Gb v. Jh

915 So. 2d 570, 2005 Ala. Civ. App. LEXIS 304, 2005 WL 1313998
Procedural entryThis page is a short order in Gb v. Jh. Read the opinion of the Court — 915 So. 2d 570
Court of Civil Appeals of Alabama·Decided June 3, 2005·No. 2040065·Published

Opinion

915 So.2d 570 (2005)

G.B.
v.
J.H.

No. 2040065.

Court of Civil Appeals of Alabama.

June 3, 2005.

*571 Philip G. Perkins of Law Offices of Stuart C. DuBose, P.C., Thomasville, for appellant.

Troy King, atty. gen., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.

PER CURIAM.

G.B. ("the father"), the father of K.B. ("the child"), a minor, appeals from a judgment entered by the Clarke Circuit Court determining his child-support obligation on the basis of imputed income. The father claims that the circuit court erred in imputing income of $500 per week to him. The father also claims that the circuit court erred in omitting a visitation agreement from the judgment. We affirm in part, reverse in part, and remand with instructions.

*572 In April 2003, the State of Alabama, acting on behalf of J.H. ("the mother"), the mother of the child, petitioned the Clarke Juvenile Court to order the father to pay child support. The father requested genetic testing to verify his paternity. The genetic testing indicated that the cumulative probability of his paternity was 99.99%. The mother filed a CS-41 income affidavit stating that her income was $600 per month. The father filed a CS-41 income affidavit stating that his income was $252.16 per month.

Following an ore tenus proceeding, the juvenile court completed a CS-42 form in which it imputed to the father income of $26,000 per year and calculated his child-support obligation under the Rule 32, Ala. R. Jud. Admin., guidelines at $319 per month. The juvenile court then entered a judgment establishing the father's paternity of the child, ordering the father to pay $319 per month in current child support, and ordering the father to pay retroactive child support in the amount of $3,828 at the rate of $50 per month.

The father timely appealed from the juvenile court's judgment to the Clarke Circuit Court (see Rule 28(B), Ala. R. Juv. P.) and, thereafter, moved the circuit court for visitation with the child. The mother filed a CS-41 income affidavit in the circuit court stating that her income was $600 per month. The father filed a CS-41 income affidavit in the circuit court stating that his income was $581 per month.

The circuit court set an evidentiary hearing for June 8, 2004. At the beginning of that hearing, this exchange occurred on the record:

"[Counsel for the father]: Your Honor, the parties have reached an agreement concerning visitation with the minor child ... and [the father]. And it's agreed that [the father] will have visitation with the [child] every other weekend beginning next weekend. Two two-week periods in the summer, to be agreed upon in advance by the parties, and every other spring break beginning 2005. Every other Thanksgiving from Wednesday at 5:00 to Friday at 5:00 beginning 2005. On [the] child's birthday, he will have time with the child on [her] birthday and Father's Day visitation ... each year. There will be permission for telephonic visitation. He will receive one week at Christmas from [December] 25 at 3:00 p.m. to January 1st at 3:00 p.m. on odd years. On even years, visitation from [December] 18 at 3:00 p.m. until [December] 25 at 3:00 p.m. He will have visitation at all times and places agreed upon in advance. And they will meet at the Econ in Grove Hill — Exxon, excuse me.
"THE COURT: Let me ask [the mother] ... did you understand the stipulation for visitation you have entered into with [the father]?
"[The mother]: Yes, I have.
"THE COURT: Is that, in fact, your agreement?
"[The mother]: Yes, it is.
"THE COURT: [to the father] [D]id you understand the stipulation?
"[The father]: Yes.
"THE COURT: And is that, in fact, the agreement?
"[The father]: Yes.
"THE COURT: Thank you. That will be established as the visitation schedule."

After the father had stipulated to his paternity of the child, the parties introduced evidence pertaining to the issue of the father's child-support obligation. The mother testified that she earned $600 per month working for the Clarke County Board of Education as a custodial worker. She testified that she and the father had *573 lived together for three years before they separated in July 2002. The mother's testimony in the record indicates that between 1999 and 2002, when the parties had lived together, the father had "worked consistently" and had had the means to leave her a "series of checks" that could be used to defray the costs of her needs, the needs of her two children, or household needs. The record also shows that the father had also purchased "every television" in the mother's home, purchased fans and an air conditioner for the mother's home, and paid for Internet service for the mother's home.

The 44-year-old father, who apparently has no significant health problems, testified that he had formed a corporation in 1995 and that, since then, he had earned his living by working as the sole employee of this corporation. He is also the sole shareholder of this corporation. He testified that, during the year 2003, he had paid himself $581 per month from the revenues of the corporation. When asked if he remembered having testified in the juvenile-court hearing that he made $500 per week after payment of his expenses, he responded in the negative.

Since he incorporated his business in 1995, the father has engaged in "bush hogging" (i.e., mowing),[1] landscaping, and trucking. The corporation still owns the tractor, "bush hog" mower, computer, large freight truck, and pick-up truck that the father used in his "bush-hogging" and landscaping business. However, since the father separated from the mother, he has primarily engaged in trucking and has not regularly performed "bush-hogging" or landscaping jobs. The corporation owes no debt on its tractor, "bush hog," pick-up truck, or the large freight truck the father uses in his trucking business.

The father lives with his parents and works out of their home, voluntarily paying them $75 per month toward utility expenses. He claimed monthly expenses of $125 for food and $50 for repayment of a department-store credit card. The father testified that although he had paid himself no more than $6,972 from the revenues of the corporation in 2003, the corporation nevertheless sustained a net loss of $1,714 that year. However, the father admitted that although he received all of his corporation's revenues and paid all of its expenses, he did not know how much the corporation had received in revenues or how much it paid in expenses. He testified that the corporation pays the charges on 6 to 10 credit cards issued to either the father or to the corporation, although he claimed that all of the charges on those cards were for expenses of the corporation.

On September 2, 2004, the circuit court entered a judgment. The judgment contained the following pertinent provisions:

"2. ... [The father's] income is hereby imputed at $500.00 per week.
"3. ... [The father] shall pay $319.00 per month current child support, effective June 8, 2004, as per Rule 32[, Ala. R. Jud. Admin.]
"4. ... [The father] is ORDERED to reimburse retroactive child support in the amount of $3,828.00 ... to be liquidated at the rate of $50.00 per month, effective June 8, 2004."

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Gb v. Jh, 915 So. 2d 570, 2005 Ala. Civ. App. LEXIS 304, 2005 WL 1313998 (Ala. Ct. App. 2005).

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