Tuesday, July 19, 2011

Alabama Law - Child Custody, Visitation and Child Support and Contempt Issues

Under the ore tenus rule, the trial courts findings of fact are presumed correct and will not be disturbed on appeal unless plainly and palpably wrong against the preponderance of the evidence.  Ex parte, Carter, 772 So.2d 1117, 1119 (Ala.Civ.App.2000).

     The courts legal conclusions are reviewed de novo, and thereby affords the trial court's factual determination a presumption of correctness, and will not reverse its judgment based on that determination unless the trial court's decision was “clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” Shealy v. Golden, 897 So.2d 268, 271 (Ala.Civ.App.2004) & Morrow, 827 So.2d at 762.  Alabama law states, in cases where there is a question presented on appeal whether the trial court correctly applied the law, the ore tenus rule has NO value, thereby a trial court’s denial of a Rule 59 Motion to Modify, Amend or Vacate a post-judgment may be reversed upon showing of abuse of the discretion of a trial court. Bass v. Bass, 475 So.2d 1196 (Ala.Civ.App.1985).

Furthermore, in Rotar v. Weiland, 591 So.2d 893 (Ala.Civ.App.1991), the Court of Appeals reversed a trial court’s decision whereby the trial court failed to modify the father’s child support obligation based on the contining and substantial decrease of the father.  The Court of Appeals determined that there was no evidence to indicate that the father had any means with which to pay the ordered amount of child support, stating, “While the trial court is afforded the discretion to determine whether there has been a material change in a parent’s circumstances, it is not at liberty to ignore undisputed evidence concerning a parent’s ability to pay.”

on Bell v. Bell, 443, So.2d 1258 (Ala.Civ.App.1983) and Anthony v. Anthony, 582 So.2d 1121 (Ala. Civ.App.1991), before attorney fees can be awarded, there must be a request for such fees.  

According to Talbert, 419 So.2d 240 (Ala.Civ.App 1985) imprisonment as a means of coercing payment may not be imposed if there is a present inability to pay.
  

In King v. Barnes, 54 So.3rd 900, 902 (Ala.Civ.App.2010) and based on Rule 32 of the ARJA Rule 32(a)(3)which was amended by adding subsection (b) which emphasizes from current Alabama case law that a party seeking a modification of child support must plead and prove that there has occurred a material change in circumstances that is substantial and continuing since the last order of child support. The Plaintiff-father met the required burden of proof to modify and/or reduce his child support and based on Murphy, 447 So.2d 798 (Ala.Civ.App.1984) when the accused puts forth evidence of his inability to pay, the burden of proof is on the complainant to prove beyond a reasonable doubt that the obligor can pay.   

The trial court ordering a sum for child support is limited by the present ability of parent to pay.  Forlini v. Forlini, 455 So.2d 855 (Ala.Civ.App.1983) The paramount consideration in determining the amount of child support is the needs of the children, taking into account the parents ability to pay. Brannon v. Brannon 477 So.2d 455 (Ala.Civ.App.1985).  

Based on Rule 32 of the ARJA, 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.  Rule 32, subsection (e) was added to restate that a trial court may modify a child support obligation even when there is not a 10 percent variation between the current obligation and the guidelines when a petitioner has proven a material change in circumstances that is substantial and continuing based on a finding that the application of the guidelines in that case would be manifestly unjust or inequitable. The Plaintiff-father contends that he met the requirements of Rule 32 of the ARJA. 

that Plaintiff-father’s had a material change in circumstances that was substantial and continuing.  Browining v. Browning, 626 So.2d 649 (Ala.Civ.App.1993).

the ordered amount causes a total inability to support self and pay guidelined amount. Hutchins v. Hutchins, 637 So.2d 1371(Ala.Civ.App.1994). The comments to Rule 32, Ala.R.Jud.Admin, states that “the guidelines will provide an adequate standard of support for children, subject to the ability of their parents to pay”.  Based on Stewart v. Kelly, 587 So.2d 384 (Ala.Civ.App.1991), A parent’s inability to pay child support is a proper basis for deviating from the guidelines.  

based on Rule 32 and Alabama case law, the Defendant-mother did not provide that the needs of the children had increased to justify the trial court’s increase in Plaintiff-father’s required child support payments.  Dimoff v. Dimoff, 606 So.2d 159 (Ala.Civ.App.1992).

based on Rule 32(B)(8) of the Alabama Rules of Judicial Administration, which state that child care costs shall not exceed the amount required to provide care from a licensed source for the children, based on a schedule of guidelines developed by the Department of Human Resources and states that children enrolled part-time must be calculated at 50% of the total cost.

 


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