Young v. Young

• Decision Date: 07 February 2020
• Docket Number: 2180190
• Parties: Mark J. YOUNG v. Tracy H. YOUNG
• Court: Alabama Court of Civil Appeals

322 So.3d 520

Mark J. YOUNG

v.Tracy H. YOUNG

2180190

Court of Civil Appeals of Alabama.

February 7, 2020

Benjamin W. Maxymuk and John A. Henig, Jr., of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant.

Stephanie M. Pollard of Beverlye Brady & Associates, Auburn, for appellee.

On Application for Rehearing

DONALDSON, Judge.

This court's no-opinion order of affirmance issued on August 23, 2019, is withdrawn, and the following opinion is substituted therefor.

Mark J. Young ("the father") appeals from a judgment of the Lee Circuit Court ("the trial court") in a postdivorce action involving child support. Although the judgment reduced the father's child-support obligation from $4,000 per month to $2,840 per month, the father contends that the trial court should have reduced it more than $1,160. We affirm.

Factual Background and Procedural History

The father and Tracy H. Young ("the mother") were divorced in April 2015 by a judgment that incorporated the parties' written settlement agreement ("the agreement"). The agreement provided that the parties would have joint legal and physical custody of their three children and, with respect to child support, provided, in pertinent part:

"[The father] shall pay the total sum of $4,000.00 per month as child support to [the mother] to be used for the support and maintenance of the minor children of the parties. Child support shall be reduced by one-third (1/3) as each child reaches the age of majority, enrolls in college, and/or becomes self-supporting. Said amount of child support is not in compliance with the Child Support Guidelines as established by the Supreme Court of Alabama as the parties' combined gross income exceeds the Guidelines and as the parties have agreed to a shared physical custody arrangement."

In June 2017, the mother commenced the present action by filing a petition seeking (1) a judgment holding the father in contempt based on the mother's allegation that the father had not paid child support since October 2016, (2) a money judgment against the father for the child-support arrearage that the mother alleged had accrued plus interest thereon, and (3) an award of attorneys' fees. The father answered the mother's petition and counterclaimed for a judgment terminating or reducing his child-support obligation. Thereafter, the mother answered the father's counterclaim, and, in July 2018, the trial court held a one-day bench trial at which it received evidence ore tenus. In August 2018, the trial court entered a judgment ("the postdivorce judgment") that determined that the father owed the mother a child-support arrearage in the amount of $36,000, ordered him to pay the arrearage at the rate of $2,000 per month, denied the mother's contempt claim, ordered the father to pay the mother $5,416 for attorneys' fees she had incurred in prosecuting the action, reduced the father's child-support obligation from $4,000 per month to $2,840, and explained the trial court's rationale for determining that the father's monthly child-support obligation should be $2,840:

"These two parties agreed at the time of their divorce to certain provisions of property settlement, alimony, custody, visitation, child support and other compromises as part of an integrated bargain. In that agreement which was made the Order of this Court, the father agreed to pay $4,000 in child support per month to the mother. In this case, the parties clearly contemplated many issues that are expressly set out in the agreement and likely others not set out in the agreement, including their perceived likelihood of receiving a more or less desirable outcome in court.

"Except for a period of time in which the parties were contemplating the possibility of reconciling, the father has consistently paid his child support. He now requests that his child support be terminated or reduced. The mother contended that the father should be bound to his original agreement and be held in contempt for the payments he has missed.

"While two parties to an agreement must consider future risks at the time of contract and bind themselves to that agreement even if their circumstances change in the future, the Court is not aware of any principle that would support allowing parties to so bind their children or prohibit a modification of child support in otherwise appropriate circumstances and when the best interests of the children require it. In fact, our courts have ‘consistently held that a child support order is always subject to modification based on a change of circumstances and a change in a parent's ability to pay.’ Lo Porto v. Lo Porto, 717 So. 2d 418 (Ala. Civ. App. 1998). Furthermore an order that prohibits modification is unenforceable. Cole v. Cole, 540 So. 2d 73 (Ala. Civ. App. 1989). However, when the modifying or not-modifying of an agreement is not likely to affect a child of the parties to the agreement, the policy of upholding parties' agreements should be considered.

