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Randall v. Sizemore

Alabama Court of Civil Appeals

January 13, 2017

Darren Randall Cook
v.
Sheryl Lindenmuth Cook Sizemore

         Appeal from Geneva Circuit Court (DR-01-170.01)

          THOMPSON, Presiding Judge.

         This is the second time Darren Randall Cook ("the father") and Sheryl Lindenmuth Cook Sizemore ("the mother") have been before this court in this case. The father is seeking a reduction in his child-support obligation based on what he says is a significant decrease in his income. The first time the parties were before this court, the father was appealing from the trial court's judgment denying his petition to modify child support. Cook v. Sizemore, [Ms. 2150158, June 17, 2016] ___ So.3d ___, ___ (Ala. Civ. App. 2016). The trial court had previously stayed the father's child-support obligation, but in its final judgment, entered on October 6, 2015, the trial court reinstated that obligation retroactive to November 1, 2014. Id. at ___.

         In Cook, we agreed with the father that he had had an appreciable decrease in his income since his child-support obligation had originally been established such that there had been a material change in circumstances. Id. at . Nonetheless, we determined, the trial court had the discretion to deny the father's request for a modification if it had found that application of the child-support guidelines "would be manifestly unjust or inequitable" or if it had imputed income to the father. Id. at ___. After reviewing the record and examining the applicable caselaw, we concluded:

"If the trial court imputed income to the father, it was not required to have expressly stated that it was doing so. Instead, following established caselaw, this court would be required to presume that the trial court made the necessary findings to support its decision to impute income to the father, if such findings were supported by the record. However, the trial court also could have denied the father's petition to modify child support based upon a determination that a deviation from the guidelines was warranted under the facts of this case. In that case, the trial court would have been required to make written findings regarding its decision that 'application of the guidelines would be manifestly unjust or inequitable.' Rule 32(A)(ii)[, Ala. R. Jud. Admin.].
"The trial court's judgment as written provides us with no guidance as to whether it imputed as income to the father the amount of his former income, which would result in the same amount of child support as had been established in the divorce judgment, or whether the trial court determined that, because of certain facts or circumstances included in the record, the application of the guidelines would be manifestly unjust or inequitable in this case. Therefore, we cannot determine whether the trial court erred by failing to make a written finding setting forth its reasons for deviating from the Rule 32 child-support guidelines or whether we should examine the evidence to see if it could support a conclusion that the father was voluntarily underemployed and that his former income should be imputed to him. Accordingly, we reverse the judgment and remand the cause to the trial court for it to enter a judgment making clear whether it intended to impute income to the father or whether it believed the evidence presented warranted a deviation from the child-support guidelines, in which case it must make the written findings required by Rule 32(A)(ii) and Rule 32(A)(3)(e), Ala. R. Jud. Admin."

Cook, ___ So.3d at ___.

         On remand, the trial court entered a judgment dated July 5, 2016, stating: "This Court finds that Father is voluntarily underemployed and hereby imputes income to the Father at the amount of his former employment. Accordingly, the Father's Petition for Modification of Child Support is hereby denied." The trial court again reinstated the father's previous child-support obligation retroactive to November 1, 2014. The father appealed from the July 5, 2016, judgment.

In Cook, we set forth the following relevant facts:
"The record in this modification action indicates the following. The father and [the mother] were divorced by a judgment of the trial court entered on July 18, 2001. The parties' only child was three years old at that time. In the divorce judgment, which incorporated an agreement of the parties, the father was ordered to pay $923 a month in child support. The judgment explicitly stated that the child-support award had been determined pursuant to the guidelines set forth in Rule 32, Ala. R. Jud. Admin. At the time of the parties' divorce, the father's gross monthly income was $5, 833; the mother's gross monthly income was $1, 213.
"When the divorce judgment was entered, the father was employed as the manager for Ready Mix Concrete Company ('RMC'), earning an annual income of approximately $73, 000. At the hearing on his petition to modify, the father testified that RMC went out of business and that, thereafter, he began his own trucking business hauling cement for companies. After Hurricane Katrina struck the gulf coast in 2005, however, the trucking business declined, the father said. He testified that he was able to prevent his business from having to declare bankruptcy. The father said that he sold his trucking equipment to another man and then went to work for that man earning $50, 000 annually. The father testified that he worked for that business for about three years; however, the father said, that business had financial trouble and, eventually, he lost that job. The father testified that that occurred approximately seven years before the modification hearing, which would have been 2008.
"The father testified that he had managed up to 40 or 50 people in the concrete business. He also said that he had managed heavy equipment and had been required to do tasks like allocate fuel and other tasks. The father testified that, after he was laid off he 'made a few phone calls' to people in the cement-trucking industry in an attempt to obtain a new job. He said that there were not many businesses engaged in the industry and that it did not take him long to exhaust the job possibilities. Because of the economy, the father said, those businesses were not hiring and he was unable to find employment. By that time, the father had remarried, and, he said, his wife and his mother financially supported him for a time.
"At the September 28, 2015, modification hearing, the father testified that he was managing a liquor store in Mississippi, where he lived with his wife and their child. The liquor store is owned by a limited-liability company ('the LLC') of which the father's wife is the sole member. The father explained that the LLC had borrowed $300, 000 from his mother, but, he said, he did not have an ownership interest in the liquor store.
"The father testified that he began managing the liquor store before it opened in December 2012. At the time of the hearing, the father supervised the four other employees of the liquor store. Under cross-examination, the father acknowledged that, pursuant to Mississippi law, he cannot be a management employee because of his unspecified 'tax problems.' Therefore, instead of being a manager, the father said, he was a 'retail salesperson supervisor.' The father testified that, as the supervisor, he works 60 to 70 hours each week and that his wages from the liquor store were $21, 915 in 2013. He stated that his income from the store had not fluctuated since that time. A pay stub the father had produced during discovery that was ...

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