Swindle v. Swindle

• Citation: 157 So.3d 983
• Decision Date: 27 June 2014
• Docket Number: 2120776.
• Parties: Mary Yolanda SWINDLE v. Jeffery SWINDLE.
• Court: Alabama Court of Civil Appeals

157 So.3d 983

Mary Yolanda SWINDLE

v.Jeffery SWINDLE.^*

2120776.

Court of Civil Appeals of Alabama.

June 27, 2014.

Karen Humphrey, Huntsville, for appellant.

D. Milburn Gross, Jr., Meridianville, for appellee.

Opinion

PER CURIAM.

Mary Yolanda Swindle (“the mother”) appeals from a judgment entered by the Madison Circuit Court (“the trial court”) addressing the payment of a child-support arrearage owed by her ex-husband and the father of her children, Jeffery Swindle (“the father”). Among other things, the judgment ordered the mother's counsel to submit a proposed income-withholding order¹ (“IWO”) that would deduct the current child-support obligations from the father's income but would not deduct any amount to be applied toward the arrearage owed. On appeal, the mother contends that the IWO should have included an amount to be deducted for payment toward the arrearage. We agree, and reverse the judgment.

Facts and Procedural History

The parties were previously before this court on the mother's appeal of a judgment modifying the parties' divorce judgment. Swindle v. Swindle, 55 So.3d 1234 (Ala.Civ.App.2010). In that appeal we held, among other things, that the father's child-support obligation should have increased based on a change of physical custody of a child and that the father should have been ordered to pay an accrued child-support arrearage, plus interest, for a specific two-month period in 2009. On remand, the trial court entered a judgment modifying child support as directed. In June 2012, the trial court entered a judgment ordering the father to pay to the mother $1,330, plus interest, as the child-support arrearage for the two-month period, along with the arrearage and interest already owed at that time, for a total exceeding $20,000. An IWO (“the first IWO”) was entered instructing the father's employer to deduct the amount owed for the father's monthly child-support obligation, which was $1,195.89 at that time, as well as the total amount of past-due child support ($22,058.76) until the arrearage was paid in full. The first IWO contained additional language added to the standardized form, restricting the total amount to be deducted each month to a maximum of 55% of the father's disposable income. All of these proceedings in the trial court were conducted in case number DR–07–900008.81 (“case no. 81”).

On October 30, 2012, the father filed a separate petition seeking to modify his child-support obligation, asserting that his income had decreased and that one of the supported children had reached the age of majority in 2010. That petition was designated as case number DR–07–900008.02 (“case no. 02”) and was assigned to a different trial judge. A hearing was held in case no. 02 on March 3, 2013. The transcript shows that the only issue discussed during the brief hearing was the parties' request that the trial court confirm an agreement between the mother and the father that current child support would be reduced to $545 per month retroactive to November 1, 2012. Counsel for the mother and counsel for the father informed the trial court that they would be submitting documents and a proposed order to confirm the agreement.

On March 18, 2013, the trial court entered an order in case no. 02 stating that the parties had reached an agreement. In accordance with that agreement, the order provided, in part:

“The child support obligation of the [father] is hereby modified as follows: The father shall pay to the mother for the support and maintenance of the minor child ... the sum of Five Hundred and Forty–Five ($545.00) dollars retroactive to November 1, 2012.

“An Income Withholding Order shall hereby be entered and issued for all child support and arrearages owed by the [father].

“The [father] is to be given credit toward the arrearage presently owed for all months after November 1, 2013 [sic] in which the current child support taken by income withholding is greater than the amount established in this order.”

An amended order was entered on March 26, 2013, to correct the reference to “2013” in the third paragraph of the March 18 order to “2012.”

Following the entry of the March 18, 2013, order, the trial court entered another IWO (“the second IWO”) in case no. 02 instructing the father's employer to deduct $545 from his monthly income, to be applied to his current child-support obligation, and $22,058.76, to be applied toward the arrearage, for a total monthly deduction of $22,603.76. Unlike the first IWO, the second IWO did not contain an additional statement added to the standardized form limiting the maximum amount of the deduction to a certain percentage of the father's disposable income. The father's CS–41 income statements in the record indicate that his total monthly income was $4,004.

