Wicker v. Hallman

• Decision Date: 25 August 2017
• Docket Number: 2160229
• Citation: 245 So.3d 627
• Parties: Michael Gregory WICKER v. Jennifer Lynn Wicker HALLMAN
• Court: Alabama Court of Civil Appeals

245 So.3d 627

Michael Gregory WICKER

v.Jennifer Lynn Wicker HALLMAN

2160229

Court of Civil Appeals of Alabama.

August 25, 2017

Jason T. Fleishman of Fleishman Law Firm, Tuscaloosa, for appellant.

Mark Sterling Gober, Tuscaloosa, for appellee.

THOMPSON, Presiding Judge.

Michael Gregory Wicker("the father") appeals from a judgment that the Tuscaloosa Circuit Court("the trial court") entered denying his petition for a modification of his child-support obligation and for the termination of an income-withholding order ("IWO").The petition was based on his assertion that he had paid his child-support obligation in full.

The record indicates the following.The parties have two children ("the children").According to the parties' divorce judgment entered in March 2005, the parties were awarded joint custody of the children, and no child support was ordered at that time.On November 26, 2008, the trial court entered a judgment ("the 2008 modification judgment") modifying the custody arrangement and awarding Jennifer Wicker Hallman("the mother") sole physical custody of the children, subject to the father's visitation.The trial court also ordered the father to pay child support of $900 each month.On January 8, 2009, the mother filed an affidavit of arrearage, claiming that, between December 3, 2008, and January 4, 2009, the father had not paid his entire child-support obligation and that an arrearage of $1,430.76 was due.Also on January 8, 2009, an IWO was issued pursuant to which a total of $1,100 was collected from the father each month—$900 for his child-support obligation and $200 to pay toward his arrearage.It is undisputed that the mother received the full $1,100 each month.

The record shows that the full $1,100 was still being withheld from the father's income in 2016.In March 2016, the father requested that the IWO be terminated.However, he withdrew that request, and on April 27, 2016, he filed a petition to modify child support.On June 27, 2016, the IWO was suspended pending the final hearing in this matter.

In an affidavit dated October 6, 2016, which the father submitted to the trial court, the father testified that he had not received notice of the mother's affidavit of arrearage and had not seen the IWO issued on January 8, 2009.He also said that he did not notice that too much was being deducted from his paycheck for his child-support obligation until his attorney notified him of that fact at the end of 2015.On November 9, 2016, the father filed a motion for a summary judgment.The father claimed that he had never been in arrears, and he sought the termination of the IWO and the modification of child support.He calculated that he had overpaid his child-support obligation by at least $16,800 from January 2009 to March 2016.The mother opposed the father's motion for a summary judgment, asserting that, each month, the father had voluntarily paid more than the amount of child support he was required to pay.

On November 21, 2016, the trial court heard arguments on the father's motion for a summary judgment.At the hearing, the father argued that, if he had known of the mother's contention that he was in arrears, he would have opposed it.He then went on to argue that he was entitled to a credit for the amount of child support he had overpaid.The trial court never ruled on the motion for a summary judgment and scheduled a hearing on the merits.

On December 19, 2016, a final hearing at which the trial court received evidence ore tenus was held on the father's motion to modify child support.¹At that hearing, the father testified that, in March 2016, after one of the children had reached the age of majority, he consulted his attorney to have his child-support obligation modified.He said that during that consultation was when he first became aware that he was paying more child support than the court had ordered in the 2008 modification judgment.The father said that he had not paid the additional $200 a month willingly.Under cross-examination, the father testified that he was aware that $1,100 was being withheld from his paycheck each month from January 2009 through the date he filed his petition for child-support modification.However, the father said, he did not know he was overpaying his child-support obligation.However, still under cross-examination, the father testified that he knew that, in the 2008 modification judgment, the trial court had ordered him to pay $900 a month in child support.He also reiterated that, since January 2009, he knew that $1,100 was being collected from his paycheck each month and that that was $200 a month more than he had been ordered to pay.Still, the father said, he did not know it was an overpayment.He said that he"thought the State was taking out what it was supposed to take out."

