Stinson v. Stinson, 2970499.

• Decision Date: 18 September 1998
• Docket Number: No. 2970499.,2970499.
• Citation: 729 So.2d 864
• Parties: Connie STINSON v. Phillip Wayne STINSON.
• Court: Alabama Court of Civil Appeals

729 So.2d 864

Connie STINSON v. Phillip Wayne STINSON.

No. 2970499.

Court of Civil Appeals of Alabama.

September 18, 1998.

Rehearing Denied October 23, 1998.

Certiorari Denied March 12, 1999.

M. Wayne Wheeler, Birmingham, for appellant.

Thomas B. Hanes of Barnett, Hanes, O'Neal, Duffee & Garfield, L.L.C., Birmingham, for appellee.

Alabama Supreme Court 1980298.

CRAWLEY, Judge.

The parties were divorced in 1994. The mother was awarded custody of the parties' two daughters, then 16 and 14 years of age, and the father was ordered to pay $600 per month in child support. He was also ordered to maintain medical insurance for the children and to reimburse the mother for onehalf of any medical expense not covered by that insurance. In addition, he was ordered to pay periodic alimony of $300 per month for 19 months and thereafter to pay $150 per month.

In February 1997, the father filed a petition to modify the divorce judgment, requesting that his alimony obligation be terminated and that his child support payment be reduced because the older daughter had reached the age of majority. The mother answered and counterclaimed, requesting an increase in alimony, post-minority support for the younger daughter, and reimbursement for one-half of the medical bills she had incurred on behalf of the children.

After a hearing, the trial court modified the divorce judgment by terminating the father's alimony obligation and by terminating the father's child support obligation for the older daughter. The court also ordered the father to pay $322 per month for the support of the younger daughter until she reached the age of majority, and then to pay post-minority support of $200 per month for 48 months for her college education. The court's order made the reduction in child support payments "effective retroactive to the month of March 1997." The court denied the mother's request for medical expense reimbursement. The mother appeals, arguing that the trial court erred by miscalculating the amount of child support due under the guidelines, by making its child support order retroactive, by terminating alimony, by awarding what she considers inadequate post-minority support, and by denying her claim for medical expense reimbursement.

I.

The mother contends that the trial court erred in computing the child support due under the guidelines because, she says, the court failed to include all of the father's sources of income. Specifically, she claims that the trial court failed to consider the father's bonuses and expense allowances as part of his gross income. Rule 32(B)(2)(a), Ala. R. Jud. Admin., defines "gross income":

"`Gross income' includes income from any source, and includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trusts, annuities, capital gains, Social Security benefits, workers' compensation benefits, unemployment insurance benefits, gifts, prizes, and preexisting periodic alimony."

(Emphasis added.) Rule 32(B)(4), in defining "other income," explains that

"[e]xpense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal living expenses."

(Emphasis added.) "In accord with Rule 32, Ala. R. Jud. Admin., the trial court must take into account all sources of income of the parents when computing support obligations. The trial court has no discretion in this matter." Massey v. Massey, 706 So.2d 1272, 1274 (Ala.Civ.App.1997) (emphasis added).

The father is employed by SCI, Inc., formerly known as Johns-Ridout's Funeral Service, as the location manager of a funeral home in Birmingham. He testified that his gross monthly pay was $3,156. On cross-examination, he acknowledged that he had also received, for the three quarters preceding the hearing on the petition to modify, a quarterly bonus of $1,185. In addition, he admitted that he had the use of a company car, a 1996 Chevrolet Caprice, for which his employer supplied the fuel and paid for the insurance. His employer also provided him with a clothing allowance, consisting of two suits per year. At trial, the father testified that he "received a [Form] 1099 for [his] car use," but that he did not remember the amount of income stated on that form.

