State Dept. of Human Resources v. J.B.
| Decision Date | 08 October 1993 |
| Citation | 628 So.2d 889 |
| Parties | STATE DEPARTMENT OF HUMAN RESOURCES v. J.B. and W.B. AV92000579. |
| Court | Alabama Court of Civil Appeals |
William Prendergast and Mary E. Pons, Asst. Attys. Gen., for appellant.
Margaret Y. Brown, Auburn, for appellees.
RICHARD L. HOLMES, Retired Appellate Judge.
This case involves child support in a dependency case.
The record before this court reveals the following:
In 1990 J.B. and W.B. (hereinafter parents or father and mother) adopted four siblings. In March 1992 the oldest sibling (hereinafter the child) reported being sexually molested by her adoptive father. The father agreed to move out of the home until completion of the investigation of the incident. Subsequently, the father was indicted for rape in the first degree, and on the second day of the trial, he pleaded guilty to sexual abuse in the second degree as a result of plea negotiations.
The Department of Human Resources (DHR) removed the child from the home on April 2, 1992, because of a report that she was being harassed by her mother to drop the allegations against her father and was being ridiculed by her younger siblings. The child has remained in the custody of DHR since that time.
On August 21, 1992, DHR filed a petition for support. A hearing on the petition was held on October 27, 1992. At the conclusion of the hearing, the trial court entered an order, finding that the parents were liable to pay child support on behalf of the child who was in the custody of DHR and residing in a group home. Further, the court ordered that the amount of child support be set at "zero" until the court decided otherwise. Additionally, the trial court ordered that DHR determine and inform the court as to what happens to any excess money if child support is set in an amount larger than the amount required to meet the monthly boarding home payment of $241. Another hearing was set for January 7, 1993.
After the hearing on January 7, 1993, the court entered an order, finding that the child remained a dependent child within the meaning of Ala.Code 1975, § 12-15-1(10), and "[t]hat the child support amount will be set at 0.00, because if this Court orders [any] amount under $241.00, the minor child will not get any of it due to the board payment."
The dispositive issue on appeal is whether the juvenile court committed reversible error by refusing to require the legal parents of a minor child in the custody of DHR to pay child support and maintenance for that child in an amount established by Rule 32, A.R.J.A.
Initially, we note that this matter is governed by Ala.Code 1975, § 12-15-71(i), which provides in part:
When the legislature uses the word "shall" in a statute, the courts have traditionally held it to be mandatory. Ex parte Anonymous, 414 So.2d 72 (Ala.1982). Therefore, the wording of the statute mandates that the juvenile court order child support in the present case unless there was evidence that the parents did not have the resources to provide child support.
The parents argue that the record on appeal is insufficient for this court to determine the nature of the trial court's finding that the child support should be set at 0.00. While the record is not a paragon of clarity, it is sufficient for purposes of this appeal.
Our review of the record reveals that the order from the October 27, 1992, hearing lists (1) the mother's 1991 W-2 Wage and Tax Statement, showing yearly gross income of $27,083.05, and (2) the father's 1991 W-2 Wage and Tax Statement, showing yearly gross income of $23,400.00, as being introduced into evidence. In addition, this order indicates that the parents' attorney introduced into evidence three forms, showing the parents' average monthly expenses, debts, and net income. The transcript of the January 7, 1993, hearing reveals that these exhibits were available to the judge at that hearing. Further, the record indicates that the judge was aware that the parents own a second home, which has not been rented or placed on the market for sale.
The parents are correct in their assertion that their sworn testimony regarding their financial status was taken during the October 27, 1992, hearing and that this sworn testimony is not contained in the record on appeal.
However, the evidence as to income, as indicated above, is...
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