On December 27, 2016, the trial court entered a judgment modifying the father's child-support obligation to $836 each month.The child support was for the one child who was still a minor.The trial court also denied the father's request for a credit against his current child-support obligation for the amount he had overpaid from 2009 through April 2016, when the modification petition was filed.The trial court also ordered the father to pay the arrearage that had accrued since the IWO was suspended in June 2016.That arrearage totaled $3,871.33 as of the date the judgment was entered.The father timely appealed from the trial court's judgment.

The standard of review applicable for this appeal is well established.

" ‘When a trial court hears ore tenus evidence, its judgment based on facts found from that evidence will not be disturbed on appeal unless the judgment is not supported by the evidence and is plainly and palpably wrong.Thrasher v. Wilburn, 574 So.2d 839, 841(Ala. Civ. App.1990).Further, matters of child support are within the sound discretion of the trial court and will not be disturbed absent evidence of an abuse of discretion or evidence that the judgment is plainly and palpably wrong.Id.’

" Spencer v. Spencer, 812 So.2d 1284, 1286(Ala. Civ. App.2001).However, the trial court's application of law to facts is reviewed de novo.SeeLadden v. Ladden, 49 So.3d 702, 712(Ala. Civ. App.2010)."

Jones v. Jones, 101 So.3d 798, 802(Ala. Civ. App.2012).Furthermore, "[t]he ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses."Hall v. Mazzone, 486 So.2d 408, 410(Ala.1986).The rule applies to disputed issues of fact, whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.Born v. Clark, 662 So.2d 669, 672(Ala.1995).

In this case, the father contends that the trial court abused its discretion when it refused to give him credit against future child-support payments for the amount of child support he had overpaid.This appears to be a case of first impression in Alabama.In her arguments to the trial court, the mother cited authority from other jurisdictions to support her position that the father had voluntarily overpaid the amount of child support that was due each month and, therefore, that he was not entitled to a credit against future child-support payments.

Our review of decisions from other jurisdictions indicates that the prevailing rule is that a parent who has voluntarily exceeded the amount of payments owed on his or her child-support obligation is not entitled to a credit or setoff against future child-support payments.The Michigan Court of Appeals succinctly set forth the prevailing rule and the rationale behind the rule in Pellar v. Pellar, 178 Mich.App. 29, 443 N.W.2d 427(1989).In addressing whether overpayments of child support should be applied as a credit against future support obligations, the Pellar court wrote:

"The majority view of other jurisdictions is that the support obligor is not entitled to a credit as a matter of law for voluntary overpayments made prior to those obligations sought to be offset by the overpayments.See Anno: Right to credit on accrued support payments for time child is in father's custody or for other voluntary expenditures, 47 A.L.R.3d 1031, § 15, pp. 1055–1057.The rationale underlying the general rule is aptly stated in Harner v. Harner, 105 Ill.App.3d 430, 433, 61 Ill.Dec. 312, 434 N.E.2d 465(1982):

" ‘The general rule is that payments made for the benefit of children which are voluntary and not pursuant to a divorce decree may not be credited against other amounts due under the decree.This is true even where, as here, the payments are made under the mistaken belief that they are legally required.The policy underlying this rule is to prevent the supporting parent from, in effect, unilaterally modifying the support decree and thereby affecting the expectations of the custodial parent as to support payments.’[Citations omitted.]

"In Haycraft v. Haycraft, 176 Ind.App. 211, 215–216, 375 N.E.2d 252(1978), the court refused to recognize an overpayment credit, reasoning as follows:

" ‘Since [the parties] had no power to modify the terms of the original support order by means of an extrajudicial agreement, any excess payment made under that supposed agreement had to be considered a gratuity or at least a voluntary contribution for the support of the children, and not a prepayment of future support obligations.If noncourt approved prepayments, such as those which Dudley suggests, were to be permitted, it would be possible for a parent, who is obligated to pay support, to build up a substantial credit, then suddenly refuse to make support payments for several weeks, months, or even years, thus thwarting the court's purpose in setting the payments at certain specified intervals, that of providing regular, uninterrupted income for the benefit of that parent's children, who are in the custody of

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