This is an appeal from Montgomery County, Alabama regarding child support in the case of Farquhar. The parties were married and originally divorced in 2011. The father was ordered to pay child support in the amount of $1,050 per month to the mother. It does not appear that an Income Withholding Order was originally entered in the case.
In 2012, the mother filed a petition of contempt and for an Income Withholding Order to be entered in the case. At a hearing of the matter, the father did not submit to the court a CS 41 Income Affidavit. The Court found the father in contempt for failure to pay child support and reduced the amount to $704.55 per month plus $94.45 in arrearage.
The mother appealed the order and the Court of Civil Appeals reversed the trial court’s order. First, the father did not submit a CS 41 Income Affidavit. The appellate court held that it was impossible for the court to determine the child support without knowing the income of the father. Further, the court held “When a judgment of arrearage ‘contains no indication of how the court determined the amounts that it did’ and the court’s calculation of arrearage has no support in the evidence the judgment is due to be reversed.” State Dept. of Human Res. ex rel. Briley v. Dobbins, 628 So.2d 931, 932 (Ala. Civ. App. 1993).
It this case, the father represented himself and it is possible that he did not submit a CS 41 Income Affidavit to the court by accident. However, there is no way that the trial court would be able to justify lowering the child support over $200.00 without some decrease in pay of the father. The other fundamental error in the trial court’s order was for the calculation of arrearage without any justification as to the amount the father was in arrears. There would have had to be some testimony regarding the father’s failure to pay child support as ordered.
In any modification of child support, both parents are required to submit a CS 41 Income Affidavit as proof of income under oath. Also, the court requires a CS 42 form which is a worksheet to determine the amount of child support that should be paid by the non-custodial parent. In this case, neither of the forms were filed with the trial court.
The only good news in this case is that the father represented himself and will not have to pay any attorney fees to the mother. If you are a parent and believe that you are due an increase or a decrease in a child support, please feel free to contact my office to evaluate your case. It is not unusual as children become more involved in extracurricular activities that an increase in child support is warranted in some cases.
In some situations, a review of the child support guidelines can be worth thousands of dollars a year in your pocket. A good rule of thumb is to take your monthly expenses for your child and add them up to see if an increase in child support is warranted. Call my office for an initial consultation at (205) 335-2640.