Williams v. BraddyWilliams v. Braddy
The trial court divorced the parties in 1978. By agreement, the mother was to have custody of the parties’ minor child; the father was to pay $250 per month in child support, to provide health insurance coverage, to pay one-half of all noncovered medical expenses, and to contribute an unspecified amount to an educational trust fund. In June 1992, the mother petitioned the court, asking it to find the father in contempt for his alleged failure to pay child support and medical expenses and to contribute to the trust fund. The parties subsequently entered into a joint modification agreement, whereby the father would pay $600 per month child support and one-half of all medical and related services not covered by insurance; both parties would contribute $1,500 annually toward the educational trust account; and the father would pay $1,000 in attorney fees. The child support was based on the mother‘s monthly income of $1,138 and the father‘s monthly income of $4,000.
In September 1994, the father petitioned, pro se, to modify his child support obligation to suspend his payments until he regained employment, alleging that he had been unemployed since January 1994. The wife answered, alleging that no material change in circumstances had occurred to warrant a change or stay of child support. She counterclaimed, alleging that the father was in contempt of the 1992 agreement.
A hearing on the father‘s petition and the mother‘s counterclaim was held on March 25, 1995. During the hearing, the court asked the father if he wanted to amend his petition and stated that it would allow the father “to formally amend [the] petition to modify to include all aspects of the financial relationship” between the parties. The father‘s attorney stated that, based on the court‘s comments, the father “would formally amend [the] original petition filed pro se by [the father] to include any and all financial matters which were addressed in the 1992 petition.” The wife‘s attorney objected. After the hearing, the court, on April 11, 1995, denied the father‘s petition to modify, finding the father $9,411 in arrears in child support and $4,672.42 in arrears in contributions to the college trust fund; it awarded the mother $3,372.42 in attorney fees. The father then filed a
The mother presents three issues for our review: whether the court abused its discretion by considering evidence regarding the father‘s ability to pay and not considering the needs of the child, thereby reducing the father‘s child support obligation; whether the arrearage was erroneously calculated; and whether the court committed reversible error in failing to find the father in contempt.
Initially, we note that when ore tenus evidence is presented regarding child support or subsequent requested modifications of a child support order, a presumption of correctness attaches to a judgment based on that evidence. These matters rest soundly within the trial court‘s discretion, and rulings on them will not be reversed unless they are plainly and palpably wrong. Bobo v. Bobo, 585 So.2d 54 (Ala.Civ.App.1991).
Modifications of child support obligations are governed by
“MODIFICATIONS. The child support guidelines shall be used by the parties as the basis for periodic updates of child support obligations....
“(i) The provisions of any judgment respecting child support shall be modified only as to installments accruing subsequent to the filing of the petition for modification and only upon a showing of a material change of circumstances that is substantial and continuing.
“(ii) Application of the child support guidelines to the circumstances of the parties at the time of the filing of a petition for modification of the child support order, which results in less than a ten percent change in the amount of support due per month, shall be rebuttably presumed not to be a material change in circumstances.
(Emphasis added.) The rule currently provides:
“MODIFICATIONS. The child support guidelines shall be used by the parties as the basis for periodic updates of child support obligations.
“(a) The provisions of any judgment respecting child support shall be modified only as to installments accruing after the filing of the petition for modification.
“(b) There shall be a rebuttable presumption that child support should be modified when 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.
The amendment to Rule 32 has resulted in some confusion concerning when it is proper for a court to modify a child support obligation. We take this opportunity to dispel that confusion. Rule 32, before the amendment, stated that a modification could be had only when there was a material change in circumstances. The amended rule simply provides that a 10% variation creates a rebuttable presumption, not that a parent
We also feel obligated to respond to the assertions in the dissent concerning whether a court should consider evidence of the child‘s needs when reviewing a petition to modify. Although the guidelines were formulated using economic research on the cost of supporting children at various income levels, application of the guidelines is primarily a tool used to ensure the adequate support of a child and to ensure consistent treatment of persons in similar circumstances.
Our review of the record indicates that the court excluded from its consideration any evidence regarding the needs of the child. Specifically, the court stated, “I‘m going to base my decision in this case ... on provable financial resources available, irrespective of the need.” Clearly, the court abused its discretion; therefore, we reverse that portion of the judgment setting an amount of child support and remand the case for further proceedings for the court to consider evidence regarding the needs of the child.
The trial court may exercise its discretion in setting the effective date of a modification. Rogers v. Sims, 671 So.2d 714 (Ala.Civ.App.1995). We conclude that the court did not abuse its discretion in recalculating the arrearage, effective from the time the father filed his petition. However, because we are reversing the judgment and remanding the case for further proceedings as to the needs of the child, it follows that the arrearage recalculation must also be reversed and the case remanded for the trial court to determine if a child support modification is warranted and, if so, to then recalculate the arrearage.
