178 So. 3d 861
Ala. Civ. App.2014Background
- Father (Orrin C. Hudson) petitioned to modify child support and terminate $100/month periodic alimony, claiming disability and two children reaching majority; mother answered and counterclaimed for unpaid support, health expenses, and household/mortgage expenses.
- Final hearing (ore tenus) held; trial court found father voluntarily underemployed, imputed $4,000/month income, terminated support only for the two adult children, and ordered $662/month for the minor child. Trial court denied termination of periodic alimony.
- Trial court found father in contempt for failing to pay children's health-care expenses and household/former-marital-residence expenses, awarding mother large past-due sums and $850/month toward the mortgage until the youngest child is 18.
- Father moved to alter/amend; motion denied. Father appealed, challenging income imputation, support calculation, alimony termination, jurisdiction over counterclaims, bankruptcy discharge of mortgage obligation, contempt for inability to pay, and attorney-fee award.
- On rehearing, father argued he had court orders showing other child-support payments; appellate court noted those orders were not introduced at trial and thus could not be credited.
Issues
| Issue | Father’s Argument | Mother’s Argument | Held |
|---|---|---|---|
| Imputation of income for child-support | Social Security/SSI award (disability) precludes imputation; court erred imputing $4,000/month | Trial court/court record show father capable of earning ~$4,000; evidence of prior earnings and ongoing benefits/support for living | Affirmed: trial court properly found voluntary underemployment and permissibly imputed $4,000/month based on ore tenus evidence |
| Effect of imputed income on SSI benefits | Imputation will reduce/deny federal SSI; court should not impute above $1,039/month | No authority showing state imputation binds SSA or that imputation is prohibited | Argument waived for lack of authority; no reversible error found |
| Credit for child-support paid for other children | Father pays support for other children and Rule 32(B)(6) requires deduction from gross income | Mother: father failed to prove payments were pursuant to court orders | Affirmed: father failed to introduce orders at trial; payments not credited |
| Termination of periodic alimony | Father lacks ability to pay due to disability; alimony should be terminated | Mother still needs $100/month; father retains ability to earn income | Affirmed: no palpable abuse of discretion—trial court properly refused to terminate alimony |
| Jurisdiction over mother’s counterclaims (filing fee) | Counterclaims invalid because mother did not timely pay filing fee | Trial court retained jurisdiction; Espinoza allows counterclaim to vest even if fee unpaid at filing; court may stay until fee paid | Affirmed: father waived nonjurisdictional objection by not raising below; court had jurisdiction |
| Mortgage/ bankruptcy discharge defense to contempt | Father’s bankruptcy discharged mortgage obligation; contempt and award improper | Father did not introduce bankruptcy orders to show discharge; trial court record insufficient | Affirmed: issue not preserved for appeal due to lack of record evidence |
| Inability to pay as defense to contempt | Father lacked ability to pay obligations | Trial court found father had ability to earn $4,000/year; inability-to-pay not proved | Affirmed: inability-to-pay defense rejected; contempt upheld |
| Attorney’s fees for contempt counterclaims | Fee award unsupported—no testimony on reasonableness | Trial court found contempt and was provided itemized time statement; statute authorizes fees | Affirmed: fee award within trial court discretion |
Key Cases Cited
- Camp v. Kenney, 673 So.2d 436 (Ala. Civ. App. 1995) (Full Faith and Credit principle described)
- Espinoza v. Rudolph, 46 So.3d 403 (Ala. 2010) (failure to pay filing fee does not deprive trial court of jurisdiction over counterclaim; court may stay proceedings until fee paid)
- G.B. v. J.H., 915 So.2d 570 (Ala. Civ. App. 2005) (standard for imputing income to voluntarily underemployed parent)
- Clements v. Clements, 990 So.2d 383 (Ala. Civ. App. 2007) (trial court discretion to impute income)
- McKenzie v. McKenzie, 568 So.2d 819 (Ala. Civ. App. 1990) (standard for modifying periodic alimony requires material change in circumstances)
- Carr v. Broyles, 652 So.2d 299 (Ala. Civ. App. 1994) (inability to pay is a defense to contempt; burdens of proof discussed)
- Glover v. Glover, 678 So.2d 174 (Ala. Civ. App. 1996) (authority for awarding attorney’s fees after contempt finding)
- White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042 (Ala. 2008) (appellate briefing rules; arguments without authority may be waived)