Misconduct As Voluntary Underemployment

Pity poor Mr. Hayes. When the police arrested him for possession of obscene material (sorry, no pictures), he got suspended from his job and eventually fired. And convicted of a felony. Yeah, he did it. Not sure what it was, but it must have been bad. So why is Mr. Hayes in a family law blog? Because of what happened next.

You can read about the hapless Mr. Hayes at Hayes v. Hayes, Case No. 2040653 (Ala. Civ. App. April 14, 2006). First Mr. Hayes simply reduced his child support payments unilaterally, never a good idea. Later, he filed with the court to reduce his payments, arguing that his conviction and his employment termination had prevented him from earning the income that formed the basis of the original child support award.

The trial court in Lauderdale County reduced his child support from $900 to $625 per month because one of his two children had reached the age of majority. The trial court refused to reduce the child support on the basis of his reduced income, however, finding that the reduction “was due to his own misconduct” and that he was voluntarily underemployed. The trial court sentenced him to three days of incarceration for each delinquent child support payment, a total of 66 days in jail.

The father appealed, arguing that the trial court erred (1) in determining that he was voluntarily underemployed; (2) by not using the required child support forms; and (3) by ordering the father to jail for failing to pay child support.

The appeals court easily brushed aside the father’s first and third arguments. Van Houten v. Van Houten, 895 So. 2d 982 (Ala. Civ. App. 2004), and Cunningham v. Cunningham, 641 So. 2d 807 (Ala. Civ. App. 1994). The appeals court was more sympathetic, however to the father’s argument that the trial court had failed to use the prescribed (and required) child support forms.

Noting that the omission of child support forms is not fatal if the appeals court can determine that the child support award was set with reference to the guidelines, the appeals court reversed and remanded in this case, because all its calculations showed a higher child support figure than that set by the trial court.

[N]o application of the income figures specified by the trial court to the schedule of basic child-support obligations in the child-support guidelines supports the $ 625 monthly child-support award, and the trial court did not expressly state that it had deviated from the guidelines or state any reasons why a deviation from the guidelines would be necessary. See Appendix to Rule 32, Ala. R. Jud. Admin.; see also Mosley v. Mosley, 770 So. 2d 638, 640 (Ala. Civ. App. 2000).

Hint to Mr. Hayes: get your checkbook ready. You’ve appealed the trial court’s judgment to the appeals court (almost never likely to be taken in a friendly way by the judge), and now the appeals court has gone on record with its observation that the trial court was too nice to you. Not gonna be pretty.

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