T.K.W. v. State Dep't of Human Res. ex rel. J.B.

• Decision Date: 04 January 2013
• Docket Number: 2111034.
• Citation: T.K.W. v. State Dep't of Human Res. ex rel. J.B., 119 So.3d 1187 (Ala. Civ. App. 2013)
• Parties: T.K.W. v. STATE DEPARTMENT OF HUMAN RESOURCES ex rel. J.B.
• Court: Alabama Court of Civil Appeals

119 So.3d 1187

T.K.W.

v.STATE DEPARTMENT OF HUMAN RESOURCES ex rel. J.B.

2111034.

Court of Civil Appeals of Alabama.

Jan. 4, 2013.

Ginette A. Dow, Bessemer, for appellant.

Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.

THOMPSON, Presiding Judge.

The State Department of Human Resources(“DHR”), on behalf of J.B. (“the mother”), filed in the Bibb Juvenile Court(“the juvenile court”) a petition seeking to have T.K.W. (“the father”) held in contempt for his failure to pay a child-support arrearage as required by a November 20, 2009, judgment of the juvenile court.The father answered the contempt petition and argued that he was unable to pay the arrearage and had not wilfully refused to do so.

On October 24, 2011, the juvenile court transferred the matter to the domestic-relations docket of the Bibb Circuit Court(“the circuit court”).In December 2011, the father filed a motion asking that the action purportedly still pending in the juvenile court be “closed.”On December 8, 2011, the juvenile court entered an order granting that motion and stating that the action was “closed to further review” in the juvenile court.However, on February 22, 2012, the circuit court determined that it lacked subject-matter jurisdiction over the contempt action, and it ordered that the action be transferred back to the juvenile court.Also on February 22, 2012, the juvenile court entered an order, apparently in recognition of the transfer from the circuit court, that “reinstated” the contempt action in that court.We note that the same judge who presided over the contempt action in the juvenile court considered the action in the circuit court.

On February 23, 2012, the father filed in the juvenile court a “motion to set aside the order dated November 20, 2009,” which, as discussed infra, we treat as a motion filed pursuant to Rule 60(b), Ala. R. Civ. P., and he later amended that motion; in both the original motion and the amended motion, the father argued that the November 20, 2009, judgment was void.SeeRule60(b)(4).Later, the father moved that the juvenile-court judge recuse himself from the contempt action.On March 14, 2012, the juvenile-court judge denied the motion to recuse.On May 9, 2012, the juvenile court denied the father's Rule 60(b) motion.

The juvenile court conducted a hearing on the merits of DHR's contempt action.On May 17, 2012, the juvenile court entered a judgment determining the father to be in contempt and ordering, among other things, that an income-withholding order (“IWO”) in the amount of $500 per month be issued to the Social Security Administration with regard to the father's income from that agency.In reaching its May 17, 2012, judgment, the juvenile court made the following factual findings:

“1.The [father] was ordered by this court on the 20th day of November 2009, to pay the amount of $500 per month until his child-support arrearage obligation was met.Th[at judgment] was entered pursuant to an agreement between the parties at which the [father] was represented by counsel.

“2.The [father] has failed to comply with this Order of Support for at least the past six months and is $15,155.56 in arrears and interest as of the 9th day of May 2012.

“3.The [father] receives in excess of $5,300 per month from Social Security Disability, Veteran's Administration Pension and ‘CRSC.’¹

“4.The [father's] testimony indicated that he is in substantially the same financial situation currently as he was in November of 2009 when he entered into the agreement to pay $500 per month toward the child-support arrearage owed by him, and his testimony further demonstrates that he has substantial debts that he has willingly incurred and that he has continued to incur, some of which are even incurred month to month, which could have funded his support payments due pursuant to his agreement and the order of this court.

“5.The [father's] failure to make the required payments is due to his willful neglect and is NOT due to inability to pay.”

(Capitalization in original.)The father filed a postjudgment motion, which the juvenile court denied.The father timely appealed.

The record does not indicate whether the mother and the father were ever married or the date on which the father was first ordered to pay child support.The record indicates that the father's most recent child-support obligation for the child he had with the mother was $224 per month.The child had reached the age of majority at the time the juvenile court entered the November 20, 2009, judgment that DHR is seeking to enforce.

The father testified that he is a disabled veteran and that he is no longer able to work.The father testified that he suffered a traumatic brain injury and that his wife is his guardian and manages his financial affairs.The father stated that his wife was aware of the $500–a–month payment required by the November 20, 2009, judgment.