Although the mother argues reversible error in allowing the father to amend his petition during the hearing, it was within the court‘s discretion to allow the amendment because it determined that the issues relating to reducing child support and to payments to the trust fund related to the original petition.
Regarding the contempt issue, although there was incriminating testimony regarding the father‘s spending habits, we cannot say that the court abused its discretion in failing to find the father in contempt. This court has held that the question whether a party is in contempt for nonpayment of child support is within the sound discretion of the trial court, and absent an abuse of that discretion this court will affirm. Stack v. Stack, 646 So.2d 51 (Ala.Civ.App.1994).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
ROBERTSON, P.J., and MONROE, J., concur.
CRAWLEY, J., concurs in part and dissents in part.
CRAWLEY, Judge, concurring in part and dissenting in part.
I respectfully dissent from the majority‘s reversal of the trial court‘s computation of the amount of child support according to
Thus, the schedule of basic child support obligations has a built-in need assessment factor. The majority‘s requirement that the court consider the needs of the child is contrary to
In Ex parte Head, 572 So.2d 1276 (Ala. 1990), the supreme court held that the word “shall” is mandatory when used in a rule promulgated by that court. In Martin v. Martin, 637 So.2d 901 (Ala.Civ.App.1994), this court held that the word “shall” in
After an amount of child support is determined in compliance with Rule 32, the trial court can, if it considers deviating from that amount, consider the special needs of the child. For example, when the parents’ combined monthly gross income exceeds the uppermost level provided for in the child support schedule, the trial court has discretion in determining the appropriate amount of child support. Anonymous v. Anonymous, 617 So.2d 694, 696 (Ala.Civ.App.1993). In that instance, the trial court should relate the amount of child support “to the reasonable and necessary needs of the child.” Anonymous, 617 So.2d at 696.
In this particular case, the combined monthly gross income of the parents changed between the date of the joint modification agreement in August 1992 and the date of the filing for modification in the instant case, resulting in a difference of more than 10 percent in the amount of child support. Therefore, the father met his burden and established a rebuttable presumption in favor of the modification of child support by presenting evidence of a 10 percent change in his child support obligation under the guidelines.
Once the father established the rebuttable presumption under
The majority states that the court excluded from its consideration any evidence regarding the needs of the child by reference to a statement of the trial court “`I‘m going to base my decision in this case ... on provable financial resources available, irrespective of the need.‘” Even if the majority were correct that this statement showed that the trial court disregarded the child‘s needs, the trial court did not commit reversible error. This quote occurred during questioning of the father by his attorney regarding college expenses. The trial court did not modify the husband‘s responsibility for payment of college expenses for the child, who was only 16 at the time of the trial, and any statement of the trial court‘s intention, even if error, was harmless. The testimony about the child‘s attendance at a private school, if not objected to by the mother‘s attorney, would have revealed information about the needs of the child. The mother‘s objection stopped further inquiry into this area, and the mother certainly cannot now allege error.
The trial court did not err in using the information in the child support obligation income statement/affidavit form (“income statement“) that the father filed with his petition to modify. The filing of the income statement is mandatory, and it is an affidavit. In Martin, this court stated:
“[I]f one party‘s statement of income form is disputed by the other party, then that issue can be resolved by competent evidence at the trial court level. Otherwise, the undisputed Income Statement/Affidavit would be part of the record for an appellate court to review on appeal regarding child support issues.”
Martin, 637 So.2d at 903 (emphasis added).
I do not believe the trial court erred by using the father‘s income statement to determine the father‘s average monthly income. The wife argues that she had no opportunity to cross-examine the husband about “his previously submitted income affidavit.” As discussed above, it is mandatory that the trial court use the information contained in the income statements. The mother contends that when the trial court, in considering the father‘s Rule 59 motion, decided to use the information in the father‘s income statement, she should have been given the opportunity to cross-examine the father on the accuracy of that information. The father‘s income statement was attached to the father‘s petition to modify, and the mother knew, or should have known, that the trial court was required to use that information in determining whether a modification was warranted. The mother, however, chose not to cross-examine the father about his income statement at trial; she, therefore, waived her right to cross-examine him later at the hearing on his post-trial motion.
Contrary to the mother‘s argument, the case of Ex parte Beckham, 643 So.2d 1373 (Ala.1994), is not controlling here. In Beckham, a psychological evaluation of the parties “was submitted to the court after the close of all testimony, and the court considered [the evaluation] without making the contents known to the parties and without allowing the parties the opportunity to cross-examine... or otherwise challenge [the] conclusions [of the court-appointed psychologist].” Beckham, 643 So.2d at 1374. In the instant case, the income affidavit was filed with the father‘s petition for modification and was available throughout the proceedings. The trial court did not err in applying the guidelines and modifying the amount of child support based upon the facts before it.