CK v. JMS

• Decision Date: 16 December 2005
• Docket Number: 2040206.
• Citation: 931 So.2d 724
• Parties: C.K. v. J.M.S. J.M.S. v. C.K.
• Court: Alabama Court of Civil Appeals

931 So.2d 724

C.K. v. J.M.S.

J.M.S. v. C.K.

2040206.

Court of Civil Appeals of Alabama.

December 16, 2005.

Richard E. Shields of Shields, Ratliff, Green & Kern, P.C., Mobile, for appellant/cross-appellee C.K David P. Broome, Mobile, for appellee/cross-appellant J.M.S.

MURDOCK, Judge.

C.K. appeals from a judgment of the Mobile Juvenile Court modifying his child-support obligation; J.M.S. cross-appeals from that order. Because we find that the juvenile court applied the incorrect law in resolving some of the issues that the parties presented to it, we affirm in part, reverse in part, and remand.

On January 5, 1986, P.T.S. was born to J.M.S. On May 6, 1987, the Chancery Court for the First Judicial District of Hinds County, Mississippi, entered a judgment establishing that C.K. is P.T.S.'s father ("the 1987 judgment"). The 1987 judgment incorporated an agreement between the parties requiring, among other things, that C.K.: (1) pay $250 per month for P.T.S.'s support; (2) maintain health insurance for P.T.S.; and (3) pay one-half of P.T.S.'s uncovered medical expenses. Consistent with Mississippi law, those obligations would continue until P.T.S. reached the age of 21 years, was married, or was otherwise emancipated.

Subsequent to the entry of the 1987 judgment, J.M.S. and P.T.S. moved to Louisiana, where they presently reside. At the time of the 1987 judgment, C.K. was a resident of Alabama, where he continues to reside.

In 1999, J.M.S. indicated to C.K. that the amount of child support he had been ordered to pay was insufficient to support P.T.S. After the parties exchanged tax returns and further correspondence, C.K. wrote to J.M.S. and indicated that he could pay her $750 per month as child support. C.K. began making payments in that amount in June 1999.

In January 2002, C.K. reduced his monthly child-support payments to $600 on the asserted basis that he was experiencing financial problems. He further reduced his child-support payments to $500 per month in June 2003.

P.T.S. applied to and was accepted by Tulane University to begin as a freshman in the fall of 2004. The annual cost of tuition, room, and board at Tulane was $40,735. After deducting from that amount the scholarships and other financial assistance that P.T.S. received, there remained an uncovered annual cost of attendance at Tulane of approximately $17,100.

On December 8, 2003, J.M.S. filed a "Motion to Modify and for Rule Nisi" against C.K. in the Mobile Juvenile Court in which she sought to have the 1987 judgment modified by increasing the amount of C.K.'s child-support obligation. She also sought to have the court order C.K. to pay $178.59 in medical costs that he allegedly owed pursuant to the terms of the 1987 judgment.

On April 6, 2004, J.M.S. filed an "Amended Motion for Modification and for Rule Nisi," in which she alleged that she and C.K. had entered into an agreement in 1999 to increase his child-support obligation to $750 per month. She claimed that C.K. was in arrears in his child-support payments in the amount of $7,550, and she sought an increase of C.K.'s child-support obligation on the basis that C.K.'s $750 monthly payment was insufficient to support P.T.S. She also alleged that C.K. had failed to pay certain medical bills and to forward insurer reimbursements to her as required under the 1987 judgment.

On April 25, 2004, the Mobile Juvenile Court entered an order registering the 1987 judgment in that court. Thereafter, in June 2004, C.K. filed an amended answer and a counterclaim in which he denied the pertinent allegations of J.M.S.'s motion to modify and sought a modification of the 1987 judgment whereby his child-support obligation would end when P.T.S. reached 19 years of age, as provided by Alabama law, rather than when he reached 21 years of age as provided in the 1987 judgment and by Mississippi law.

The juvenile court held a hearing on the matter on August 12, 2004, at which J.M.S. and C.K. testified. On October 18, 2004, the court entered a judgment disposing of the parties' claims. In pertinent part, the court's judgment provided:

"The Court makes the following conclusions of law:

"1. The Court determines that Mississippi law controls the duration and determination of the amount of child support, and therefore the Court concludes that child support shall be payable by the father to the mother until the child reaches the age of twenty-one (21), with no further post-minority support.

