Retroactive Increase in Child Support

What happens when a court order of child support is based on a mistake, and you realize that mistake several years later? Do you adjust the child support retroactively? The Alabama Court of Civil Appeals confronted this question in Plott v. Deason, Case No. 2040001 (Ala. Civ. App. September 9, 2005). The answer is that the trial court has discretion to do so upon a proper filing but only if that filing occurs within the deadline set by Alabama Rules of Civil Procedure.

The mother sought and received a declaration of paternity and an award of child support from the father. DHR later filed to increase that support, and after a hearing the court increased the child support to $337.36. A little more than three years later the mother filed and alleged that the father had fraudulently misrepresented his income in the two prior actions. The parties reached agreement to increase the current support to $612.54 per month, so the amount of current child support was not at issue in this case.

Although the parties agreed on the increase to $612.54 per month, they were unable to agree on the extent of any retroactive increase in child support, so they submitted this issue to the court for a hearing. After hearing testimony from the mother, the father, and the DHR attorney, the court determined that there had been no fraud by the father. Instead, the DHR attorney had simply misread the father’s wage statement and had used a figure for the father’s income that was about half the true figure.

Nevertheless, the trial court retroactively increased the father’s child support and ordered the father to pay the resulting arrearage. The father appealed.

The Appeals Court reversed. It ruled that the retroactive modification of the child support was barred by res judicata (“the law of the case”). Because no appeal was taken from the judgment setting the amount of the child support erroneously, the mother is now bound by it and cannot attack it collaterally after the fact. Although a child support award is always subject to modification, the Appeals Court said, modification must be based on a material change in circumstances, and it only applies to installments accruing after the filing of the petition. Rule 32(A)(3)(a), Ala. R. Jud. Admin. See also Mackey v. Mackey, 799 So. 2d 203 (Ala. Civ. App. 2001).

The Appeals Court pointed out that Alabama Rule of Civil Procedure 60(b) does provide a mechanism for collaterally attacking a judgment based on mistake, newly discovered evidence or fraud. The filing may be by motion within four months after the judgment is entered or by independent action for up to three years after the judgment was entered. Because the mother’s challenge was not filed within the three years, she was not eligible for relief under Rule 60(b).