The CS-42 form in the record reveals that the trial court calculated the father's child support obligation based upon a monthly gross income of $3,156. Rule 32 requires that, in determining child support obligations, bonuses and expense reimbursements be included in gross income. Massey v. Massey, 706 So.2d at 1274. See also Spillers v. Spillers, 707 So.2d 256 (Ala.Civ.App. 1997)

; Hubbard Hall v. Hubbard, 697 So.2d 486 (Ala.Civ.App.1997); Tucker v. Tucker, 681 So.2d 592 (Ala.Civ.App.1996); Rogers v. Sims, 671 So.2d 714 (Ala.Civ.App.1995). Because the trial court did not include the father's bonuses as income in calculating the father's child support obligation, we must reverse the judgment and remand the cause for a recomputation of the amount of child support due under the guidelines when all of the father's income is counted.

We are unable to ascertain from the record the value of the father's automobile and clothing-expense reimbursements. Rule 32(E) mandates that the parties file an "Income Statement/ Affidavit" (CS-41) form. Rule 32(F) requires the parties to verify the information on their CS-41 forms with tax returns or "such other documentation as the court directs." Rule 32(F) further mandates that

"[d]ocumentation of earnings used in preparing the [CS-41] form shall be maintained by the parties and made available as directed by the court."

When the record establishes that an obligor has additional income that he or she did not report on the guidelines form, but the appellate court is unable to determine the amount of that income, the appellate court may remand with directions that the trial court determine the amount. See In re Marriage of Griffin, 275 Mont. 37, 42, 909 P.2d 707, 710 (1996); Dalessandro v. Dalessandro, 366 Pa.Super. 479, 531 A.2d 518 (1987). On remand, we direct the trial court to have the father complete an accurate CS-41 form that includes and documents the value of his car and clothing-expense reimbursements. The trial court should then determine whether those reimbursements "are significant and reduce personal living expenses," and thus should be counted as income to the father.

II.

The older daughter reached the age of majority on April 29, 1996. The father filed his petition to modify on February 12, 1997. The trial court's judgment of October 31, 1997, terminated the father's obligation to pay child support for the older daughter and made the reduction in the father's child support obligation retroactive to March 1997.

The mother argues that, although a trial court has the authority to make an increase in child support retroactive to the date of the filing of a petition to modify, see State ex rel. Nathan v. Nathan, 680 So.2d 339 (Ala.Civ. App.1996),

it has no authority to make a reduction in child support retroactive. Neither Rule 32, Ala. R. Jud. Admin., nor the decisions interpreting the rule, support the mother's argument. Rule 32(A)(3)(a) states:

"The provisions of any judgment respecting child support shall be modified only as to installments accruing after the filing of the petition for modification."

By its terms, the rule allows the trial court to make any judgment modifying child support—not just a judgment increasing child support—retroactive to the date of the filing of the petition. In State ex rel. Dunnavant v. Dunnavant, 668 So.2d 851 (Ala.Civ.App. 1995), this court affirmed a trial court's retroactive modification that reduced child support.

The mother argues that it is an unfair hardship on her to repay the $2,224 in child support she received from the father between the time he filed his petition and the time of the court's modification order. We see no unfairness in the retroactivity order. The mother was aware that the divorce judgment required the father to pay child support "until [the] children become emancipated, marry or reach majority." The mother knew that the older daughter had reached the age of majority, and she understood that the father's petition to modify claimed that his support obligation to the older daughter had ended. Therefore, the mother should have been aware that she might have to repay any support she received for the older daughter after the father filed his petition to modify.

In Part I of this opinion, we instructed the trial court to recalculate the father's child support obligation by adding the father's bonuses to his income, and by determining whether the father's automobile and clothing expense allowances should be counted as income. When the trial court recalculates the father's child support obligation, it should also recalculate the amount that the mother owes the father for overpayment of child support, using the correct amount of child support as determined on remand.

III.

The mother maintains that the trial court abused its discretion by terminating the father's obligation to pay her alimony. At the time of the divorce, the mother was working and was attending nursing school. Her monthly gross income was $350. The father's monthly gross income was $2,200. The divorce judgment ordered the father to pay alimony of $300 per month for 19 months, at which time the mother was expected to finish nursing school, and then to pay alimony of $150 per month.

At the time of the modification hearing, the mother was working full time as a nurse and her monthly gross income was $2,130.61. She testified, however, that her income would soon be reduced because she planned to move to Pensacola, Florida, to take a part-time nursing job and to help care for her father, who had Alzheimer's disease. The mother testified that monthly...