Suggs v. Suggs

• Decision Date: 30 July 2010
• Docket Number: 2090078.
• Citation: 54 So.3d 921
• Parties: Victor G. SUGGSv.Melissa SUGGS.
• Court: Alabama Court of Civil Appeals

54 So.3d 921

Victor G. SUGGS

v.Melissa SUGGS.

2090078.

Court of Civil Appeals of Alabama.

July 30, 2010.

Victor G. Suggs, pro se.Submitted on appellant's brief only.BRYAN, Judge.

Victor G. Suggs (“the father”) appeals from a divorce judgment entered by the Covington Circuit Court insofar as it ordered him to pay child support for the child born during his marriage to Melissa Suggs (“the mother”).

The father, proceeding pro se, filed a complaint for a divorce in the trial court on April 25, 2009. In his complaint, the father alleged that one child had been born of the marriage between him and the mother, that there was no marital property to be disposed of, and that, at the time the complaint was filed, the father was incarcerated in the St. Clair Correctional Facility near Springville. On May 11, 2009, the mother, also proceeding pro se, filed an answer to the father's complaint for a divorce, and she requested child support. The mother subsequently filed an amended answer to the father's complaint for a divorce and filed a counterclaim for a divorce.¹

The trial court conducted an ore tenus hearing on September 3, 2009, and only the mother was present for the hearing. The mother stated that she was not employed and that the father had been a truck driver and had “had a restaurant and stuff like that” before he became incarcerated in 2002 or 2003. The mother stated that she thought that the father had been sentenced to 150 years in prison and that the child, who was 11 years old at the time of the hearing, was insured by Medicaid. At the close of the hearing, the trial court stated that it would “impute the minimum wage to [the father] and nothing for [the mother]” for purposes of establishing a child-support award.

On September 9, 2009, the trial court entered a judgment divorcing the parties on the ground of incompatibility and stating that the parties had previously divided all property and debts. The judgment ordered the father to pay child support in the amount of $232.50 a month; the judgment stated that Rule 32, Ala. R. Jud. Admin., had been followed and that the father's income had been imputed. The father was also ordered to pay for all “medical, dental, eye care, orthodontic, and prescription drug expenses” that were not covered by the child's insurance.

The father filed a motion to alter, amend, or vacate the divorce judgment pursuant to Rule 59, Ala. R. Civ. P. The father argued that the trial court had erred by ordering him to pay child support and all uncovered medical expenses of the child because, in light of the fact that he was incarcerated and “serving multiple life sentences,” he had no opportunity to obtain income in the foreseeable future. The trial court denied the father's postjudgment motion, and the father timely appealed to this court.

On appeal, the father maintains that the trial court exceeded its discretion by failing to follow the child-support guidelines found in the appendix to Rule 32. He argues that the trial court erred by imputing income to him for the purpose of entering a child-support order because it was undisputed that he was incarcerated and because he does not have any income. He also argues that the trial court erred when it ordered him to pay child support in light of the fact that neither party filed the appropriate standardized child-support forms as required by Rule 32(E), Ala. R. Jud. Admin.²

This court has consistently held that “matters relating to child support ‘rest soundly within the trial court's discretion, and will not be disturbed on appeal absent a showing that the ruling is not supported by the evidence and thus is plainly and palpably wrong.’ ” Scott v. Scott, 915 So.2d 577, 579 (Ala.Civ.App.2005) (quoting Bowen v. Bowen, 817 So.2d 717, 718 (Ala.Civ.App.2001)).

Initially, we note that a child in this State has an inherent right to receive support from his or her parents. Ex parte Tabor, 840 So.2d 115, 120 (Ala.2002) (quoting with approval Willis v. Levesque, 402 So.2d 1003, 1004 (Ala.Civ.App.1981)). However, an obligor parent's ability to pay child support is always an underlying factor to consider in setting a child-support award. See Comment to Rule 32, Ala. R. Jud. Admin. (as amended to conform to amendments effective October 4, 1993) (“The guidelines will provide an adequate standard support for children, subject to the ability of their parents to pay....”); and Burgett v. Burgett, 995 So.2d 907, 913 (Ala.Civ.App.2008) (quoting Dyas v. Dyas, 683 So.2d 971, 973–74 (Ala.Civ.App.1995)) (when the combined gross income of both parents exceeds the amount set forth in the child support guidelines the amount of child support awarded “ ‘must rationally relate to the reasonable and necessary needs of the child ... and must reasonably relate to the obligor's ability to pay for those needs....' ” (emphasis omitted)).

