Humber v. Humber

• Decision Date: 12 May 2017
• Docket Number: 2150922
• Citation: 238 So.3d 668
• Parties: Melissa Kay HUMBER v. Austin Levi HUMBER, Jr.
• Court: Alabama Court of Civil Appeals

238 So.3d 668

Melissa Kay HUMBER

v.Austin Levi HUMBER, Jr.

2150922

Court of Civil Appeals of Alabama.

May 12, 2017

Mark B. Turner, Birmingham, for appellant.

Submitted on appellant's brief only.

THOMPSON, Presiding Judge.

Melissa Kay Humber ("the mother") appeals from a judgment of the Walker Circuit Court ("the trial court") suspending the child-support obligation of Austin Levi Humber, Jr. ("the father"), "until such time [as the mother] can prove to the Court beyond a reasonable doubt that [the father] can pay the court ordered child support."

The record indicates the following. The parties divorced in 2003. According to the pleadings in this matter, on June 23, 2006, the trial court ordered the father to pay child support in the amount of $1,299 for the parties' two children. On September 16, 2015, the father filed in the trial court a petition to modify his child-support obligation alleging that, since the entry of the June 2006 order, there had been a material change in circumstances warranting modification of that order. At the May 27, 2016, hearing on the modification petition, the father testified that he had worked for United States Steel Corporation ("USX") for 21 years but that he had been laid off on August 23, 2015. The father testified that whether USX would call him back was "still up in the air."

Evidence demonstrated that, before he was laid off, the father's annual gross income was $53,463. When the 2006 child-support order was entered, the father had earned a gross annual income of $64,800. At the time of the hearing, the father testified that the unemployment benefits he had received from the State of Alabama because of the layoff had expired. However, the record indicates that he had not sought to make a new claim for further state unemployment benefits, which his notice of final payment under his initial claim directed. The father testified that he still received "supplemental unemployment benefits" from USX. Documents showed that, from January 1, 2016, to April 2, 2016, the father had received $5,394 from USX. He said that he received from USX a net income of $465 every two weeks but that he would lose the supplemental unemployment benefits after he had been laid off for two years. He also continued to receive family health insurance through USX. The father testified that he is not able to meet his monthly child-support obligation of $1,299 because, he said, he does not even bring home that much money each month. Evidence indicates that the father had made partial payments of varying amounts toward his child-support obligation at various times since being laid off.

The father said that he had applied for dozens of jobs since being laid off from USX and that he had even had some offers. However, he said, the jobs he was offered paid between $8 and $9 an hour. The father testified that, after taxes, he received approximately the same amount from his supplemental unemployment benefits from USX as he would have received from those jobs. Furthermore, if he took one of those jobs, the father said, USX required that he take the new employer's health insurance as his primary insurance. USX provided the family with health insurance at no cost to the father. The father said that he felt like he was "stuck between a rock and a hard place" regarding whether it was better to remain unemployed and rely on his USX supplemental unemployment benefits or to accept a lower-paying job.

The father testified that, at the time of the hearing, he was enrolled in a program that "pays for people that were displaced because of foreign products to learn another trade," and, through that program, he was enrolled at a community college, taking courses to become an electrician.

The father also testified that, when he was laid off, he was just two days from being fully vested with USX for retirement purposes. He explained USX's retirement policy and said that, because of the layoff, he now had to wait until August 2017, the month he turns 47, to be eligible to receive his pension. He said that he did not know the specific amount his pension benefit would be at that time, but he estimated that it would be between $2,200 and $2,500 a month.

The mother testified that she was an area supervisor for a fast-food restaurant. She said that her gross annual income at the time of the hearing was $89,400. At the time of the hearing, the parties' children were ages 16 and 14.

The evidentiary hearing was held on May 27, 2016. That same day, the trial court filed a completed "Child–Support Guidelines" form ("the CS–42 form") on which it calculated the parties' respective child-support obligations. The form reflects that the father had a gross monthly income of $1,560 and that the mother had a gross monthly income of $7,450. The trial court determined that the father's percentage share of income was 17.31% and that his basic child-support obligation, reflected on line four of the form, was $1,438. However, on line eight of the form, the trial court found that the father's child-support obligation was $318.23. The trial court then gave the father a $400 adjustment for the payment of health insurance for the children, resulting in a deficit of $81.77 as the "recommended child support order."

