When It Comes To Ordering Retroactive Child Support, Does “May” Really Mean “Must”?

Yokley v Yokley, Case No. 2150814 (Ala. Civ. App. March 3, 2017) is a case about retroactive child support. It’s also about the award of a house in divorce, but that issue isn’t particularly interesting, so we’ll ignore it.

The parties had two minor children. They lived with the wife during the 21 months the parties were separated before their divorce trial, but the husband provided almost no support for them. The trial court ordered the husband at trial to pay $760 per month in child support but did not make the award retroactive. On Mom’s appeal, the appeals court reversed on the issue of the retroactive child support award, citing four cases: (1) Brown v. Brown, 719 So.2d 228, 232 (Ala. Civ. App. 1998); (2) Vinson v. Vinson, 880 So.2d 469 (Ala. Civ. App. 2003); (3) Pate v. Guy, 942 So.2d 380 (Ala. Civ. App. 2005); and (4) McCaskill v. McCaskill, 404 So.3d 186 (Ala. Civ. App. 2012).

“Accordingly, based on [the cited cases], we reverse the divorce judgment to the extent the trial court declined to award retroactive child support, and we remand the cause for the entry of such an award, taking into consideration the parties’ incomes and pertinent financial provisions of the divorce judgment.”

Each of the cited cases, and now Yokley, states the rule permissively, that is that the trial court may award retroactive child support. Then each case, and now Yokley, reverses when the trial court fails to do so. Clearly, a court still has discretion to fail to award retroactive child support. Increasingly, however, the reasons for exercising that discretion must be clearly stated in the trial court’s opinion and give due deference to what the Pate court called “the well-established principle that parental support is a fundamental right of all minor children.” 942 So.2d at 385.

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