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Chunn v. Chunn

Alabama Court of Civil Appeals

June 12, 2015

Oscar David Chunn, Jr.
v.
Mary Katherine Chunn

Page 986

          Appeal from Shelby Circuit Court. (DR-10-0063.04).

         THOMPSON, Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ., concur.

          OPINION

Page 987

          THOMPSON, Presiding Judge.

         Oscar David Chunn, Jr. (" the father" ), and Mary Katherine Chunn (" the mother" ) were divorced by a March 8, 2010, judgment of the Shelby Circuit Court (" the trial court" ). The divorce judgment incorporated an agreement reached by the parties. At the time the divorce judgment was entered, the father was unemployed.

Page 988

The divorce judgment provided, among other things, that the father pay $250 per month in child support until he found new employment, at which time the child-support obligation would be modified. On October 18, 2010, the trial court entered a new judgment that incorporated an agreement of the parties in which it modified the father's child-support obligation to $675 per month.

         On September 6, 2013, the father filed a petition seeking a modification of his child-support obligation in which he alleged a " substantial and continuing" material change in circumstances; the father stated in that petition that he had lost his job in July 2013. The father's modification action was assigned case number DR-10-0063.02. On October 11, 2013, the mother answered and denied that the father was entitled to a reduction in child support. Also on that date, the mother filed a petition seeking a recalculation of child support and an order requiring, among other things, that the father contribute to the payment of certain expenses for the children. The mother's modification action was assigned case number DR-10-0063.03. On October 21, 2013, the mother initiated an action seeking to have the father held in contempt for his failure to pay child support as ordered in the October 18, 2010, modification judgment. The trial court, ex mero motu, consolidated all the pending actions and claims into one action to which it assigned case number DR-10-0063.04, and it dismissed without prejudice case numbers DR-10-0063.02 and DR-10-0063.03.

         The trial court conducted an ore tenus hearing. On September 16, 2014, the trial court entered a judgment in which it denied both parties' claims for a modification of child support, determined that the father was in contempt for failure to pay child support, and determined the father's child-support arrearage. In addition, the trial court ordered the father to pay amounts toward the children's orthodontic expenses, and it ordered the father to pay the mother's attorney an attorney fee. The father filed a postjudgment motion, and the trial court denied that motion. The father timely appealed.

         The father first argues that the trial court erred in finding him voluntarily unemployed or underemployed; he contends that such a finding is not supported by the evidence. The Rule 32, Ala. R. Jud. Admin., child-support guidelines require that, in any action involving a claim for child support or a modification of child support, the parties shall submit certain forms to the trial court and that those forms " shall be of record and shall be deemed to be incorporated by reference in the court's child-support order." Rule 32(E), Ala. R. Jud. Admin.; see also T.C.S. v. D.O., 156 So.3d 418, 420 (Ala.Civ.App. 2014) (discussing the requirement that the child-support forms be submitted by the parties and incorporated into the trial court's judgment); and Farnell v. Farnell, 3 So.3d 203, 205-06 (Ala.Civ.App. 2008) (same). The CS-42 child-support form completed by the trial court and contained in the record indicates that the trial court determined the father's gross monthly income to be $4,500 per month and that his child-support obligation, calculated pursuant to the child-support guidelines, should be $718 per month. However, the trial court did not modify the father's child-support obligation to reflect that calculation. Rather, in its September 16, 2014, judgment, the trial court denied the parties' claims seeking a modification of child support.[1] It appears that, in reaching that ruling, the trial court determined that the parties had not meet their burdens of

Page 989

proof. The father has also raised as an issue in his appellate brief an argument that the trial court erred in failing to modify his child-support obligation. We reach that issue first.

          In order to prevail on a claim seeking a modification of child support, the parent seeking the modification has the burden of demonstrating " a material change in circumstances that is substantial and continuing." Rule 32(A)(3)(b), Ala. R. Jud. Admin.; Romano v. Romano, 703 So.2d 374, 375 (Ala.Civ.App. 1997); and Griggs v. Griggs, 638 So.2d 916 (Ala.Civ.App. 1994). " Further, when[, as here,] the judgment establishing the support obligation 'is based on an agreement between the parties, the decree should not be modified except for clear and sufficient reasons and after thorough consideration and investigation.'" Pendegraph v. Pendegraph, 628 So.2d 849, 850 (Ala.Civ.App. 1993) (quoting Tucker v. Tucker, 588 So.2d 495, 497 (Ala.Civ.App. 1991)) (emphasis added). The needs of the children are the primary concern in determining a claim seeking a modification of child support, taking into account the ability of the parents to pay. Simmons v. Simmons, 600 So.2d 305, 305 (Ala.Civ.App. 1992). Also, child-support modification is an issue within the discretion of the trial court, and the trial court's judgment will be reversed only upon a showing of an abuse of that discretion. Pendegraph v. Pendegraph, 628 So.2d at 850; Love v. Love, 623 So.2d 315, 317 (Ala.Civ.App. 1993).

