J.L. v. A.Y.

844 So. 2d 1221
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 6, 2002
Docket2010105
StatusPublished
Cited by15 cases

This text of 844 So. 2d 1221 (J.L. v. A.Y.) 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
J.L. v. A.Y., 844 So. 2d 1221 (Ala. Ct. App. 2002).

Opinion

PITTMAN, Judge.

In June 1999, J.L. (“the father”) filed a petition seeking a judgment declaring that he is the natural father of C.Y. (“the child”). He requested that the juvenile court grant him visitation and order him to pay child support. The juvenile court ordered blood tests; those tests confirmed that J.L. was the father of the child. In July 2001, the juvenile court issued a judgment declaring J.L. to be the child’s father, granted visitation, and set child-support payments at $871 a month and assessed an arrearage of $7,034.

The father appeals, contending that the juvenile court erred when it failed to hold a hearing on his Rule 59, Ala. R. Civ. P., postjudgment motion. In his post-judgment motion the father argued that the juvenile court erred both in its calculation of current child support due and in its calculation of the total amount of arrear-age due. The father contends that his Rule 59 motion was set for a hearing, continued twice, and ultimately denied without a hearing. The mother insists that a hearing was held; however, there is no indication in the record that a hearing took place.

Rule 59(g), Ala. R. Civ. P., provides that motions under Rule 59 “shall not be ruled upon until the parties have had opportunity to be heard thereon.” Thus, if a party requests a hearing on a Rule 59 motion, it is error not to hold such a hearing. See Staarup v. Staarup, 537 So.2d 56 (Ala.Civ.App.1988). Nevertheless, our supreme court, in Kitchens v. Maye, 623 So.2d 1082 (Ala.1993), held that although a trial court errs in not granting a hearing on a motion pursuant to Rule 59, Ala. R. Civ. P., such an error does not necessarily constitute reversible error under Rule 45, Ala. R.App. P., which provides, in pertinent part:

“No judgment may be reversed or set aside ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Our supreme court in Kitchens, supra, stated that harmless error occurs in the context of a violation of Rule 59(g), “ ‘where there is either no probable merit in the grounds asserted in the motion, or [1224]*1224where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’ ” Kitchens, 623 So.2d at 1088-89, quoting Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989).

A review of the record in this case reveals that no prejudicial error occurred. The father argued in his Rule 59 motion that the trial court erred in its child-support determination; however, there is no merit to this assertion because the trial court’s calculations were based on the guidelines. Therefore, we conclude that the failure to conduct a hearing on the father’s motion was not prejudicial error.

The father also argues on appeal that the juvenile court erred (1) by failing to comply with Rule 32, Ala. R. Jud. Admin., (2) by imputing income to him while he was a full-time student, (3) by allocating nonwork-related day-care expenses in its calculations, and (4) by failing to give him credit for child-support payments he made during the pendency of this action.

We note that both parties submitted the proper forms and affidavits, and the trial court attached to its judgment three child-support-guideline forms: the first form covered the period from September 11, 1998 (i.e., the date of the child’s birth), through December 31, 1998; the second form covered the period from January 1, 1999, through December 31, 1999; and the third form covered the period from October 2000 through May 2001. This last form is the only form needed to review the trial court’s computation of current child support owed.

However, the form that would cover the period from January 2000 through September 2000 is missing from the record; if this were simply a calculation of current continuing child support instead of retroactive child support, the father’s argument might justify a reversal. Under this court’s holding in Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998), we do not need to review Rule 32(E) forms to uphold a trial court’s calculation of a child-support arrearage. That opinion stated: “In future cases, when awarding retroactive support, the trial court should state its reasons for the award, the factors it considered, and the manner in which it calculated the retroactive support award.” Brown, 719 So.2d at 232. This court has previously held that “ ‘[a] trial court’s determination of the amount of a child support arrearage ... is largely a discretionary matter, and the trial court’s ruling in that regard will not be reversed on appeal absent an abuse of discretion.’ ” Kuhn v. Kuhn, 706 So.2d 1275, 1278 (Ala.Civ.App.1997), quoting Vlahos v. Ware, 690 So.2d 407, 410 (Ala.Civ.App.1997).

Here it appears that the trial court simply used the child-support-guidelines forms to gather income information from the parties to assist it in determining a retroactive child-support amount. If this had been a traditional calculation of ar-rearage, we would simply look at the court’s last child-support order and multiply that by the number of months the father had not paid child support. Here we see that the current continuing child-support order calls for $371 in monthly payments. If we were to multiply that number by the number of months since the child’s birth (32), the total amount of child support owed would be $11,872. Because we conclude that the trial court gave the father credit for some child-support payments made during the pendency of the litigation, we conclude that the trial court did not abuse its discretion in determining that the amount of the arrearage was $7,034.

Next, the father argues that the trial court failed to comply with Rule 32, Ala. R. [1225]*1225Jud. Admin., because the child-support-guidelines forms included in the record are not signed. To comply with Rule 32(E), each party to a divorce must file a CS-41 (Child Support Obligation Income Statement/Affidavit form) with the trial court. Often a CS-42 (Child Support Guidelines form) is filed by one or both parties for the trial court’s consideration. Occasionally, under Rule 32(A)(2), the trial court accepts a Child Support Guidelines Notice of Compliance form, which allows the court tó adopt a stipulation from the parties regarding the amount of child support to be paid. Usually, the trial court completes a CS-42 by filling in each party’s income and by computing the monthly child-support amount due.

In Martin v. Martin, 637 So.2d 901 (Ala.Civ.App.1994), this court construed Rule 32 to be mandatory; we stated that stipulated cases “are the only exceptions to the requirement of filing a child support guidelines form and income affidavit forms.” Martin, 637 So.2d at 902. Moreover, this court stated that: “the filing of the forms is mandatory even if the trial court found that application of the guidelines would be unjust or inequitable.” Martin, 637 So.2d at 903.

Martin does not address what constitutes compliance with Rule 32, other than to require the filing of the forms by the parties and the trial court. The first mention of a signature requirement occurs in State ex rel. Dunnavant v. Dunnavant, 668 So.2d 851 (Ala.Civ.App.1995).

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