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02/10/95 B.R.L. v. STATE ALABAMA EX REL. K.H.S.

February 10, 1995


Appeal from Autauga Juvenile Court. (CS-92-172). Phillip W. Wood, TRIAL JUDGE.

Rehearing Overruled March 31, 1995, . As Amended. Certiorari Denied June 30, 1995.

Sam A. Beatty, Retired Justice. Thigpen, Yates, Monroe, and Crawley, JJ., concur. Robertson, P.j., Dissents.

The opinion of the court was delivered by: Beatty

BEATTY, Retired Justice

B.R.L. appeals from an adverse judgment in a paternity/child support action. The evidence was presented ore tenus.

Having reviewed the record and having considered the parties' arguments, we conclude that the judgment is due to be affirmed. The pertinent portions of the judgment are quoted here:

"This matter coming to be heard before this Court on the Petition filed by [K.H.S.] to establish the paternity of [J.R.S.], a minor child, to establish child support payable by the father, [B.R.L.]; to establish child support arrearage and a judgment for reasonable expenses associated with the pregnancy and confinement, along with other matters....

"Testimony and evidence were presented by two witnesses, namely, the Petitioner, [K.H.S.], and the Respondent, [B.R.L.]. Upon consideration of the ore tenus testimony given in response to direct and crossexamination, the questioning of the guardian ad litem, the demeanor and mannerisms of each witness and exhibits admitted into evidence, the Court finds the following with regard to facts in this case:

"[J.R.S.] was born as the result of the relationship of the petitioner, [K.H.S.], and the Respondent, [B.R.L.], as stipulated by the parties in July of 1993. [K.H.S.] found that she was pregnant in early January of 1992 and advised [B.R.L.] of her condition. At that time, [K.H.S.] was employed by Carraway Hospital in Birmingham, Alabama as a nurse and [B.R.L.] was practicing medicine at the same hospital. [K.H.S.] did not have any medical insurance coverage for the pregnancy. [K.H.S.] left employment at Carraway to accept employment at U.A.B. Hospital in Birmingham, where insurance was obtained by [K.H.S.] with no penalty for a pre-existing condition (i.e., the pregnancy). [K.H.S.] had a problematic pregnancy and was forced to restrict her working hours due to health considerations associated with the pregnancy. [K.H.S.]'s problem pregnancy resulted in her being bed-ridden for quite some time prior to delivery. [J.R.S.] was born on August 18, 1992. [K.H.S.] was not released by her doctor to return to work until October 21, 1992. Due to the pregnancy and confinement, [K.H.S.] incurred expenses associated with uninsured medical expenses, increase in insurance premiums, living expenses, loss of income and other expenses, including personal loans, associated with the pregnancy and confinement. Testimony by [K.H.S.] was that from early January 1992 through October 21, 1992, [B.R.L.] gave her a total of One Thousand Seven Hundred and No/100 ($1700.00) Dollars. [B.R.L.] testified that he believed he gave [K.H.S.] a total of $2500.00; however, [K.H.S.]'s testimony of $1700.00 may have been correct. Giving the Respondent the benefit of the doubt, he paid a total of $2500.00 to [K.H.S.] during her pregnancy and confinement. [K.H.S.] testified that she used part of the $1700.00 paid as partial payment to her doctor due to her being initially a private-pay patient. It is the opinion of the Court that [B.R.L.] has received credit for the amount he had paid associated with the pregnancy and confinement.

"The evidence established that from the date of [J.R.S.]'s birth, being August 18, 1992, until the Court entered the pendente lite order of July 8, 1993, [B.R.L.] paid nothing toward the support and maintenance of the child. The Court calculates that approximately 11 months passed without any support contribution by the Respondent. During these 11 months, [K.H.S.] and her family bore the total expense for the maintenance and support of the minor child. The Court is not impressed with the fact that only after order by this Court, did the Respondent contribute any monies toward the support and maintenance of the child.

"Testimony and evidence were taken as to the child's needs and standard of living as well as the ability of the parents to pay. The evidence established that prior to the birth of [J.R.S.], [K.H.S.]'s monthly living expenses were approximately $1600.00. The evidence further established that to provide the minor child with a middle-income life-style, the monthly living expenses will be approximately $5,678.50, of which $1600.00 is associated with the life-style of the Petitioner. The Court further finds that the Respondent is a medical doctor and dentist, earning approximately $396,000.00 per year. The Court was not impressed with the Respondent's testimony that his monthly living expenses for 1994 are $6441.00 per month and that his monthly living expenses for 1993, including paying all the expenses of his other child to attend Auburn University, were $5000.00 per month.

"The evidence showed that the Respondent had approximately $293,000.00 ($24,442.15 per month) actual spending cash, after taxes, in 1993 and that the Respondent testified he saved approximately $30,000.00 $40,000.00 ($3,333.33 per month) in 1993. Had the Court accepted the Respondent's testimony of $5000.00 per month of living expenses for 1993, after payment of monthly living expenses, monthly taxes and monthly savings, Respondent had $16,108.82 per month in discretionary monies in 1993. This calculation was agreed to by the Respondent and the Respondent admitted that the $16,108.82 discretionary monies had been spent monthly and he could not account for its expenditure. It was apparent from the testimony and evidence that the Respondent and his family (consisting of a wife and 19-year-old child) live a very lavish life-style. Vacations to Russia, Europe, Mexico, Colorado, Austria and other places had been enjoyed by the family in the past few years. Further, the Respondent owned a lavish residence in ... Birmingham, Alabama along with a farm in Chilton County, Alabama. The indebtedness on both of these properties was less than $150,000.00 and $91,000.00 of the indebtedness was established after these proceedings were filed. The farm in Chilton County, Alabama had been improved substantially with the inclusion of a large pond, barn, tractors and other improvements. The Respondent's 19-year-old daughter was a student at Auburn University, all her expenses were paid by the Respondent which included the cash purchase of a $17,000 - $18,000 automobile in late 1993. [B.R.L.] has no liens on his automobiles, business nor any personal loans or secured indebtedness other than the $150,000.00 on real property and debt for credit card purchases each month.

"The evidence further established that the minor child had been quite sick since his birth. These illnesses had interfered greatly with the Petitioner's employment. Petitioner is currently unemployed and was living with her parents, mostly at their expense, and raising the child. Respondent's wife had not been employed since 1984 though she did operate an antique business, which had produced no income in quite some time. The Court is of the opinion that the sole responsibility for rearing this child will lie with the Petitioner without any involvement by the Respondent. This opinion is based on the testimony of the Respondent himself. The Court is greatly troubled that this child will grow up without a father, due to the desires of the father himself. The Court is of the opinion that this child is entitled to the love and attention of both his parents; however, the Court is without authority to force the Respondent to have a relationship with his child. The Court recognizes the great responsibility that lies with the Petitioner and is of the opinion that this child is in need of all of the love, attention, contact, time and support the Petitioner can possibly offer.

"The Court was not impressed by [B.R.L.]'s lack of concern nor his desire to be uninvolved with the minor child. [B.R.L.]'s testimony was that the child was not considered a member of his family; the child was not welcome in his home; [B.R.L.] did not anticipate any visitation with the child; [B.R.L.] did not care nor want his name on the child's birth certificate and [B.R.L.] was not considering any involvement with the child or his development. [B.R.L.]'s testimony and demeanor led the Court to reach the Conclusion that [B.R.L.]'s involvement with the child would be no more than a monthly child support payment. As properly stated by the Petitioner, [K.H.S.] will be both father and mother to this minor child and will receive no assistance, help, encouragement or involvement from [B.R.L.] in ...

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