Poh v. Poh
2010 Ala. Civ. App. LEXIS 333
Ala. Civ. App.2010Background
- Parents Poh divorced in 2005; mother has primary physical custody and father has visitation.
- Custody last modified in 2008; in 2009 mother sought suspension/modification of visitation and contempt; trial date set for Sept 2009.
- Mother moved to suspend visitation in May 2009; court granted interim suspension in July 2009; father counterclaimed for custody/modification and for child-support relief due to unemployment.
- Father testified he was laid off in May 2009; showed three June–August 2009 paychecks (<20 hours/week; approx. $800–$1,000/mo).
- Father claimed temporary unemployment and reduced income; proposed using $30,000 CD to cover costs; mother testified to no impediment to trips and supported Singapore plan.
- Trial court, ore tenus, granted father a child-support modification to $60/mo; denied custody modification; ordered each party to bear own fees; guardian ad litem fees awarded to mother.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in amending the judgment without a hearing. | Poh argues postjudgment hearing required under Rule 59(e). | Poh contends no hearing was necessary; mother invited hearing via Rule 59 motion. | Amendment without a hearing affirmed; no postjudgment hearing required for both parties not individually requesting one. |
| Whether the father's income reduction warranted modification of child support. | Poh asserts material change in circumstances due to unemployment justifies modification. | Poh contends mother failed to rebut and guidelines may be ignored if justified. | Record shows material change; reversal/remand required to apply Rule 32 guidelines or justify deviation. |
| Whether the trial court properly refused to impute income or to conclude voluntary underemployment. | Poh argues trial court should impute prior income if underemployment is shown. | Poh claims no voluntary underemployment; evidence shows involuntary layoff. | Trial court could not implicit find voluntary underemployment; remand to apply Rule 32 guidance. |
| Whether the court erred in not awarding primary custody to the father. | Poh seeks sole custody due to alleged neglect and unreliability by mother/husband. | Poh asserts best interest favors father with changed circumstances. | Custody denial affirmed; no abuse of discretion; evidence insufficient to support modification. |
| Whether contempts or fees were properly handled. | Poh argues contempt or costs should be awarded against mother for interference. | Mother contends court acted within discretion; fees allocated to each party; guardian ad litem fees to mother. | Contempt not proven; fees upheld; guardian ad litem fees awarded to mother; overall fee allocation affirmed. |
Key Cases Cited
- Rotar v. Weiland, 591 So.2d 893 (Ala.Civ.App.1991) (undisputed evidence of ability to pay requires reversal when trial court ignores it)
- King v. Barnes, 54 So.3d 900 (Ala.Civ.App.2010) (continued unemployment supports modification if undisputed; trial court must consider earning potential)
- Herboso v. Herboso, 881 So.2d 454 (Ala.Civ.App.2003) (imputation of income requires implicit or explicit finding of underemployment with factual basis)
- Lo Porto v. Lo Porto, 717 So.2d 418 (Ala.Civ.App.1998) (child support subject to modification based on changed circumstances and ability to pay)
- Gordy v. Glance, 636 So.2d 459 (Ala.Civ.App.1994) (child-support modification based on changed circumstances; paying ability matters)
- Cole v. Cole, 540 So.2d 73 (Ala.Civ.App.1989) (rejecting judgments preventing future modification of child support)
- Adams v. Adams, 21 So.3d 1247 (Ala.Civ.App.2009) (appellate deference to trial court in custody determinations)
- Ex parte McLendon, 455 So.2d 863 (Ala.1984) (standard for modifying custody and related relief)
- Ex parte Fann, 810 So.2d 631 (Ala.2001) (credibility and demeanor critical in custody disputes)
- Roye v. Hogg, 689 So.2d 131 (Ala.Civ.App.1996) (deviation from guidelines requires express justification)
- Roberts v. Roberts, 725 So.2d 980 (Ala.Civ.App.1998) (guidelines compliance or justification required in child-support rulings)