Child support is one issue that is always modifiable by the court. In most cases, it is not unusual for a non-custodial parent to seek a decrease in child support if their income decreases. This is a post- divorce proceeding from Geneva County, Alabama in the case of Cook v. Sizemore.
This case involves a modification of child support that was granted in the original divorce proceeding. Here, the parties were divorced in 2001, and according to the divorce decree the husband was required to pay $923 per month in child support. This child support determination was based on the fact that the husband’s gross monthly income was $5,833 earning $73,000 annually, and the fact that the wife’s gross monthly income amounted to $1,213. At the time of the divorce, the husband was employed Ready Mix Concrete Company.
In 2013, the father filed a petition to change his child support obligation. Specifically, the father testified at the hearing that he had lost his job working at Ready Mix Concrete Company due to the company going out of business. At the time of the hearing, the father was managing a liquor store. The liquor store is solely owned by the father’s now wife. The father’s wages in 2013 from the liquor store were $21,915. The trial court denied the father’s claim to change the child support modification. Accordingly, the father appealed.
Whenever a trial court is assessing whether to deny or award a change in a child support obligation the trial court must decide if there has been a material change of circumstances. Accordingly, the trial court ruled there was not a change in circumstances. However, Alabama Court of Civil Appeals disagreed.
Specifically, the Alabama Court of Civil Appeals agreed with the father that he had demonstrated a substantial change in income such that constituted a material change in circumstances. Furthermore, the appellate court also stated “ the fact that a change in circumstances has occurred does not necessarily end the inquiry and require that the father’s child support obligation be modified.” H.J.T., v. State ex rel. M.S.M., 34 So. 3d 1276, 1280 (Ala. Civ. App. 2009). Meaning, that just because a change of circumstances has occurred doesn’t automatically warrant a change in child support.
In addition, the appellate court referenced Ala. R. Judicial Administration 32, which states a trial court has the discretion to deny a modification of child support based on a finding that the application of the child support guidelines would be manifestly unjust or inequitable. That is to say, if the trial court concludes that a deviation from child support is warranted, the court must enter a written finding stating the reason for its determination. Here, the trial court decision to not modify child support amounted a deviation from the guidelines, and the trial court failed to make a written finding stating the reasons.
Furthermore, the appellate court addressed the issue regarding a parent being voluntarily underemployed. Here, the mother argued that the father was voluntarily underemployed. The appellate court held that the trial court is not required to make a written finding regarding if the parent is voluntarily underemployed. The trial court had two options; first, the trial court could have found the father was voluntarily underemployed and imputed income to the father. In that situation, the trial court would not have to make a written finding regarding the deviation from the child support guidelines. Second, the trial court could have denied the father’s petition based on a determination that a deviation from the guidelines was warranted under the facts of this case. There, the court would have to make an express and written finding in regards as to why the trial court deviated from the guidelines.
However, in the case at hand, the trial court failed to do either of the following two options. Therefore, the Alabama Court of Civil Appeals reversed the judgment and remanded the cause back to the trial court for it to enter a judgment making it clear whether the trial court intended to impute income to the father or whether it believed the evidence warranted a deviation from the child support guidelines.
Normally, the court system requires the non-custodial parent to supply the custodial parent with child support. In Alabama, the courts follow a child support guideline which is based on both parents combined gross income. The child support guidelines supply the courts with a standard rate to set child support. The courts strictly adhere the child support guidelines and rarely deviate from the chart. However, in this case, the appellate court notions that a deviation from the guidelines can be justified if there is written finding.
If you are seeking a child support lawyer, please call Joseph A. Ingram at (205) 656-0044.