Burson v. Burson

608 So. 2d 739, 1992 Ala. Civ. App. LEXIS 462, 1992 WL 238109
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 25, 1992
Docket2910303
StatusPublished
Cited by5 cases

This text of 608 So. 2d 739 (Burson v. Burson) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burson v. Burson, 608 So. 2d 739, 1992 Ala. Civ. App. LEXIS 462, 1992 WL 238109 (Ala. Ct. App. 1992).

Opinions

RUSSELL, Judge.

The father appeals from the trial court’s final order regarding, inter alia, child support modification and attorney fees.

By order of the District Court of Caddo Parish, Louisiana, the parties were legally separated in June 1989. The separation order provided that the father was to pay the mother $300 per month as support for the parties’ minor child. Incorporated into the separation order were a property settlement agreement and a joint custody plan approved by the parties.

In February 1991, following a petition by the father, the Louisiana court entered a judgment divorcing the parties. The judgment of divorce provided that custody of the minor child would continue to be governed by the original joint custody plan.

In April 1991 the mother, who moved to Alabama shortly after the parties’ separation, filed in the Tuscaloosa County Circuit Court a petition to modify the previous joint custody arrangement by placing sole custody of the parties’ child with her and curtailing the father’s visitation rights. (The father had moved to Georgia in the latter part of 1989.) The mother also requested that the father’s child support obligation be increased commensurate with the Child Support Guidelines found in Rule 32, Alabama Rules of Judicial Administration. The father counterclaimed, alleging that the mother, by seeking an increase in child support, had breached the terms of the property settlement agreement and custody plan originally part of the 1989 separation order. It was the father’s position that the property settlement agreement had provided for his assumption of the mother’s half of the marital debt as a form of “indirect” child support payments to the mother. Accordingly, he sought damages based on any increase in child support the court might order while he continued to satisfy the mother’s portion of the debt. In the alternative, the father sought an order revoking the property settlement agreement and directing the mother to reimburse him for amounts he had already spent satisfying her portion of the debt.

The Alabama and Louisiana courts conferred and agreed that, pursuant to the Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A (West 1980), and the Uniform Child Custody Jurisdiction Act, Ala. Code 1975, §§ 30-3-20 through -44, the Alabama court had jurisdiction over matters relating to child custody, child support, and any other proceedings concerning the welfare of the parties’ child. In a preliminary order entered in April 1991, the Alabama court specifically found that the proceedings that led to the Louisiana court’s judgment of divorce were limited solely to the issue of dissolution of the parties’ marriage.

On October 23, 1991, prior to a decision on the mother’s request for modification of child support, the Alabama trial court entered a “Partial Final Order,” incorporating an agreement of the parties with regard to custody and visitation. The mother was granted sole legal custody of the child, and the father’s visitation schedule was changed to protect the child from frequent long trips and extended periods away from the mother. The parties agreed to submit the issues of child support and attorney fees to the court on written briefs and supporting documents. In addition to filing a brief in support of modification, the mother filed an affidavit alleging a support arrearage on the part of the father.

On January 27, 1992, the trial court entered a final order finding a material change of circumstances and granting the mother’s modification petition. The court then applied the Child Support Guidelines to establish the father’s child support obligation as $609 per month. The father was also assessed $600, plus interest, in support arrearage. Additionally, the court entered a permanent restraining order as to both [741]*741parties and specifically prohibited the father from contacting the child’s day care and medical care providers in Tuscaloosa. The mother was awarded $7,500 in attorney fees. All other matters raised by the pleadings, including the father’s counterclaims, were deemed to be denied, overruled, or moot.

On appeal the father asserts that the trial court (1) abused its discretion by modifying his child support obligation; (2) erred in denying his counterclaims; (3) improperly assessed him for a support arrearage; (4) unreasonably restricted his parental rights through the restraining order; and (5) abused its discretion in awarding the mother an attorney’s fee.

As to the issue of child support modification, the father first contends that the mother failed to prove, as required by Alabama law, that there has been a material change in circumstances since the previous child support judgment by the Louisiana court.

Rule 32(A)(2)(i), A.R.J.A., provides that “[t]he provisions of any judgment respecting child support shall be modified ... only upon a showing of a material change of circumstances that is substantial and continuing.” Thus, when considering petitions for modification, the trial court may apply the Child Support Guidelines only after finding that a material change in the parties’ circumstances has occurred since entry of the last order of child support.

We note that the trial court has considerable discretion in matters of child support and that its determination as to whether circumstances warranting a modification have been proven will not be reversed on appeal unless it is so unsupported by the evidence as to be plainly and palpably wrong. Anderson v. Anderson, 590 So.2d 310 (Ala.Civ.App.1991). Factors to be considered by the trial court in determining whether there are changed circumstances are the needs of the child and the ability of the parents to respond to the child’s needs. Parker v. Firestone, 568 So.2d 824 (Ala.Civ.App.1990).

The record reveals that since moving from Louisiana to Tuscaloosa, Alabama, the mother has taken a job paying approximately $1,789 per month. The father, an attorney in Atlanta, Georgia, earns $4,184 per month. The parties stipulated to these earnings, and the trial court used these figures when applying the Rule 32 guidelines. In her affidavit attesting to changed circumstances, the mother averred that the expenses directly associated with the child’s needs have increased dramatically since the order of support in the June 1989 separation order. (A careful review of the record reveals that the separation order was the last judgment relating directly to child support.) The mother stated that the child, who was approximately 15 months old when the original order was entered, is now three years old and that “as the result of inflation as well as more expensive prices for clothing and the needs of the child at his older age, the need for additional child support has increased.” The mother also indicated that the child was now eating table food and that the expenses associated with additional educational toys and books have also increased. She further indicated that the child recently started attending a more expensive day care facility. This court has previously held that an increase in the age of the minor child and the correlative need for support, coupled with an increase in the cost of living due to inflation, are sufficient to constitute a material change of circumstances and to sustain a modification of child support. Miller v. Miller, 437 So.2d 574 (Ala.Civ.App.1983). We have reviewed the record and conclude that, the father’s contention notwithstanding, there was sufficient information before the trial court to show a materia] change in circumstances.

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Cite This Page — Counsel Stack

Bluebook (online)
608 So. 2d 739, 1992 Ala. Civ. App. LEXIS 462, 1992 WL 238109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burson-v-burson-alacivapp-1992.