Beavers v. Beavers

• Decision Date: 05 December 1997
• Parties: Thomas Jerry BEAVERS v. Carolyn BEAVERS. 2960910.
• Court: Alabama Court of Civil Appeals

Page 373

717 So.2d 373

Thomas Jerry BEAVERS v. Carolyn BEAVERS.

2960910.

Court of Civil Appeals of Alabama.

Dec. 5, 1997.

Rehearing Denied Jan. 9, 1998.

Certiorari Denied May 29, 1998

Alabama Supreme Court 1970689.

Thomas Allen Deas, Mobile, for appellant/cross-appellee Thomas Jerry Beavers.

Ellen T. Turner, Mobile, for appellee/cross-appellant Carolyn Beavers.

THOMPSON, Judge.

Carolyn Beavers ("the mother") and Thomas J. Beavers ("the father") were divorced in 1987. The mother was awarded custody of the parties' two minor children and the father was ordered to pay child support. On February 6, 1997, the mother filed a motion for a modification of the child support order, alleging the father was delinquent in his child support obligation, requesting a modification of the child support order, and requesting post-minority support for the parties' minor son while he completes high school. The trial court conducted an ore tenus hearing on April 8, 1997, and entered its order on that same date. Among other things, the trial court affirmed the existing child support obligation but increased from 50% to 65% the portion of the medical expenses not covered by insurance (hereinafter "noncovered medical bills" or "noncovered medical expenses") for which the father is responsible. The trial judge denied all other pending matters, including the mother's request for post-minority support for the parties' minor son. The father appealed; the mother cross-appealed.

The father argues that the trial court erred in ordering that he pay 65% of all noncovered medical bills, including psychiatric fees. The father specifically argues that he did not receive notice of the mother's claim for an increase in his responsibility for medical expenses and that the trial court failed to determine that the psychiatric services were necessary and that the fees were reasonable. The mother cross-appeals, arguing that the trial court erred in not ordering an increase in the father's child support obligation pursuant to Rule 32 and in refusing to award post-minority support for the child while he is a high school student.

The parties were divorced in 1987. The parties' daughter is now a married adult. The parties' son is a 17-year-old high school junior. The son will turn 19 in the middle of his senior year in high school. The record indicates that the son's grades are very low and that he is failing some classes.

A psychiatrist is treating the parties' minor son for depression; the son sees the psychiatrist four times a month. The mother's insurance requires a $30 "co-pay" for each of the son's sessions with the psychiatrist. At the modification hearing, the mother testified that she was having difficulty paying for the noncovered psychiatric fees and that she needed additional financial assistance to make those co-payments. The father, who had not seen the minor son in several months, first learned of the son's psychiatric treatment at the modification hearing.

Although no documentation appears in the record, it is apparent from the transcript of the modification hearing that the divorce judgment had most recently been modified in March 1996. At that time, the father was ordered to pay $372.62 per month in child support. The mother alleged at the April 8, 1997, modification hearing that the father's income had increased and that he had additional income from rental property. The father testified that his income had increased for a few months in 1996 because he had worked a large amount of overtime, but that the overtime was no longer available. The father testified that he had received a $.27 per hour raise since the last modification of his child support obligation. The father also testified that he made no profit from his rental property.

Notice of Claim

The father claims that he did not receive proper notice of the mother's claim for a modification; he specifically argues that he had no notice of the claim for the payment of noncovered medical expenses. The mother's petition for modification alleged that the minor son's expenses had increased and that the father's income had also increased. The father claims that this did not put him on notice that the mother was requesting a modification for an increase in the amount of noncovered medical bills. However, medical expenses are a part of the overall support obligation. See Snow v. Snow, 531 So.2d 921 (Ala.Civ.App.1988).

We also note that the father argues that the trial court erred in increasing the proportion of noncovered medical expenses for which he is responsible without making a determination that the psychiatric services for the son were reasonable and necessary. See Luce v. Luce, 681 So.2d 613 (Ala.Civ.App.1996). However, the father did not raise this issue at trial. A trial court may not be held in error for issues that were not before it; an issue may not be raised for the first time on appeal. Dees v. Dees, 581 So.2d 1103 (Ala.Civ.App.1990), cert. quashed, 581 So.2d 1105 (Ala.1991).

Modification of Child Support

The mother argues in her cross-appeal that the trial court properly ordered the father to pay an increased proportion of noncovered medical expenses, but that the trial court erred in not increasing the child support obligation owed by the father pursuant to Rule 32, Ala. R. Jud. Admin. A child support order may be modified only where there is a change in circumstances that is material and continuing. Romano v. Romano, 703 So.2d 374 (Ala.Civ.App.1997). The burden of proving such changed circumstances that would justify a modification of the prior child support order rests with the party seeking the modification. Cunningham v. Cunningham, 641 So.2d 807 (Ala.Civ.App.1994). The decision whether to modify a prior support order is within the discretion of the trial court, and this court will not reverse the trial court's determination on that issue absent a clear showing of an abuse of discretion. Id.

Rule 32, Ala. R. Jud. Admin., creates a rebuttable presumption that an existing child support obligation should be modified where the difference between the present obligation and that indicated by the guidelines in Rule 32 is greater than 10 per cent. The trial court may modify a support obligation where the 10 per cent variation is not present, but where there has been a material change in the parties' circumstances. Williams v. Braddy, 689 So.2d 154 (Ala.Civ.App.1996). "The party seeking a modification in that situation, however, does not have the benefit of the rebuttable presumption." Id. at 157.

In this case, the mother alleged that the father had rental income that was not considered at the time of the previous child support modification. The mother also testified at the hearing that the child had had increased noncovered medical expenses. The father also testified that he "broke even" on the rental property that he owned, and that the amount of rent he charged on that rental property had remained consistent since the previous modification. The father testified that the increase in his 1996 income was attributable to a temporary increase in overtime, that he no longer worked those overtime hours, and that he had received a $.27 per hour raise since the previous modification.

The mother, as the party seeking the modification, had the burden of establishing that the parties' circumstances had changed; she did establish that the minor son's medical expenses had increased and that she was experiencing difficulty in paying the portion of those expenses assigned to her by the March 1996 modification order. However, the mother presented no evidence, only her own allegations, to contradict the father's testimony regarding his income. We cannot say that the trial court erred in determining that the mother was not entitled to the rebuttable presumption that the father's support obligation should be modified.

The trial court's decision based on the evidence presented in an ore tenus proceeding regarding the modification of child support pursuant to Rule 32 is entitled to a presumption of correctness and will not be reversed absent evidence that the decision was plainly and palpably wrong. Williams v. Braddy, supra. Evidence in the record supports the trial court's judgment. The only material change that the mother established was the increase in noncovered medical expenses. The trial court properly increased the father's responsibility for the noncovered...