Lee v. Lee

• Decision Date: 16 October 1992
• Citation: 608 So.2d 1383
• Parties: James Fitzhugh LEE, Sr. v. Angelia Colleen LEE. 2910419.
• Court: Alabama Court of Civil Appeals

Page 1383

608 So.2d 1383

James Fitzhugh LEE, Sr. v. Angelia Colleen LEE.

2910419.

Court of Civil Appeals of Alabama.

Oct. 16, 1992.

Joel Lee Williams, Troy, for appellant.

James R. Fuqua of Fuqua & Kominos, Ozark, for appellee.

RUSSELL, Judge.

The father appeals from a judgment of the trial court ordering him to pay child support pursuant to Rule 32, Alabama Rules of Judicial Administration, and finding him to be in contempt of court.

The mother filed a complaint for divorce and a motion for pendente lite child support in October 1991. On October 18, 1991, the trial court issued an order directing the father to provide both the clerk of the court and the mother with a completed Child Support Guideline income statement/affidavit and supporting documents. The father was directed to comply with this order within seven days and to begin payment of temporary child support to the mother on the date of his compliance.

On November 15, 1991, the mother filed with the trial court a motion to have the father held in contempt, alleging that the father had failed to commence payment of temporary child support. On December 6, 1991, after a hearing on the mother's motion, the trial court found the father in contempt for his failure to comply with its order concerning the filing of an income statement/affidavit and the payment of temporary child support. The court ordered that the father serve one day in the county jail; however, he could purge himself of contempt by immediately filing the requisite statement/affidavit with the court clerk and by commencing payment of temporary child support to the mother. The trial court further ordered the father to pay the mother $150, within 30 days, for her attorney's fee.

The divorce action was heard on March 11, 1992. Prior to trial the parties stipulated that the mother would have custody of the two minor children. The parties further stipulated to the division of property and the payment of marital debts.

The primary issue for determination at trial was the father's child support obligation under Rule 32, A.R.J.A. Considerable testimony was presented as to the father's employment history, his current income, and his earning potential.

The mother also testified at trial that the father had not paid her attorney's fee of $150 as ordered by the trial court on December 6, 1991. The father testified that he had forgotten to make this payment but that he was prepared to pay the mother. The record shows that the father paid this money to the mother during the trial, in the presence of, and with the knowledge of, the trial court.

The trial court entered a final judgment of divorce on March 17, 1992. In this judgment the court found that the father was presently "voluntarily unemployed and underemployed." Consequently, it ordered the father to pay monthly child support of $506 based on imputed income, pursuant to Rule 32(B)(5), A.R.J.A. The trial court further found the father to be in contempt of court for his failure to timely comply with its previous order requiring him to pay the mother's attorney's fee. The father was ordered to serve one day in the county jail. Following a post-trial motion from the father, the trial court modified the contempt citation and ordered the father to pay a fine of $150 in lieu of the jail sentence.

On appeal the father first contends that the trial court erred in holding that he was voluntarily unemployed or underemployed and in ordering him to make child support payments based on his imputed income.

We note that where, as in this case, the trial court is presented ore tenus evidence, its judgment will be presumed correct and will not be disturbed on appeal unless it is shown to be plainly and palpably wrong. Blankenship v. Blankenship, 534 So.2d 320 (Ala.Civ.App.1988). We would also note that actions concerning child support that are filed on or after October 9, 1989, although guided by mandatory consideration of Rule 32, A.R.J.A., are still committed to the sound discretion of the trial court. Belser v. Belser, 558 So.2d 960 (Ala.Civ.App.1990).

The record shows that, except for a period of a few months, the father was employed and earning approximately $25,000 to $28,000 per year from the time of the parties' marriage in October 1985 until August 1991. Just prior to the parties' separation in August 1991, the father was terminated from his job as an insurance agent for a company he had worked for since 1989. The father testified that he was earning approximately $25,000 per year at the time of his termination, although other testimony indicated that the father's gross income for 1990 was $27,000. The father claimed that his employment was terminated because of his own wrongdoing, stating that he was fired for mishandling clients' insurance premiums. The record also reveals that from 1985 to 1989 the father worked for a beverage company. The father testified that he had voluntarily quit that job at a time when he was making approximately $28,000 per year.

The manager of the insurance company where the father had been employed testified that the father had originally approached him about leaving his job and that the termination of the father's employment had been mutually agreed upon. He stated that the father's termination notice did not reflect that the father had been fired for...