"In this case, there is evidence of a substantial change in the non-paying spouse's ability to contribute, but little evidence of change in the children's needs. However, the cases that note the need to meet both of these prongs to justify modifying child support are –– to this Court's knowledge –– cases where the courts were analyzing the effects of the payor's change in income, not the payee's change in income. In those cases, the courts basically held that a payor's change in ability to pay, without a change in need by the child, would not necessitate a change in child support, especially where the parents' income exceeded the guidelines.

"The only substantial and continuing change[s] in this case [are] the mother's salary and commissions from her new job, the father's increase in pay, and the $1,000 per month gain by the father and loss by the mother as a result of the automatic alimony reduction.^[1] Here the concern is not whether the children should receive more or less support, as much as who should bear the burdens of that support. As such, this matter really does take on the nature of a dispute that materially affects the parents, not the children. The children's needs remain substantially the same and their support should as well, the only question is how will that support burden be distributed.

"The parties' prior agreement clearly contemplated that the mother's income would increase as the spousal support decreased. Because the child support deviated from the guidelines and was beyond the guidelines' contemplated income amounts, the parties could have agreed to a gradual reduction in child support as they did for the alimony. However they didn't. It appears that the parties contemplated the mother's income increasing to the point that after 6 years she would no longer need spousal support to maintain the financial lifestyle she held when she was married. However even under such a circumstance there was no provision for a reduction of child support.

"It does appear that one issue contemplated in assigning the child support amount may have been that the mother could watch the children instead of the father having to pay someone else to do it during his custodial weeks. Due to the mother's new employment, she is not as available as she once was. However this issue was remedied by the hiring of a nanny until the children reached their current ages which require less supervision.

"In determining child-support, the father alleges that the pass-through ‘taxable income’ from the mother's family's [registered limited-liability partnership (‘the RLLP’)] should be attributed to the mother as actual income. The pass-through income for tax purposes is a result of the way the Family RLLP was set up, and so is the fact that [the mother] does not have any authority to demand or control disbursements or the assets owned by the RLLP. This was acknowledged at the original divorce when the parties didn't include the RLLP tax income as actual income. The Court does not find that ‘taxable income’ which is merely ‘pass through’ income attributed to a RLLP member for tax purposes but not income actually delivered to the member or in their control, is income for purposes of child support calculation.

"The parties' original agreement was that the father would pay $4,000 per month in child support to the mother. At the time, the father was making 100% of the family income. The Court finds that, when adjusted for the change in the parties' current cash flow, he should now pay 71% of his original support amount, which remains above the scope of the State's child-support guidelines."²

The father timely filed a postjudgment motion asserting (1) that, because the mother had filed neither a CS-41 form nor her income-tax return for 2017, the trial court should amend the postdivorce judgment to state the amount of the mother's income the trial court had used to calculate the father's child-support obligation; (2) that the trial court had not considered all the mother's income from every source in calculating the father's child-support obligation, which, according to the father, was required by Alabama law; (3) that, even if it was proper to disregard the mother's income from sources other than her employment in calculating the father's child-support obligation, the trial court's calculation of the father's child-support obligation was nonetheless erroneous because, the father said, the mother's employment income alone constituted more than 29% of the parties' combined adjusted monthly gross income and, therefore, the trial court should not have required the father to pay 71% of the children's child support; (4) that the postdivorce judgment did not provide for a one-third reduction of the father's child-support obligation as each child reached the age of majority, as required by the agreement; and (5) that the trial court had awarded the mother attorneys' fees in the absence of sufficient evidence to support such an award. Following a hearing, the trial court...