         The record indicates that between 2007 and 2010 the father was employed in the banking industry earning approximately $70,000 per year. He then worked at another bank, earning approximately $60,000 annually. The father left that job to work at a business called " Alabama Small Business Capital," earning approximately $90,000 a year; he lost that job in July 2013 after that business failed.

         The father also graduated from Birmingham School of Law; the date of his graduation is unclear, but appears to be sometime in 2012. The father was licensed as an attorney at the time of the September 9, 2014, hearing in this matter, and he represented himself below; the father is represented by counsel on appeal.

         The father testified that since he lost his job in July 2013 he had applied for approximately 100 positions and that he had interviewed for 4 of those positions. The father submitted into evidence documents indicating that he had applied for approximately 40 employment positions. On questioning from the mother, the father admitted that most of the documentary evidence of his employment search indicated that he had applied for jobs after he filed his claim seeking a modification of his child-support obligation and that most of the documents indicated job applications that the father had made in 2014, well after he lost his job in July 2013. The father stated that he had been searching for employment since shortly before he lost his job and that he had not retained documentary evidence of all of his applications, especially the earlier ones.

         The father initially testified that he had had four job interviews. On questioning from the mother, however, he stated that he had traveled out of town for " numerous" job interviews.

         The mother questioned the father about trips out of town that he has taken since losing his job in July 2013. The father testified that he did not know how many times he had been out of town. In response to questioning by the mother on the issue of his out-of-town trips or other expenses, the father often responded by stating that he did not recall the events or details of the occasions that were the subject

Page 990

of the question. The father denied making a beach trip in August 2013, but he stated that he went to Pensacola, Florida, at that time for a job interview. The father stated that he " would think" that he was in Pensacola for three to five days on that trip. The father testified that he believed he traveled for a job interview in September 2013, but he stated that he could not recall where he went on the September 2013 trip or who accompanied him on the trip. The father admitted that he had asked the parties' daughter to take care of his dogs in September 2013, and he admitted that he would have done so only if his current wife (" the wife" ) accompanied him on his trip. The father initially testified that he could not recall taking a December 2013 trip to Pensacola, Florida, and the mother pointed out that, in his deposition testimony, he had stated that he had made that trip but that he could not recall who went with him or how long he was gone. At the hearing in this matter, the father stated that he believed the December 2013 trip was for a job interview and that his wife had paid for the trip.

         The father and his wife traveled to Chicago at Thanksgiving 2013 to visit the wife's family. The father testified that, in the fall of 2013, some of his wife's friends canceled a planned trip to the Bahamas and that the father and his wife were able to go in place of the friends with the airfare and hotel paid for by the friends. When asked who went with the father and his wife on that trip to the Bahamas, the father testified that he had no idea of the wife's friends' names and that he did not recall where the parties stayed during that Bahamas trip. When asked what the parties did on that trip, the father stated only " just things in general." The father testified that he and his wife did not eat out while they were on that trip, and he estimated that they spent approximately $50 while in the Bahamas.

         In September 2013, at approximately the same time he filed his claim seeking the modification of his child-support obligation, the father unilaterally began paying the mother $250 per month in child support.[2] The father testified that he based his decision to reduce the amount he paid in child support upon a calculation he performed under the Rule 32 child-support guidelines. The father explained that, in making that calculation, he used as his gross income the $1,060 per month he received in unemployment-compensation benefits. The father later testified that, in using that figure in performing his own calculation of child support, he had imputed to himself income only at a minimum-wage level; imputation of income at the current minimum wage would actually result in an income of $1,247 per month.[3] The father also testified that, in the fall of 2013, he officiated at youth-football games and was paid approximately $100 per week; he did not include that income in his calculation in determining the amount of child support he elected to pay after September 2013.

         The father submitted into evidence an exhibit containing copies of the canceled checks for the child support he paid ...


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