from Geneva Circuit Court (DR-01-170.01)
THOMPSON, Presiding Judge.
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 ___.
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 ___.
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,
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 ...