Cunningham v. Cunningham

• Court: Alabama Court of Civil Appeals
• Writing for the Court: L. CHARLES WRIGHT
• Citation: Cunningham v. Cunningham, 641 So.2d 807 (Ala. Civ. App. 1994)
• Decision Date: 18 February 1994
• Parties: Winfield CUNNINGHAM v. Debra CUNNINGHAM. AV93000082.

Page 807

641 So.2d 807

Winfield CUNNINGHAM v. Debra CUNNINGHAM.

AV93000082.

Court of Civil Appeals of Alabama.

Feb. 18, 1994.

Rehearing Denied March 25, 1994.

Certiorari Denied May 27, 1994

Alabama Supreme Court 1930999.

Lindsey Mussleman Davis of Holt, McKenzie, Holt and Mussleman, Florence, for appellant.

Charles W. Cochran III, Florence, for appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

The parties were divorced in 1987. The mother was awarded custody of the parties' two minor children, and the father was ordered to pay $725 per month in child support. In July 1993 the father filed a petition to modify, requesting that his child support obligation be reduced and that the terms of visitation be clarified. Following oral proceedings, the trial court denied the father's request to reduce his child support obligation, found the father to be in contempt and in arrears in his payment of child support, and made visitation with the minor children discretionary with the mother. The father appeals.

Initially, the father asserts that the court erred in refusing to reduce the amount of his monthly child support obligation.

A prior child support award may be modified only on proof of changed circumstances, and the burden of proof rests on the party seeking the modification. Kellum v. Jones, 591 So.2d 891 (Ala.Civ.App.1991). The modification of child support for changed circumstances is a matter strictly within the trial court's discretion. The trial court's decision will not be disturbed on appeal unless there is a clear abuse of discretion. Kellum.

Once a change in circumstances is proven, Rule 32(A), A.R.Jud.Admin., establishes a rebuttable presumption that the correct amount of child support results from the application of the guidelines. Kellum. If the trial court finds that either parent is voluntarily unemployed or underemployed, it may impute that parent's income and calculate the child support accordingly. Rule 32(B)(5), A.R.Jud.Admin.

The father insists that the recent loss of his job presented the requisite change in circumstances to warrant a reduction. The mother contends that the father's loss of employment was voluntary and therefore not subject to a reduction.

The record reflects that the father was employed as a radiological control technician with the Tennessee Valley Authority. He had been so employed for 13 years. At the time of the divorce, he was making between $40,000 and $50,000 annually. In 1991 he earned approximately $70,000, and in 1992 he earned approximately $82,000. In April 1993, after the father tested positive for cocaine use, his employment was terminated. The termination came after his employer had given him warning and a second chance. The father testified that he started using crack cocaine in 1992 and that he had prior drug and alcohol problems going back to 1987.

The father testified that he has been unable to find employment and that he has no independent resources from which to pay the child support obligation.

The trial court apparently determined that, due to his misconduct, the father was voluntarily unemployed and that he was capable of finding some form of employment. In view of the discretion afforded the trial court under Rule 32(B)(5), A.R.Jud.Admin., we can find no error in the trial court's refusal to reduce the father's child support obligation. We recognize that the effect of the judgment will be to allow a deficiency to accumulate. However, it will be an incentive for the father to stay off drugs and to find employment.

The father asserts that the trial court erred in finding him in arrears in the amount of $3,987.50.

Child support payments become final judgments on the date they are due and are immune from change. Logue v. Jordan, 598 So.2d 997 (Ala.Civ.App.1992). One may defend against an action for the collection of past due child support payments by showing payment or discharge. Logue.

The determination of arrearage by the trial court will not be disturbed on appeal unless it is unsupported by the evidence and is plainly erroneous...