The evidence in the record on appeal indicates that the father's net monthly income is approximately $5,300; that amount includes $1,416 in Social Security disability benefits.The father testified that his monthly living expenses total approximately $5,000 per month.The father insisted that he could not afford to pay the $500 per month ordered in the November 20, 2009, judgment.We note that, after the entry of the November 20, 2009, judgment, DHR obtained a garnishment of the father's government retirement account, and, pursuant to that garnishment, it receives a $124 monthly payment toward the father's child-support arrearage.The father included the amount of that garnishment in his calculation of his monthly expenses.

DHR cross-examined the father regarding the expenses he claimed on his estimate of monthly expenses.In addition to payments for five policies of insurance, including life insurance, the father represented he has to repay several finance companies for various loans, including a purchase of furniture.The father denied that he ate at restaurants often, but DHR's cross-examination called that testimony into question.On DHR's questioning, the father admitted that his wife's monthly income of $900 in Social Security disability benefits is used, in addition to his own income, to meet the approximately $5,000 in household monthly expenses to which he testified.

The father testified that since the entry of the November 20, 2009, judgment, he has started receiving retirement income of approximately $250 a month.Otherwise, the father admitted that his financial situation is much the same as it was in November 2009, when he agreed to pay $500 monthly toward the arrearage and the juvenile court incorporated that agreement into the November 20, 2009, judgment.

The father first argues on appeal that the juvenile court could not issue an IWO to collect a child-support arrearage because the child has reached the age of majority.The father cites W.L.S. v. K.S.S.V.,810 So.2d 777(Ala.Civ.App.2001), andSheeley v. Chapman,953 So.2d 1252(Ala.Civ.App.2006), in support of his argument on appeal.Both of those cases have been superseded by statute.See§ 30–3–60 through –71, Ala.Code 1975.As this court recently explained:

“At one time, Alabama law did not allow the use of an IWO as a tool to collect unpaid child-support obligations from nonpaying obligors after the children who had been the subject of the underlying child-support awards had attained the age of majority.SeeW.L.S. v. K.S.S.V.,810 So.2d 777, 780(Ala.Civ.App.2001), andSheeley v. Chapman,953 So.2d 1252, 1259(Ala.Civ.App.2006).However, the statute relied upon in both W.L.S. and Sheeley,Ala.Code 1975, § 30–3–60, was amended in 2009 so as to allow for the issuance of IWOs for ‘enforcement post-majority of arrearages accrued during minority’ as well as accrued interest.SeeAla.Code 1975, § 30–3–60(10)c.”

Robbins v. State ex rel. Priddy,109 So.3d 1128, 1129 n. 1(Ala.Civ.App.2012).Section 30–3–60 now allows the issuance of an IWO to collect a child-support arrearage after the child has reached the age of majority.Therefore, we cannot say that the father has demonstrated error with regard to this issue.

The father also contends that the IWO was not valid because, he says, an IWO may be issued only to an “employer” and, he contends, the Social Security Administration is not his employer.However, the father failed to assert that argument before the juvenile court, and it cannot be raised for the first time on appeal.Norman v. Bozeman,605 So.2d 1210, 1214(Ala.1992)(“Our review is limited to the issues that were before the trial court—an issue raised on appeal must have first been presented to and ruled on by the trial court.”).

The father next argues that the juvenile court could not issue an IWO in the amount of $500 a month against his income from the Social Security Administration because that amount is greater than 25% of the amount of his monthly Social Security benefits.In making that argument, the father cites § 6–10–7,Ala.Code 1975, which provides that no more than 25% of a source of income may be subject to garnishment.In McNabb v. State ex rel. Rhodes,890 So.2d 1038(Ala.Civ.App.2003), this court considered the interplay between § 6–10–7and§ 30–3–67, which provides that IWOs have priority over other garnishments and that up to 50% of an obligor's income may be subject to withholding pursuant to an IWO.²In McNabb,supra, the trial court held that an obligor's workers' compensation award could be subject to multiple IWOs that totaled 50% of the amount of the settlement proceeds.This court affirmed, holding that IWOs for child support are not subject to the 25% limitation on a garnishmentset forth in § 6–10–7.This court then explained:

“To be clear, the federal Consumer Credit Protection Act provides that an order for support shall not exceed 50% of an individual's disposable...