Despite the general rule that the obligor's ability to pay is always considered when establishing or modifying an award of child support, Rule 32 provides a trial court the authority to impute income to a parent if that court finds that the parent is voluntarily unemployed or underemployed. See Rule 32(B)(5), Ala. R. Jud. Admin. (“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent's imputed income.”). Although the trial court, in its judgment, did not explicitly conclude that the father was voluntarily unemployed, such a finding was implicit in the judgment that imputed income to the father despite his unemployment. See Stone v. Stone, 26 So.3d 1228, 1230 (Ala.Civ.App.2009) (quoting Turner v. Turner, 745 So.2d 880, 883 (Ala.Civ.App.1999)) (“ ‘The trial court did not make the explicit finding that the husband was voluntarily unemployed or underemployed. However, we conclude that such a finding is implicit in the language of the trial court's judgment [imputing income to the husband].’ ”). It is well settled that “the determination that a parent is voluntarily unemployed or underemployed ‘is to be made from the facts presented according to the judicial discretion of the trial court.’ ” Clements v. Clements, 990 So.2d 383, 394 (Ala.Civ.App.2007) (quoting Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992)).

This court has never addressed whether, in establishing an award of child support, a trial court may impute income to a parent who is incarcerated. However, we have previously stated that a trial court must exercise its discretion in child-support matters that concern an incarcerated obligor parent. See Grogan v. Grogan, 608 So.2d 397, 398 (Ala.Civ.App.1992) (trial court has discretion to suspend the accrual of child support while an obligor parent is incarcerated); and Alred v. Alred, 678 So.2d 1144, 1146 (Ala.Civ.App.1996) (in a proceeding to modify child support, the fact that the father was unemployed and incarcerated was a matter for consideration in determining his ability to pay child support). We have also consistently recognized the duty of a parent to provide support for his or her children. See, e.g., P.Y.W. v. G.U.W., 858 So.2d 265, 267 (Ala.Civ.App.2003) (“It is a basic principle of Alabama law that a parent has a duty to support his or her minor child and that this duty of support is a fundamental right of all minor children.”); and Davenport v. Hood, 814 So.2d 268, 275–76 (Ala.Civ.App.2000) (holding that contempt sanctions can be pursued to enforce a judgment for past-due child support even after a child has reached the age of majority or has become emancipated and recognizing that to do otherwise could allow an obligor parent to avoid his or her duty to support his or her children during their minority).

Because the trial court heard evidence that would support a finding that the father's unemployment was caused by his voluntary conduct, i.e., his criminal conduct that resulted in convictions that led to a 150–year jail sentence, the trial court did not exceed its discretion by concluding that the father was voluntarily unemployed. We recognize that the father, unlike other individuals who are voluntarily unemployed, does not have the option to remedy his situation by seeking employment. However, the father is similarly situated to other parents who are voluntarily unemployed because his unemployment was a result of actions and conduct that were within his control. “ ‘Criminal activity foreseeably can lead to incarceration and such activity is obviously within an individual's control.’ ” Yerkes v. Yerkes, 573 Pa. 294, 307, 824 A.2d 1169, 1176 (2003) (quoting In re Marriage of Thurmond, 265 Kan. 715, 729, 962 P.2d 1064, 1073 (1998)). Thus, we conclude that the trial court did not exceed its discretion in concluding that the father was voluntarily unemployed and that he remained obligated to support his child despite the fact that he was incarcerated at the time the judgment was entered.³

We recognize that this court has previously held that, when it has been demonstrated that a parent has no ability to pay child support, it is improper for the trial court to order a parent to pay child support. Hannah v. Hannah, 582 So.2d 1125, 1126 (Ala.Civ.App.1991). However, there is no evidence to indicate that the father does not have the ability to pay child support. We note that “[a] divorced parent's duty to contribute to the maintenance of his or her minor children is not limited to his or her wages, but may also include income derived from property holdings and any other earning capacity.” State ex rel. Smith v. Smith, 631 So.2d 252, 254 (Ala.Civ.App.1993); and Alred v. Alred, supra. See also Rule 32(B)(2), Ala. R. Jud. Admin. (defining “gross income” to include “income from any source,” including other than employment-related income, such as dividends, interest, trust income, gifts, and prizes).⁴

Because ...