"2. The Court concludes that no prior modification of the terms of the previous order was affected by law, contract, or other conduct of the parties such that the current existing order remains $250.00 per month payable by the Defendant to the Plaintiff.

"3. The Court rejects the contention of the Plaintiff that a contract was established by the communications and letters of the parties and the conduct of the Defendant, in paying monies over and above $250.00 per month. The Court further finds that the Defendant is due no credit for any of said overpayments previously made.

"The Court further concludes the following facts:

"1. The Court finds the child's anticipated college expense beginning with the 2004-2005 academic year to be $40,735.00 to attend Tulane University.

"2. The Court finds that the child has received financial assistance in the amount of $23,635.00, yearly.

"3. The Court finds that pursuant to the terms of the previous order, from the Chancery Court of Mississippi, the Defendant is obligated to provide medical insurance for the benefit of the minor child, and pay a portion of any uncovered charges. The Court further finds that the Defendant maintains medical insurance for the benefit of the child.

"....

"5. The Court finds an unmet financial need for the child's college expenses of approximately $17,100.00 per year, and finds that the parties are similarly situated, economically, and able to share said expense equally....

"It is therefore ORDERED, ADJUDGED, and DECREED by the court that the Petition to Modify Child Support filed by the Plaintiff is hereby GRANTED, and the Court does ORDER that child support payable to the Plaintiff by the Defendant is hereby set at $712.50 per month beginning August of 2004. The Court ORDERS the Defendant to begin making $712.50 per month payments in the month of November 2004, and the Court awards a judgment to the Plaintiff in the amount of $1,387.50, against the Defendant, said judgment to be paid within ninety (90) days of this date.

"The Court awards a judgment for unpaid medical expenses, due pursuant to the previous order, in the amount of $319.53 in favor of the Plaintiff against the Defendant. Said sum is ORDERED to be paid within one hundred and twenty (120) days.

"....

"The Court does ORDER that child support will terminate upon the attainment of age twenty-one (21), by the child, as will the duty to provide medical insurance."

The court amended its judgment on October 28, 2004, to include a provision requiring that child-support payments be made through the court.

On October 29, 2004, C.K. filed a motion to alter or amend the judgment in which he asserted, among other things, that the court's decision to apply Mississippi law in determining the amount and duration of child support was erroneous. The court denied that motion on November 18, 2004.

C.K. filed his notice of appeal to this court on November 29, 2004. J.M.S. filed her notice of cross-appeal on December 13, 2004.

C.K. contends that the juvenile court erred when it concluded that Mississippi law was determinative of the duration and amount of child support he was obligated to provide for P.T.S. Citing Ala.Code 1975, § 30-3A-303(2), he points out that Alabama's version of the Uniform Interstate Family Support Act, Ala.Code 1975, §§ 30-3A-101 to -906 ("UIFSA"),¹ provides that courts of this state are required to apply Alabama law when determining "the duty of support and the amount payable...." He further points out that, when a foreign child-support order is registered in this state, the modification of that order "is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a court of this state...." Ala.Code 1975, § 30-3A-611(b). C.K. concludes that, because the juvenile court should have applied Alabama law in determining the duration and amount of child support that would be due from him, the juvenile court erred when it refused to hold that C.K.'s child-support obligation would terminate when P.T.S. reached 19 years of age.

J.M.S. responds that the juvenile court correctly determined that it should apply Mississippi law when determining whether and to what extent it should modify the 1987 judgment. As to whether Mississippi law was applicable to the modification of the duration of child support, J.M.S. points out that Ala.Code 1975, § 30-3A-611(c), prohibits a court of this state that has registered a foreign support order from modifying any aspect of that order that is unmodifiable under the law of the state in which the court that issued the order is located. J.M.S. also argues that the juvenile court was correct to apply Mississippi law with regard to the amount of support because Alabama does not recognize child support after age 19, and, because P.T.S. is entitled to support under Mississippi law until he turns 21, "there is no law to apply in determining the amount of child support other than that of Mississippi."

Alabama Code 1975, § 30-3A-611(b) and (c), read in pertinent part:

"(b) Modification of a registered child-support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a court of this state and the order may be enforced and satisfied in the same manner.

"(c) A court of this state may not modify any aspect of a child-support order that may not be modified under the law of the issuing state."

With regard to those subsections, the Official Comment states:

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