It’s well settled that Alabama law permits a court to order child support to continue past the age of majority when the child is disabled. Because it happens relatively rarely, however, most people who deal with it have an understanding of how it works that is hazy at best. We get some clarity in today’s case.
This is Beverly v. Beverly, Case No. 2071085 (Ala. Civ. App. April 3, 2009). The parties were divorced in 2001 when the child was 13. After Mom filed a Petition for Rule Nisi (enforcement) in 2002 that resulted in judgment of an arrearage, Mom filed this petition for Rule Nisi in 2006 and also requested the court to modify the divorce decree to award postminority support.
The seminal case on postminority support for the child’s disability is Ex parte Brewington, 445 So. 2d 294 (Ala. 1983). Under Brewington, the court may award postminority support when the child is “so mentally and/or physically disabled as to be unable to support himself.” The child in this case had autism that the trial court found would continue throughout the child’s life:
Due to his autism, the child is not now capable of earning an income that is sufficient to provide for his reasonable living expenses, and said child’s autism is the cause of his inability to earn that income. As a result, the child is now, and most likely will continue to be, a dependent child of the parties at a significant expense, both medically and educationally, pursuant to Ex parte Brewington. The child is not self-supporting nor self-sustaining, and most likely will not be self-supporting or self-sustaining at any time in the foreseeable future. Quoted in Beverly, p. 3.
The trial court awarded $355 per month for the child’s postminority support and ordered Dad to pay Mom a $1,500 attorney fee. Dad had apparently gotten current on his child support by the time of the trial, so the court’s judgment in response to Mom’s petition didn’t mention the arrearage. In response to Dad’s postjudgment motion, the trial court acknowledged that the child was able to work “a limited amount of time” at a low-wage job but stated that the only person who had testified about that job had limited information about it. The trial court said it had taken into account the support the child received from Social Security and that it had awarded the attorney fee to Mom because Dad had a history of being in arrears on his obligations to Mom. Dad appealed.
Dad’s first argument was that the evidence didn’t support the trial court’s judgment ordering him to pay postminority support. Curiously, even though the lack of evidence Dad complained about occurred in an oral hearing, he opted not to provide a transcript of the hearing to the appeals court. The appeals court said that an appellate court is confined in its review to the appellate record.
[T]he court may not “assume error or presume the existence of facts as to which the record is silent.” Quick v. Burton, 960 So. 2d 678, 680-81 (Ala. Civ. App. 2006). Accordingly, when, as in this case, “oral testimony is considered by the trial court in reaching its judgment and that testimony is not present in the record as either a transcript or Rule 10(d), A[la]. R. A[pp]. P., statement, it must be conclusively presumed that the testimony [was] sufficient to support the judgment.” Rudolph v. Rudolph, 586 So. 2d 929, 930 (Ala. Civ. App. 1991). Thus, the father has failed to demonstrate error with regard to his argument that the trial court’s judgment was not supported by the evidence.
The next issue was the calculation of that $355 per month child support. The appeals court said that postminority support for a disabled child should be calculated pursuant to Alabama Rule of Judicial Administration 32, citing Ex parte Cohen, 763 So. 2d 253 (Ala. 1999). The appeals court acknowledged that the trial court had the discretion to deviate from the guidelines but said there needed to be evidence in the record that the trial court had at least started with an examination of Rule 32 guideline child support. Finding none, the appeals court reversed on this issue and remanded to the trial court to calculate child support according to the guidelines or issue findings of fact justifying its deviation from them.
Dad also objected to the trial court’s award of an attorney fee in the absence of a finding of contempt. The appeals court acknowledged that Ala. Code § 30-2-54 precludes the award of an attorney fee in a contempt proceeding but pointed out that the trial court had discretion to award an attorney fee in connection with a modification. Accordingly, it reversed and remanded the case to the trial court, ostensibly to determine the appropriate attorney fee for the modification alone, divorced from the contempt proceeding.