.]
- The mother later moved for postjudgment review; the case was appealed to the Alabama Court of Civil Appeals to determine jurisdiction and merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alabama has custody jurisdiction under the UCCJEA. | Canada was the children’s home state at filing; Alabama lacked home-state basis. | Alabama could exercise jurisdiction under UCCJEA international provisions; Canada’s custody law not violating human-rights.; §30-3B-105 treats foreign country as state. | Alabama lacked subject-matter jurisdiction for custody; Canada (home state) controlled. |
| Whether Alabama had jurisdiction to issue the child-support order under UIFSA. | Alabama could issue support order where no other order was recognized and mother resided in Alabama/another state. | Canada order not recognized; UIFSA allows Alabama to issue if no other recognized order; mother resides in another state. | Alabama had jurisdiction to enter child-support order. |
| Whether health-insurance premiums could/should be included in child-support calculation. | Rule 32 requires including actual health-insurance premiums for the children. | Deviations are allowed when unjust; premium coverage for others should not be fully attributed to noncustodial parent. | Deviating from guidelines without proper written findings was error; health-insurance premium should be included; remand for recalculation. |
| Whether the trial court properly imputed income to the mother. | Mother claimed she cannot work due to scoliosis; imputing income was improper. | Trial court properly assessed credibility and imputing income is within discretion. | Imputation supported by trial record; no reversal on this basis. |
| Whether retroactive child support was calculated correctly. | Retrospective period should reflect the date of birth or 2009 income, whichever shorter; used wrong income figures. | Use of trial-year income was appropriate under § 30-3-114; needs proper Rule 32 application. | Retroactive award calculation was improper; remand to use 2009 income and proper guidelines. |
Key Cases Cited
- Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998) (retroactive support principles; pre-1994 statutes recognized retroactive support)
- Preda v. Preda, 877 So.2d 617 (Ala.Civ.App.2003) (deviation from guidelines requires factual basis on record)
- G.B. v. J.H., 915 So.2d 570 (Ala.Civ.App.2005) (imputation of income allowed based on evidence of employment potential)
- C.J.L. v. M.W.B., 868 So.2d 451 (Ala.Civ.App.2003) (consent cannot create jurisdiction; lack of subject-matter jurisdiction voids judgment)
- DeYoung v. DeYoung, 853 So.2d 967 (Ala.Civ.App.2002) (guidelines deviation requires written findings on the record)
- Thomas v. Norman, 766 So.2d 857 (Ala.Civ.App.2000) (Rule 32 guidelines; health-insurance premium treatment in child-support)