Moore v. Moore

575 So. 2d 95, 1990 WL 177718

• Court: Court of Civil Appeals of Alabama
• Decided: November 14, 1990
• Docket: Civ. 7761
• Status: Published

Opinions

This case involves modification of child support pursuant to existing case law and Rule 32, Alabama Rules of Judicial Administration.

The parties were divorced in 1978, two child support modifications followed, and a third support modification petition was filed in February 1990. After ore tenus proceedings, the trial court found there had not been a sufficient change in circumstances shown and refused to modify the child support.

Barbara A. Moore (mother) appeals on the sole issue of whether the trial court erred in failing to fix child support in accordance with the child support guidelines.

The mother argues that the main question is whether the trial court was obligated to follow the child support guidelines regardless of a showing of changed circumstances.

Rule 32(A)(2)(i), A.R.J.A. provides:

"The 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."

There appears to be no dispute on appeal that the mother failed to make a showing of a material change of circumstances that is substantial and continuing. Consequently, the trial court never reached the point of applying the child support guidelines. Having not reached that point, it was not incumbent upon the trial court to find, in its judgment, that the application of the guidelines would be manifestly unjust or inequitable. Therefore, we find no error.

Wendell R. Moore (father) requests that he be awarded an attorney's fee based on a frivolous appeal. We decline to award such a fee because the guidelines are new and subject to different interpretations. The mother also requests an attorney's fee in this appeal, which is also denied.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

INGRAM, P.J., concurs.

RUSSELL, J., dissents.