Appealing So You Get Less Child Support

Mom, I guess you knew the risk you were taking when you filed to appeal your divorce case. Sure hope you did. If not, you probably need to have a heart-to-heart with your lawyer.

The case is Powell v. Powell, Case No. 2080518 (Ala. Civ. App. September 18, 2009). Mom argued that child support should be set at $654, but the trial court set it at $500. So Mom appealed, and she “won,” in the sense that the appeals court reversed the trial court and remanded the case for the trial court to recalculate child support. In doing so, however, the appeals court painted a roadmap for the trial court that could result in a calculation of even less child support for Mom.

Mom argued that Dad’s annual income was $42,292.65 and produced a report of his income for a portion of the year that supported that assertion. Dad responded that he was in danger of being laid off and that his actual annual income was only $24,000. According to the appellate court, the trial court had before it evidence on which it could have concluded that the correct amount of child support was $654 (using Mom’s calculations), or $420.26 (using Dad’s assertion about his income). It could even have determined that in this case the application of the child support guidelines was manifestly unjust and unreasonable and arbitrarily set child support at $500. What it could not do, according to the appeals court, was what it did, namely to set child support at a figure not supported by any child support forms and without any express finding that the guidelines were manifestly unjust and inequitable.

Had the trial court properly derived the basic child-support obligation for one child based upon a combined parental income of $ 3,595 [to be paid by both parents and using the pre-2009 guidelines], it would have determined that amount to be $ 500 (an amount that precisely matches the trial court’s support award — see [Ala. R. Jud. Proc.] Rule 32(C)(1)). However, in that event, the parties’ total child-support costs (i.e., the basic child-support obligation plus work-related child-care costs and health-insurance costs) should then have been calculated under the guidelines as having decreased from $ 1,014, as suggested by the mother in her Form CS-42, to $ 849, of which lower amount the father would have been responsible for only 49.5%, or $ 420.26. That necessary calculation was clearly not made, and the $ 500 award by the trial court in this case can be explained only as being either (a) an incomplete application of the Rule 32 child- support guidelines by the trial court using the father’s contended income figure or (b) an impermissible deviation from the child-support guidelines without compliance with Rule 32(A) (ii), which requires written findings to be stated in the event a deviation is ordered. Powell at 5-6.

The appeals court reversed the trial court and instructed it on remand to comply with Rule 32 “by either (a) properly calculating the amount of child support due from the father under the Rule 32 child-support guidelines based upon the evidence and permissible inferences that could be made therefrom, or (b) making an express determination under Rule 32(A)(ii) that application of the child-support guidelines would be manifestly unjust or inequitable.” Powell at 6.

On the ground in Alabama. So now this case heads back to the trial court, presumably for the trial court to set child support according to the directions it has received from the appeals court. No judge wants to declare the child support guidelines to be manifestly unjust and inequitable in a moderate income case (think of the subsequent workload from every litigant arguing incessantly about why deviation from the guidelines is appropriate), so that’s not going to happen. The trial court clearly rejected Mom’s calculations, so it must have believed Dad’s assertion about his income. When the trial court, probably already a little miffed with Mom and her lawyer for getting the judge reversed, applies Dad’s assertion to the instructions it receives from the appeals court, an award of $420.26 seems likely. Mom may regret filing that appeal.

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