H.J.T v. State Of Ala. Ex Rel. M.S.M

• Decision Date: 09 October 2009
• Docket Number: 2080595.
• Citation: 34 So.3d 1276
• Parties: H.J.T.v.STATE of Alabama ex rel. M.S.M.
• Court: Alabama Court of Civil Appeals

34 So.3d 1276

H.J.T.v.STATE of Alabama ex rel. M.S.M.

2080595.

Court of Civil Appeals of Alabama.

Oct. 9, 2009.

[34 So.3d 1276 1277]

Jay E. Stover of Stover, Stewart & Phillips, LLC, Gadsden, for appellant.

Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, staff atty., Department of Human Resources, for appellee.

THOMPSON, Presiding Judge.

In October 2007, H.J.T. (“the father”) filed in the Calhoun Circuit Court, Family Division (“the trial court”), a complaint seeking a modification of his child-support obligation for J.D.T. (“the child”).¹ The State of Alabama, on behalf of the child's mother, M.S.M. (“the mother”), answered and disputed the necessity of a modification of child support. The father's child-support-modification action was designated by the trial court as case number CS-05-423.02 (“the child-support action”).

In June 2008, the State of Alabama, on behalf of the mother (hereinafter “the State”), filed a separate action seeking to have the father held in contempt for his failure to pay child support. The trial court designated the State's contempt action as case number CS-05-423.03 (“the contempt action”). The father did not answer the State's contempt complaint, but in September 2008 the father filed a motion seeking to consolidate the child-support action and the contempt action. The trial court granted the motion to consolidate.

The trial court conducted a hearing for both actions. On February 24, 2009, the trial court entered a judgment in the contempt action finding the father in contempt for his failure to pay child support, awarding the State a judgment in the amount of $31,583.50 for past-due child support and interest and ordering that the father be incarcerated.² In addition, in its February 24, 2009, judgment, the trial court ordered that the father's income-tax refund be applied as a partial payment on the accumulated child-support arrearage. On March 2, 2009, the State filed a motion in the contempt action asking the trial court to amend the provision of the February 24, 2009, judgment pertaining to the disposition of the father's income-tax refund.

[34 So.3d 1276 1278]

The trial court purported to grant the State's motion on March 17, 2009.

On March 19, 2009, the trial court entered a judgment in the child-support action in which it denied the father's request for a modification of his child-support obligation.

On March 31, 2009, the father filed a notice of appeal. In his notice of appeal, the father designated the appeal as having been taken from the judgment in case number CS-05-423.03, i.e., the contempt action. However, on the docketing statement, the father designated case number “CS-05-423” as the matter from which he appealed, and he listed as the only issue on appeal the propriety of the trial court's denial of his claim seeking a modification of his child-support obligation. In his brief submitted to this court, the father argues only that the trial court erred in refusing to modify his child-support obligation. Accordingly, construing the filings in favor of the father and applying the policy in favor of resolving the matter on the merits, we conclude that the father's appeal pertains to the child-support-modification judgment entered in case number CS-05-423.02. See Brindley Constr. Co. v. Flanagan Lumber Co., 441 So.2d 907, 909 (Ala.Civ.App.1983) (“This court's policy is to determine every case upon its merits if we can reasonably and rationally do so without undue stress to the statutes, rules or precedents which govern our review of cases.”).

As an initial matter, we note that this court asked the parties to brief the issue of the timeliness of the father's appeal. The father maintains that the appeal is timely when measured from the date the most recent order by the trial court was entered. Because the father's appeal is taken from the March 19, 2009, child-support judgment, we agree.

“[W]hen two or more actions are consolidated under Rule 42, Ala. R. Civ. P., the actions do not lose their separate identities. League v. McDonald, 355 So.2d 695, 697 (Ala.1978). Moreover, ‘[a]n order of consolidation does not merge the actions into a single [action], change the rights or the parties, or make those who are parties to one [action] parties to another.’ Jerome A. Hoffman, Alabama Civil Procedure § 5.71 (2d ed.2001) (citing Evers v. Link Enters., Inc., 386 So.2d 1177 (Ala.Civ.App.1980)). Finally, ‘ “in consolidated actions ... the parties and pleadings in one action do not become parties and pleadings in the other.” ’ Ex parte Flexible Prods. Co., 915 So.2d 34, 50 (Ala.2005) (quoting Teague v. Motes, 57 Ala.App. 609, 613, 330 So.2d 434, 438 (Civ.1976)).”

