DeeAnn K. DUKE v. William W. DUKE II.
2010889
Court of Civil Appeals of Alabama
February 7, 2003
On Return to Remand August 22, 2003
872 So.2d 153
CRAWLEY, Judge.
William W. Duke II, pro se.
CRAWLEY, Judge.
DeeAnn K. Duke (“the mother“) and William W. Duke II (“the father“) were divorced by a judgment entered by the Montgomery Circuit Court on June 22, 2001. That judgment incorporated the terms of an agreement that the parties had entered into regarding custody of, and child support for, the parties’ two minor children. That agreement provided that the father would pay $700 per month in child support.
In the divorce judgment, the trial court stated that the parties had executed a CS-43 “Notice of Compliance” form, see
“Rule 32 will not be used because the [father] will pay $700 per month [in] child support, and this amount is more than would be provided under the Guidelines. Both [parties] feel that this is in the best interest of the child[ren].”
No appeal was taken from the June 22, 2001, divorce judgment.
On October 22, 2001, the father, acting pro se, petitioned the trial court for a modification of the divorce judgment. The father asserted that the $700 a month in child support he was obligated to pay pursuant to the divorce judgment was causing him financial hardship and that the amount exceeded more than 50% of his “disposable
The trial court set the matter for trial on March 5, 2002. On January 15, 2002, after the father had retained counsel, the father filed an amended petition for modification, claiming that, before the divorce judgment had been entered, the mother‘s counsel had falsely informed him that the amount he had agreed to pay ($700 per month) was only approximately $50 more per month than the amount that he would be required to pay upon application of the child-support guidelines and that, if he had been aware that the actual amount of child support provided by the guidelines was $441 per month, he would not have agreed to pay $700 per month.
In May 2002, following an ore tenus proceeding, the trial court entered a judgment reducing the father‘s monthly child-support obligation from $700 to $547, an amount in compliance with the child-support guidelines. The trial court found that, because the difference between the father‘s existing child-support obligation and the amount determined by application of the child-support guidelines exceeded 10%, a rebuttable presumption in favor of modifying the father‘s child-support obligation was created pursuant to
“the difference between the existing child support award and the amount determined by application of these guidelines varies more than ten percent (10%), unless the variation is due to the fact that the existing child support award resulted from a rebuttal of the guidelines and there has been no change in the circumstances that resulted in the rebuttal of the guidelines.”
(Emphasis added.)
The trial court expressly determined that the parties, in entering into the agreement incorporated into the divorce judgment, had not rebutted the presumption that the amount of the award that would result from the application of the child-support guidelines was the correct amount to be awarded because, the trial court reasoned, the parties had agreed upon an amount in excess of the guideline amount instead of, as is more customary, an amount lower than that established by the guidelines. In its May 2002 judgment, the trial court stated:
“Was this a rebuttal of the Guidelines? The Court does not believe that an agreement to pay more than the Guideline [amount] is a rebuttal of the [presumption]. If anything, it is a confirmation of the [presumption]. Hence, there is no need to show a change of circumstances.”
The mother timely appealed from the judgment modifying the father‘s child-support obligation. Initially, we note that a trial court may modify a child-support award upon a showing of a substantial and continuing change in circumstances. State ex rel. Shellhouse v. Bentley, 666 So.2d 517 (Ala.Civ.App.1995). “Factors indicating a change of circumstances include a material change in the needs, conditions, and circumstances of the child.” Id. at 518. The paramount consideration in making a child-support award is the best interest of the child. Balfour v. Balfour, 660 So.2d 1015 (Ala.Civ.App. 1995).
The trial court determined that this case was not governed by
The trial court acknowledged in the June 22, 2001, divorce judgment that the parties had entered into a fair agreement regarding child support, “the adequacy of which has been reviewed by the Court and/or a Notice of Compliance form filed in accordance with
Moreover, it is well settled that in a case where the parties agree to or stipulate to an amount of child support, the trial court may accept the filing of a CS-43 Child Support Guideline Notice of Compliance form in lieu of an otherwise required CS-41 Child Support Obligation Income Statement/Affidavit form and a CS-42 Child Support Guidelines form. Martin v. Martin, 637 So.2d 901 (Ala.Civ.App.1994).
Therefore, we conclude that the parties, by agreement, deviated from the guideline amount for the expressed reason that the higher amount was in the children‘s best interest, and we further determine that the stated reason was sufficient to rebut the presumption in favor of the
The trial court, in the May 2002 judgment, accurately depicts the circumstances that existed at the time of the entry of the divorce judgment and those changes in circumstances that each party has experienced since that time:
“The divorce [judgment] was entered in June 2001, at which time [the father] agreed to pay $700 per month in child support when the Guidelines would have called for $441. [The father] says that he knew he was paying more than the Guidelines amount but denies that he knew how much more. There is no definite evidence that he was made aware of the Guidelines amount. He ought to have done a better job in looking after his own interests.
“He now has a new wife who has custody of two children of her own. [The mother] has not remarried. Each earns somewhat more than they were earning in 2001.”
The father testified that he is currently married to a woman who has custody of her two children and that she is employed as a paralegal at a law firm. There was evidence presented indicating that the father‘s income had increased since the entry of the divorce judgment. However, no evidence was presented to indicate any changed circumstances that would entitle the father to a modification of his child-support obligation. In order to establish that he is entitled to a modification of the child support ordered in the original divorce judgment, the father must demonstrate a change in the circumstances that resulted in the rebuttal of the presumption in favor of the child-support guidelines. This he has not done.
The father‘s October 22, 2001, petition to modify the June 22, 2001, divorce judgment also alleged that the agreement requiring him to pay $700 in monthly child support was obtained by fraud or misrepresentation. The trial court made no findings of fact or conclusions of law with respect to that allegation because it had already modified the father‘s child-support obligation on another ground. When the trial court determined that the parties’ statement on the CS43 form was not a rebuttal of the
Because we have concluded that the trial court erred as a matter of law in its determination that the parties’ statement on the CS-43 form was not a rebuttal of the
REMANDED WITH INSTRUCTIONS.
YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ., concur.
CRAWLEY, Judge.
The parties have reached a settlement regarding all the issues that were implicated by our remand, and the trial court has approved the settlement. According to the terms of the approved settlement agreement, the father‘s monthly child-support obligation is $547.50, and the father will be allowed visitation with the minor children “at times mutually agreed upon by the parties.”
The judgment of the trial court is affirmed.
AFFIRMED.
YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ., concur.