Watching a Tug-of-War ‘Twixt Trial Court and Appeals Court

The issues aren’t all that striking in this case dealing with the setting of child support based on self-employment income. What’s interesting is the palpable tension between the Shelby County Circuit Court judge and the appeals court.

The case is Brown v. Brown, Case No. 2070953 (Ala. Civ. App. 2009). For reasons apparent below, let’s call this March 2009 opinion “Brown II.” The parties were divorced in 2001; Mom got custody, Dad visitation. Two years later, they agreed to modify the divorce terms to set child support at $1700 per month, together with private school tuition for three children for so long as Dad’s income exceeded $75,000. This occurred while Dad was employed as a foreman building houses, with an income of about $120,000.

Two years after that, Dad petitioned to lower child support, saying his income had dropped to $75,000. In the meantime, he had left his employment and gone into business for himself. There’s no mention in the opinion whether the trial court or the appeals court considered whether Dad was voluntarily underemployed.

After a hearing, the trial court heard conflicting testimony about Dad’s income from his self-employment and then found that his income for the following year would be reduced to $62,000. The trial court lowered Dad’s monthly child support from $1,700 to $1,025 and released him from the obligation to pay private school tuition. Mom appealed, and the appeals court reversed. Brown v. Brown, 960 So. 2d 712 (Ala. Civ. App. 2006) (Brown I). Brown II  quotes this language from Brown I: “In an October 2004 loan application, the father estimated his annual income to be $ 90,000. The evidence in the record shows that the father’s lifestyle and net worth have not materially decreased since 2003, when he was earning approximately $ 120,000. The father’s financial statements show a net worth in excess of $ 900,000, the mortgage payment on the father’s present home is approximately $ 3,800 per month, and there is evidence in the record indicating that the father has spent a substantial amount on luxury automobiles and travel.”

Now here comes the tension. On remand, the trial court essentially reinstated its earlier judgment, Mom appealed from that judgment, and now the case was back again before the appeals court. Here’s what the appeals court said at the outset of Brown II: “We conclude that the judgment on remand does not comply with this court’s previous opinion . . . We recognize, however, that the opinion in [Brown I] failed to give specific instructions to the trial court. The trial court, on remand, deferred to its prior findings of fact and conclusions of law, which this court had specifically held to be erroneous.” Brown II at 5-6. Lee’s translation: “Perhaps we didn’t make ourselves clear.”

The appeals court then set out to illustrate the error in the trial court’s reasoning. It pointed out that Dad’s CS-41 showed a salary of $40,500 per year and that, because the business owned his house and made the payment on it, the trial court should have imputed an additional $46,800 per year for the house payments. The sum of these two figures alone, the appeals court said, placed the father’s income at $87,300, clearly more than the $62,000 found by the trial court. The appeals court also noted that the father estimated his income at $90,000 on a contemporaneous loan application and that the business provided vehicles for Dad and Dad’s new wife.

In addition, the appeals court said the trial court erred when it calculated Dad’s child support on the Form CS-42. The trial court had deducted his $500 monthly health insurance premium, even though the premium was paid by the business at no cost to Dad. The appeals court ruled that Dad failed to meet his burden of proving that his income dropped below $75,000, so it found the trial court had erred in relieving him of the burden of paying private school tuition.

As we often try to do with cases like this, let’s look at the facts on the ground. These parties have conducted two lengthy trials and have now prepared two sets of briefs on appeal. They must be exhausted. The trial court must be exhausted. You can tell from the opinion the appeals court is losing patience. Let’s hope Mom and Dad figure out a way to get this done this time. Surely by now they’re both tired of messing with courts, lawyers, and judges.

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