Griggs v. Griggs

• Decision Date: 13 May 1994
• Citation: 638 So.2d 916
• Court: Alabama Court of Civil Appeals
• Parties: Patricia Ann Staton GRIGGS v. Joe Rayburn GRIGGS. AV92000800.

Page 916

638 So.2d 916

Patricia Ann Staton GRIGGS v. Joe Rayburn GRIGGS.

AV92000800.

Court of Civil Appeals of Alabama.

May 13, 1994.

Walter Allen Davis, Huntsville, for appellant.

Nancy S. Gaines of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellee.

THIGPEN, Judge.

This modification case involves child support.

Patricia Ann Staton Griggs (mother) and Joe Rayburn Griggs (father) divorced in 1991, and, pursuant to an agreement incorporated into the divorce judgment, the mother was awarded custody of the parties' two minor children, and the father was ordered to pay child support of $375 per month per child, to maintain life insurance naming the children as beneficiaries, and to pay one-half of each child's college educational expenses. Pursuant to an agreement apparently made in January 1993, the divorce judgment was modified in March 1993, ordering the father to continue paying $375 per month child support for the parties' younger child, and clarifying the college expenses for which the father was required to pay one-half for the older child.

In February 1993, prior to the entry of the above-mentioned modification order, the father filed a petition for modification of the judgment, alleging that he was unemployed and that he was unable to meet his child support obligations. After ore tenus proceedings, the trial court entered an order in August 1993, reducing child support to $118.80 for the younger child; requiring the father to pay $1,485 for post-minority expenses for the 1993-94 school term for the older child; terminating the father's future obligation to pay post-minority educational expenses, but reserving the right to award such expenses upon future petitions; and terminating the father's obligation to maintain life insurance. The court further required the father to file copies of his 1993 tax returns with the court and to notify the court regarding any future employment. The mother appeals.

The issues on appeal are whether the trial court abused its discretion in reducing child support and whether the trial court abused its discretion in terminating the father's obligation to pay future post-minority educational expenses.

The mother first contends that the trial court abused its discretion by reducing child support. A prior child support order may be modified only upon a showing of a material change in circumstances that is substantial and continuing, and the burden is on the party seeking the modification. Rule 32(A)(2)(i), Ala.R.Jud.Admin.; Holliday v. Holliday, 590 So.2d 335 (Ala.Civ.App.1991). The modification of child support because of changed circumstances is a matter within the trial court's discretion, and its decision will not be disturbed absent a clear abuse of discretion. Holliday, supra.

The record reveals that at the time of the divorce, the father was employed at SCI Systems in Huntsville, and his gross monthly income was $3,000. The father testified that due to a reduction in force, he was laid off in February 1993, and from that time until June 1993, he received $165 per week in unemployment compensation, and he continued to seek employment. He testified that he had distributed approximately 90 resumes since being laid off, and that he had been on three job interviews, but that he had not received any employment offers. He further testified that his present wife purchased some tools for him, and that he began "doing odd jobs in construction, whatever I [could] find to do." Child support income forms indicate that the father's monthly income was $866 in July 1993.

This evidence supports a finding of changed circumstances. Once a change in circumstances is proven, Rule 32(A), Ala.R.Jud.Admin., establishes a rebuttable presumption that the correct amount of child support results from the application of the guidelines. Kellum v. Jones, 591 So.2d 891 (Ala.Civ.App.1991). The court considered the child support guidelines in this case and awarded support accordingly; however, the mother argues that the trial court should have imputed income to the father because, she says, he was voluntarily unemployed.

Prior to the amendment effective October 4, 1993, rule 32(B)(5), Ala.R.Jud.Admin., stated:

"If the court finds that either parent is voluntarily unemployed or underemployed, it shall impute that parent's income and calculate child support based on that parent's potential income which would otherwise ordinarily be available."

The trial court must determine that the paying parent is "voluntarily" unemployed or underemployed before it may impute income to that parent, and this determination is discretionary with the trial court. Winfrey v. Winfrey, 602 So.2d 904 (Ala.Civ.App.1992).

In the case sub judice, the record reveals conflicting evidence regarding whether the father requested to be laid off from his position or whether he was laid off simply due to a reduction in force. The father's supervisor testified that in January or February 1993, the father made an informal request to be...