On April 15, 2013, the mother filed a motion, purportedly pursuant to Rule 59(e), Ala. R. Civ. P., entitled “motion to alter, amend, and correct withholding order.” The mother requested that the second IWO be modified to again contain a specific order that 55% of the father's income be deducted until the arrearage was paid in full. On April 18, 2013, the court entered an order stating that the mother's motion was “granted in part” and that the parties were “granted leave to submit an amended income withholding order within fourteen (14) days.”

On April 25, 2013, the father filed, purportedly pursuant to Rule 59(e), Ala. R. Civ. P., a motion entitled “motion to alter or amend judgment.” In that motion, the father asserted that a specific arrearage amount should not have been included in the March 26, 2013, order² entered in case no. 02 because, the father asserted, he was challenging the June 2012 judgment establishing the arrearage amount in case no. 81. The father also asserted that the parties were having difficulties submitting proposed IWOs through the court's electronic-filing system that would provide for the deduction of a percentage of the father's income, as opposed to a specific dollar amount, to be applied toward the arrearage. As a ground for relief, the father asked the trial court in case no. 02 to “determine the arrearage presently owed and then to set a monthly amount to pay on the arrearage.”

Another hearing was held on the record on May 23, 2013, in case no. 02. At the beginning of the hearing, the trial court stated:

“We're here in DR[–]07–900008.02. We are here on—what is it—the second or third Motion to Modify a previous Order of Modification of Child Support that was entered by this Court. I believe the initial modification order was entered on March 18, 2013. There is a motion to amend it with a proposed order which was entered on March 26, 2013 following which yet another Motion to Alter, Amend or Correct a Withholding Order was filed on April 15th, 2013, and another Motion to Alter, Amend Judgment on April 25, 2013. This one is a mess, guys.”

Counsel discussed their confusion resulting from orders that were being entered in the two cases as well as alleged difficulties in submitting correct IWO forms through the court's electronic-filing system. The trial court defined the scope of the issues to be heard and instructed counsel as follows:

“I'm going to allow you all to present whatever evidence you have on the current state of the arrearage, how much has been paid, really, effectively since June 18, 2012.... I'm going to reserve judgment on whether or not I can or will wrap it all in together. But I figure whatever I do, let me go ahead and get that so that I don't have to come back and ask for it. So that will be Number 1 what I want from you all, the payment history, accounting of the arrearage.... Number 2, I want you all to submit proposed IWOs and a proposed whatever number—Amended Order of Modification, which I'll give you seven days from today to submit to the Court.”

The trial court then received testimony on the issues as outlined. The father testified that deducting 55% of his income was creating an economic hardship for him, and he sought a reduction in the amounts to be withheld; however, he did not testify regarding his expenses or provide any factual support for his assertions. At the conclusion of the hearing, the father's counsel stated as follows:

“We're asking for two things: One is the calculation of arrearage; that's the first thing. The second thing is that the Court set an equitable amount to be paid toward the arrearage monthly. That's basically—those are two things we're asking, that's it.”

The mother contended that 55% of the husband's income should be deducted and applied, first, to current child support, which had been reduced to $545 per month, and, second, to the arrearage. Under the mother's proposal, the same percentage of the father's income would continue to be deducted each month, but a greater amount would be applied toward the arrearage based on the reduction in current support.

On May 29, 2013, the father filed a memorandum in support of his position. The father specifically asked the trial court to enter an IWO that included $100 to be deducted each month and applied toward the arrearage. On the same day, the mother filed a pleading, again setting out her request for an IWO that deducted 55% of the father's monthly income.

On May 29, 2013, the trial court entered an IWO (“the third IWO”), which instructed the father's employer to withhold $545 a month for current child support and $100 a month to be applied toward the arrearage. On June 3, 2013, however, the trial court entered a judgment stating, in pertinent part:

“3. The [father's] motion to have this Court modify the arrearage and monthly payment provided for in the June 18, 2012 order entered by Judge Dennis O'Dell in the .81 action, is hereby DENIED. Pursuant to the June 18, 2012 order, the Court finds that the [mother] has obtained a judgment against the [father] for the past child support arrearage and accrued interest.

“4. Within seven (7) days of the issuance of this Order, counsel for the [mother] shall electronically file

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