Alabama – Credit Against Child Support Arrearage

The Alabama Court of Civil Appeals has reconciled two seemingly inconsistent cases on Alabama child support arrearage, in Pardue v. Pardue, Case No. 2030620 (Ala. Civ. App. June 30, 2005). In this post-divorce case, the mother and father had already agreed that the children should live with the father, so custody wasn’t an issue. The key issues involved child support.

The father argued for a credit against the child support he owed, because he said the child had lived with him during the time in question. The trial court found that the child had lived with the father for more than six years and awarded the father a credit for the child support accrued during that period.

The Court of Appeals affirmed the trial court on this point. In doing so, the Court of Appeals cited, discussed, and reconciled two previous cases dealing with a credit against child support arrearage. The first of these cases is Landers v. Landers, 481 So. 2d 392 (Ala. Civ. App. 1985), and the second is Thompson v. Thompson, 650 So. 2d 928 (Ala. Civ. App. 1994). In Landers, the noncustodial parent had been denied a credit, and in Thompson the credit was allowed.

The Court of Appeals in this case (Pardue) said that the fundamental principle was consistent in both rulings:

Thus, the Landers court held that a parent who is obligated to pay child support (“the obligated parent”) must introduce evidence of a specific or approximate value of the nonmonetary support he or she provided the child if he or she seeks a credit for nonmonetary support provided while the child lived primarily with the parent who was awarded physical custody (“the custodial parent”), even if the child spent a substantial amount of time visiting the obligated parent. On the other hand, the Thompson court held that an obligated parent can prove his or her entitlement to a credit equal to the amount of child support due in a specified period by introducing evidence that the child primarily lived with the obligated parent during that period, that the obligated parent provided all of the child’s support during that period, and that the custodial parent provided none of it. The case now before us is more analogous to Thompson than it is to Landers. Accordingly, we cannot reverse the trial court’s judgment allowing the father a credit equal to the amount of child support due from June 1995 until November 2001 on the basis of the holding in Landers.

The mother also challenged the trial court’s ruling on grounds of public policy, because, she said, it inappropriately shifted the burden to the custodial parent to disprove the noncustodial parent’s assertion that the child had lived with him. The Court of Appeals rejected this argument as well, observing that the trial court had before it two inconsistent versions of the facts. Applying the ore tenus rule, the Court of Appeals declined to overturn the trial court’s resolution of the factual inconsistency.

The Appeals Court did reverse the trial court, but only on the issue of its having awarded the father child support from the mother. The mother had reported having no income, although she hoped to receive disability income from Social Security in the future. The Court of Appeals said the trial court effectively imputed income to the mother without making a finding of voluntary unemployment or unemployment.

Allowing the trial court to impute potential income for which a parent has applied, but is awaiting approval, is illogical. In every case where income is imputed, there must be a finding of voluntary underemployment or voluntary unemployment. The income imputed to a parent in such cases is derived from “the income that parent would otherwise have.” In this case, there is no finding of voluntary underemployment or voluntary unemployment. The record does not even reflect what the amount of the potential income from the mother’s potential Social Security disability benefits will be if her application is approved.

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