No Way Around Those CS Forms

Judges keep trying it and litigants keep trying it and it never works. You just can’t set child support without filling out those CS forms. We have the latest example in J.M. v. C.M., Case No. 2071223 (Ala. Civ. App. Feb. 13, 2009).

The CS forms at issue, of course, are the CS-41 affidavits of each party and a CS-42 form showing the calculation of child support. In J.M. the Montgomery Juvenile Court had consolidated the father’s custody case with an earlier child support case that had set child support at $225 but with no written record of the proceedings of the child support case.

The father testified that the earlier court (what court is not clear from the opinion) had “taken [him] off” child support because he and the mother had agreed to an equal time parenting arrangement. After a trial the Montgomery Juvenile Court “reinstated” the $225 child support award without obtaining any evidence of either party’s income, child care expenses, or health insurance expenses. The father appealed.

The appeals court first reiterated the oft-stated rule from Al. Rule of Judicial Administration Rule 32(E) that the forms be included in every case setting child support and stating that the court will reverse a child support judgment when the record fails to contain the required forms. Wilkerson v. Waldrop, 895 So. 2d 347, 349 (Ala. Civ. App. 2004); M.S.H. v. C.A.H., 829 So. 2d 164 (Ala. Civ. App. 2002); and Martin v. Martin, 637 So.2d 901 (Ala. Civ. App. 1994).

The mother and the child’s guardian ad litem had argued that the juvenile court was not required to apply Rule 32 or take any evidence on the child support issue, arguing on the basis of Rhea v. Rhea, 360 So. 2d 1029 (Ala. Civ. App. 1978). In that case the appeals court had allowed a child support order to be reinstated without requiring evidence of incomes, etc. The appeals court easily distinguished Rhea, however, because the order being modified in it was merely a pendente lite order, and the trial court had simply restored the status quo.

The appeals court stated that the father’s undisputed testimony at trial was that there was no surviving order that he pay the mother child support. Finding that the juvenile court had modified the prior order without taking testimony on the parties’ respective incomes and without requiring either party to complete the CS-41 or CS-42 form, the appeals court reversed the juvenile court.