“Staying” Child Support

The Alabama Court of Appeals has distinguished between a stay of current child support payments and a stay of collection of a child support arrearage. In Scott v. Scott, Case No. 2030459 (Ala. Civ. App. June 17, 2005), the trial court had ordered the husband (who was disabled) to pay child support of $349 per month and had also ordered him to pay an arrearage of $10,052 for back child support. Here’s the language in the trial court’s opinion:

Execution is stayed in this case pending the outcome of the disability social security case of the [father]. From any sums deemed owed to the children, the court will grant a set off against the arrearage in this cause. If the amount of past due [benefits] coming from the Social Security Administration is less than the $ 10,052, the [father] shall make up the difference. If the claim is over $ 10,052 for the children, the [mother] shall not be ordered to reimburse the [father] any of this money.

Even though the language from the trial court is not at all clear, the Appeals Court chose to interpret it as placing a “stay” only on the collection of the arrearage, not on the current monthly child support.

It is clear from the briefs submitted to this court that both parties have incorrectly interpreted the quoted language in the divorce judgment to be an absolute “stay” of all child-support payments during the time that the father is pursuing a decision regarding his eligibility for Social Security disability benefits. To interpret the judgment as “staying” current child-support payments would not be consistent with the language of the judgment or with Alabama caselaw.

On another issue, the Court of Appeals affirmed despite the husband’s objection that the trial court had made its award of child support without the appropriate child support guideline forms (CS-41 for each party, CS-42, and CS-43). The Court of Appeals noted that the burden is on the appellant (the party filing the appeal) to ensure that the record contains sufficient evidence to warrant reversal.

Neither party in this case ordered a transcript of the trial for inclusion in the record, so the Appeals Court had no evidence whether the child support guideline forms had been included or omitted. And when a trial court’s judgment is based on evidence not before the appellate court, “we conclusively presume that the court’s judgment is supported by the evidence.”

One has to assume the husband would not have made this objection had the appropriate forms been in the record. He lost his chance to complain, however, when he chose not to order the transcript.

4 comments

  1. Jess says:

    My Husband has filed for disability. I have NO doubt that he will get it. However the process is taking much longer than anticipated all the will his CS arrears keep adding up. His ex-wife is being, well an ex-wife and has filed action through ACSe (no court date yet). We recieved notice that if not paid in 30 days they will send it to the treasury and seize tax return. I know about injured spouse. My question is: Is there anything we can do to keep the arrearages from adding up. It is a huge sum now and interest is making it worse. What can we do, we still have several months, according to SSDI atty, before a decision is made and he has NO means to pay.

  2. Jess says:

    No lawyer for Cs, just for SSDI. Cannot afford atty with no income. I read on the ACSE web site that he could request one through them in writting, but what good would it do? They are not going to lower it to O and O is all he can afford right now.

  3. star says:

    yes i stay in alabama my estrang husband is refuseing to take care of all 5 of my girls i have proof in wriyeing he hasnt took care of them since july of last year. what can i do

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