Also on May 27, 2016, the trial court entered a judgment finding that, as a result of being laid off from USX, the father's income had been "dramatically reduced from over $5,000 a month to only receiving unemployment supplemental income of $250 every two weeks. Once [the father] was laid off, his ability to pay his child support was impaired if not completely damaged." In the judgment, the trial court stated:

"Once [the father] provided the Court the evidence of his inability to pay the court ordered amount, [the mother] was obligated to prove beyond a reasonable doubt that [the father] was financially able to pay the amount of child support ordered. She did not provide the evidence to support the evidentiary burden imposed by law."

The trial court also found that the father could not "obtain work at a sufficient income level to pay his child support without sacrificing his children's health." The judgment continued:

"The Court did calculate child support taking into consideration a $9 an hour at 40 hours a week job for [the father] with him still paying the health insurance and [the mother's] current income. His child support payment would be –$82 a month. The parties can recognize a negative child support amount is contrary to the law so the child support guidelines will not be followed."

The trial court then directed that the father's child-support obligation be terminated.¹

On June 24, 2016, the mother filed a timely motion to alter, amend, or vacate the judgment in which she asserted, among other things, that the father had not sought a termination of his child-support obligation but only a reduction in that obligation and that the evidence did not support the trial court's judgment. The next day, June 25, 2016, the trial court amended its judgment to suspend the father's child-support obligation, as opposed to terminating child support, "as of November 1, 2015, until such time [as the mother] can prove to the Court beyond a reasonable doubt that [the father] can pay the court ordered child support." On July 19, 2016, the trial court entered an order denying the mother's postjudgment motion.

The mother filed a timely notice of appeal to this court. The father did not submit a brief on appeal.

On appeal, the mother asserts that the father did not meet his burden of demonstrating that his changed circumstances were both substantial and continuing; therefore, she says, a modification of the father's child-support obligation was not warranted. Specifically, the mother argues that the father failed to demonstrate that his reduction in income was not just temporary and that he could not earn sufficient income to meet his child-support obligation.

The applicable standard for reviewing this issue is well settled:

" ‘When a trial court hears ore tenus evidence, its judgment based on facts found from that evidence will not be disturbed on appeal unless the judgment is not supported by the evidence and is plainly and palpably wrong. Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala. Civ. App. 1990). Further, matters of child support are within the sound discretion of the trial court and will not be disturbed absent evidence of an abuse of discretion or evidence that the judgment is plainly and palpably wrong. Id.’

" Spencer v. Spencer, 812 So.2d 1284, 1286 (Ala. Civ. App. 2001). However, the trial court's application of law to facts is reviewed de novo. See Ladden v. Ladden, 49 So.3d 702, 712 (Ala. Civ. App. 2010)."

Jones v. Jones, 101 So.3d 798, 802 (Ala. Civ. App. 2012).

"An award of child support may be modified only upon proof of a material change of circumstances that is substantial and continuing. Browning v. Browning, 626 So.2d 649 (Ala. Civ. App. 1993). The parent seeking the modification bears the burden of proof. Cunningham v. Cunningham, 641 So.2d 807 (Ala. Civ. App. 1994). Whether circumstances justifying modification of support exist is a matter within the trial court's discretion. Id. We will not disturb the trial court's decision on appeal unless there is a showing that the trial court abused that discretion or that the judgment is plainly and palpably wrong. Id.; Douglass v. Douglass, 669 So.2d 928, 930 (Ala. Civ. App. 1995)."

Romano v. Romano, 703 So.2d 374, 375 (Ala. Civ. App. 1997) (emphasis added). The mother has not challenged the burden of proof the trial court imposed on her in this matter. Therefore, any argument she could have made on appeal regarding whether the trial court applied the correct burden of proof in this case is deemed waived. Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the...