Don’t Want to Pay Support for Adult Children? You Gotta File with the Court

Poor Mr. Hartley. Four years ago he reduced his child support when his oldest child reached age 19. Shoulda gone to court. Shoulda gone to court.

The case is Hartley v. Hartley, Case No. 2080240 (Ala. Civ. App. August 28, 2009). The parties divorced in 2001 and Mom got custody of the two children. The court ordered Dad to pay $677 per month child support. When the oldest child reached the age of 19 in 2004, Dad unilaterally cut his child support in half, to $338.50. Mom said she didn’t agree with Dad’s lowering the child support but that she did nothing because she couldn’t afford a lawyer to fight it.

Fast forward to 2008, when Mom walks into the DHR office in Autauga County and asks if Dad might owe her some back child support. Well yes, as a matter of fact he does.

The trial court said no, that child support for the older child “terminated by operation of law” when the older child reached the age of majority, even though Dad took no action with the court to seek a reduction. Apparently Mom’s income went up or Dad’s went down in the meantime, because the trial court determined the amount of child support Dad should have been paying was $321 and that Dad consequently owed no arrearage. Mom appealed.

Mom wins. Here’s the black letter law:

When the order establishing the amount of child support to be paid does not designate a specific amount for each child, events such as a child’s reaching the age of majority or a child’s marriage do not automatically modify a child support judgment. State ex rel. Killingsworth v. Snell, 681 So. 2d 620, 621 (Ala. Civ. App. 1996); Hamilton v. Phillips, 494 So. 2d 659, 661 (Ala. Civ. App. 1986). Hartley at 4.

The appeals court also endorsed Mom’s argument that child support payments that mature or become due before the filing of a petition to modify are not modifiable. A child support obligation “may be modified only as to installments that accrue after the filing of a petition to modify the child-support obligation.” Hartley at 5.

Therefore, the father’s monthly child-support obligation of $ 677 as set forth in the 2001 judgment could not be automatically modified when the older child reached the age of majority. The full amount of the child-support obligation continued to mature each month, and the trial court could not properly forgive the difference between the amount of child support the father was paying and the amount due each month until the date the father filed his petition for modification. Accordingly, the trial court erred in retroactively modifying the father’s child-support obligation effective on the date the older child reached the age of majority. Hartley at 6.

In his concurring opinion, Judge Bryan agreed that Dad was stuck with the arrearage because he didn’t seek a modification, but he asked for some kind of relief for child support payors like Dad. Pointing out the well-settled principle that a child’s right to child support terminates when the child reaches the age of majority, Judge Bryan said:

There are a myriad of reasons why an obligor parent may not file a timely petition to modify their hild-support obligation once one child attains the age of majority, including lack of funds to hire an attorney and file a petition with the court, the cost of filing a petition with the court, or the inability of the obligor parent to personally file the petition due to some type of incapacitation . . . . The issue in this case exposes an important dichotomy that affects parents and children involved in the child-support system in this State and should be resolved at some point. Hartley at 11.

On the ground in Alabama. When I read this to my wife Amanda, she reacted as many responsible Alabama citizens would. “Seems like a technicality. Do you mean that if I’m paying child support for five children, I have to go back to court every time one of those kids reaches the age of 19? Do I have to pay a lawyer to do that? Sounds like that’s better for divorce lawyers than it is for consumers.” She has a point, doesn’t she?

I told Amanda, and I will tell you, that the judicial system has a chip on its collective shoulder about people paying child support (read that mostly Dads) who take it upon themselves to modify their obligation to pay child support without so much as a by your leave from the judge. Some fathers (certainly not all, but some) have a habit of reducing child support for the flimsiest of reasons, ranging from the Best Buy payment for the TV Mom took with her, to the skateboard Dad gave Junior for his birthday. Judges don’t like this, and for good reason. Perhaps that explains the system’s seemingly rigid reaction to poor Mr. Hartley.

In any event, the lesson is clear for child support obligors. If you have a child with younger siblings reaching the age of adulthood, DO NOT simply take it upon yourself to pay less than the judge has ordered you to pay. Yes, you have to deal with judges and lawyers, and yes, it will cost some money, but you need to get the court to issue a new child support order, and then comply with it.

And here’s another thought: DHR doesn’t intervene just for custodial parents; it also intervenes for non-custodial parents. DHR’s allegiance is not to child support recipients but to accuracy. So Dad, you can do this without incurring a big legal bill. Call DHR. Now.

8 comments

  1. at a loss says:

    In a case for modification of child support, Judge deemed Mom must pay Dad x amount of money reflecting difference in amount paid and new amt determined by modification.

    Can Dad subtract this amount from child support?

  2. Jerry Johnson says:

    Lee, this is my situation. Divorced in 2000, 2 children (currently ages 17 & 23), court ordered $662 child support(voluntarily paid $800 + 1/2 of extracurriculars and bought both of the children’s cars when they turned 16), I have no withholding order(pay by check), ther is no order to pay for college, and the order did not separate support for 1 child versus 2 children. I paid for the room, books and supplies.

    When the oldest turned 19 I reduced the payments to my ex to $425, I did not go back to court and modify my original order. I did look at the Alabama child support charts and reduced it to what it would have been with 1 child instead of 2 and did not just cut it in half. Since the court order states, “support will terminate upon the reaching of age of majority…,” I guess I assumed, incorrectly, that since the court ordered it to terminate at 19 it meant that it terminated at 19 and no further action of the court was required. Why do the orders in Alabama not just say, “until further ordered by the court” rather than age of majority if age of majority is unenforceable without additional court action?

    I guess I have to go back to court.

  3. Lee Borden says:

    Yeah, I think you do. Just know that you’re not alone. There are plenty of NCPs out there who have done exactly what you did, and with the best of intentions.

  4. John McLain says:

    Thanks for answering this issue Lee. I have 2 children from a previous marriage and my oldest is 15. I will be needing your services again when my oldest reaches 19. Again, thanks for what you have done to date.

  5. WhereamI? says:

    Too funny my ex wife owes ME back child support, we will see if you take the same view MR. LEE Borden.

    Lawyers, like King Henry IV said”…first we kill all the lawyers…”

    The family law system is screwed up by kookie judges and greedy lawyers, imagine ripping famlies apart as a job and they went to school for it! And they say WE are unfit! Lawyers and judges are unfit in the head for doing such a job! What nuts!

  6. confusedSM says:

    SO, if the decree clearly does separate out support for each child, each ending at age 19, why would Shelby County say that an amendment is necessary to stop support for the oldest child who has already reached 19?

    Also, if the decree states that medical insurance is no longer required to be provided, can we stop it, even though BCBS says he can stay on until he is 26? He is living on his own and has been since he was 18, not 19. (she has him still receiving mail at her house thinking that maintains his residency.)

  7. Lee Borden says:

    Beats me. I would have thought that a letter and a certified copy of the birth certificate would have been enough.

    And yes, when in doubt, obey the decree. If the decree says medical insurance can stop, medical insurance can stop. Period.

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