Solomon v. Liberty Nat'l Life Ins. Co., 953 So.2d 1211, 1222 (Ala.2006). When actions are ordered consolidated, “each action retains its separate identity and thus requires the entry of a separate judgment.” League v. McDonald, 355 So.2d 695, 697 (Ala.1978). Accordingly, the February 24, 2009, judgment disposed of the contempt action, and the March 19, 2009, judgment resolved the child-support action.

Actions concerning child support are generally governed by the Alabama Rules of Juvenile Procedure. See M.C. v. L.J.H., 868 So.2d 465 (Ala.Civ.App.2003) (an action designated “CS” indicated a juvenile-court child-support matter); H.E.T. v. State ex rel. C.D.L., 883 So.2d 706, 709 (Ala.Civ.App.2003) (a “CS” designation generally refers to a child-support action in a juvenile court) abrograted on other grounds by F.G. v. State Dep't of Human Res., 988 So.2d 555 (Ala.Civ.App.2007). The judgment establishing the father's paternity of the child and his child-support obligation was entered by the trial court in August 2006; such actions are governed

[34 So.3d 1276 1279]

by the Alabama Rules of Juvenile Procedure. C.D.W. v. State ex rel. J.O.S., 852 So.2d 159 (Ala.Civ.App.2002).³

A notice of appeal in a juvenile action must be filed within 14 days of the date of entry of the judgment or the denial of a postjudgment motion. Rule 4(a)(1), Ala. R.App. P. In this case, the father filed his notice of appeal on March 31, 2009, within the 14 days allowed to appeal the March 19, 2009, judgment in the child-support action. Accordingly, we conclude that the father's appeal of the child-support judgment was timely filed.⁴

The record indicates that in the August 2006 judgment establishing the father's paternity and his child-support obligation, the trial court determined the father's gross monthly income to be $6,737. The August 2006 judgment did not contain a finding regarding the mother's income. The father's child-support obligation as established by the August 2006 judgment was $875 per month.

The record reveals that at the time the initial child-support obligation was established, the father owned and operated his own trucking business. After the entry of the initial, August 2006, judgment, the mother filed a contempt action seeking a determination of a child-support arrearage. As a result of that action, the father was ordered to pay $218.75 a month toward the child-support arrearage in addition to his monthly child-support obligation.

The father testified at the final hearing in this matter that recent increases in the price of fuel had caused his trucking business to fail. The father testified that in 2007 he had filed for both business and personal bankruptcy. The father stated that the personal-bankruptcy case had been dismissed because he could not make the required payments to the bankruptcy court. The father presented no evidence regarding the bankruptcy proceeding pertaining to his trucking business, but the record indicates that that trucking business is no longer operational.

The father testified that after the failure of his trucking business, he was unemployed for several months during 2007 and that he then found employment with a trucking company. The father testified that he earned $500 per week at his employment, which involves “short haul” trucking. The father submitted an income affidavit indicating that his gross monthly income is $2,115. The father stated that although he could earn more for long-haul trucking, as he had when he owned his trucking business, he would no longer take long-haul-trucking jobs because he had children and a family.

[34 So.3d 1276 1280]

The father admitted that since August 2006 he had made only seven payments toward his child-support obligation. In addition, the mother received some amounts for child support collected as a result of the father's bankruptcy action.

The father testified that he had attempted to make other child-support payments for the child. The father has two children (“the older children”) from a previous relationship for whom he has also been ordered to pay support; the father also owes an arrearage for failure to support those children. The evidence indicates that all, or a great portion, of the child-support payments the father has made have typically been attributed to his child-support obligation for the older children. The father testified that he has no control over how the child-support agency to which he sends checks allocates or distributes his child-support payments. The father has made no child-support payments directly to the child's mother.

In addition to the older children and the child, the father has two children with his current wife. The father presented evidence regarding his expenses, which included the preexisting child-support obligations. The father argued to the trial court that he could not afford his current child-support obligation for the child.

On appeal, the father argues only that the trial court erred in refusing to modify his child-support obligation. The State argues that the father failed to demonstrate a change in circumstances warranting the modification. It is well settled that a party seeking to modify a child-support obligation must demonstrate a material change in circumstances warranting the modification. State ex...