from Tuscaloosa Circuit Court (DR-04-1064.02)
THOMPSON, PRESIDING JUDGE
Gregory Wicker ("the father") appeals from a
judgment that the Tuscaloosa Circuit Court ("the trial
court") entered denying his petition for a modification
of his child-support obligation and for the termination of an
income- withholding order ("IWO"). The petition was
based on his assertion that he had paid his child-support
obligation in full.
record indicates the following. The parties have two children
("the children"). According to the parties'
divorce judgment entered in March 2005, the parties were
awarded joint custody of the children, and no child support
was ordered at that time. On November 26, 2008, the trial
court entered a judgment ("the 2008 modification
judgment") modifying the custody arrangement and
awarding Jennifer Wicker Hallman ("the mother")
sole physical custody of the children, subject to the
father's visitation. The trial court also ordered the
father to pay child support of $900 each month. On January 8,
2009, the mother filed an affidavit of arrearage, claiming
that, between December 3, 2008, and January 4, 2009, the
father had not paid his entire child-support obligation and
that an arrearage of $1, 430.76 was due. Also on January 8,
2009, an IWO was issued pursuant to which a total of $1, 100
was collected from the father each month--$900 for his
child-support obligation and $200 to pay toward his
arrearage. It is undisputed that the mother received the full
$1, 100 each month.
record shows that the full $1, 100 was still being withheld
from the father's income in 2016. In March 2016, the
father requested that the IWO be terminated. However, he
withdrew that request, and on April 27, 2016, he filed a
petition to modify child support. On June 27, 2016, the IWO
was suspended pending the final hearing in this matter.
affidavit dated October 6, 2016, which the father submitted
to the trial court, the father testified that he had not
received notice of the mother's affidavit of arrearage
and had not seen the IWO issued on January 8, 2009. He also
said that he did not notice that too much was being deducted
from his paycheck for his child-support obligation until his
attorney notified him of that fact at the end of 2015. On
November 9, 2016, the father filed a motion for a summary
judgment. The father claimed that he had never been in
arrears, and he sought the termination of the IWO and the
modification of child support. He calculated that he had
overpaid his child-support obligation by at least $16, 800
from January 2009 to March 2016. The mother opposed the
father's motion for a summary judgment, asserting that,
each month, the father had voluntarily paid more than the
amount of child support he was required to pay.
November 21, 2016, the trial court heard arguments on the
father's motion for a summary judgment. At the hearing,
the father argued that, if he had known of the mother's
contention that he was in arrears, he would have opposed it.
He then went on to argue that he was entitled to a credit for
the amount of child support he had overpaid. The trial court
never ruled on the motion for a summary judgment and
scheduled a hearing on the merits.
December 19, 2016, a final hearing at which the trial court
received evidence ore tenus was held on the father's
motion to modify child support. At that hearing, the father
testified that, in March 2016, after one of the children had
reached the age of majority, he consulted his attorney to
have his child-support obligation modified. He said that
during that consultation was when he first became aware that
he was paying more child support than the court had ordered
in the 2008 modification judgment. The father said that he
had not paid the additional $200 a month willingly. Under
cross-examination, the father testified that he was aware
that $1, 100 was being withheld from his paycheck each month
from January 2009 through the date he filed his petition for
child-support modification. However, the father said, he did
not know he was overpaying his child-support obligation.
However, still under cross-examination, the father testified
that he knew that, in the 2008 modification judgment, the
trial court had ordered him to pay $900 a month in child
support. He also reiterated that, since January 2009, he knew
that $1, 100 was being collected from his paycheck each month
and that that was $200 a month more than he had been ordered
to pay. Still, the father said, he did not know it was an
overpayment. He said that he "thought the State was
taking out what it was supposed to take out."
December 27, 2016, the trial court entered a judgment
modifying the father's child-support obligation to $836
each month. The child support was for the one child who was
still a minor. The trial court also denied the father's
request for a credit against his current child-support
obligation for the amount he had overpaid from 2009 through
April 2016, when the modification petition was filed. The
trial court also ordered the father to pay the arrearage that
had accrued since the IWO was suspended in June 2016. That
arrearage totaled $3, 871.33 as of the date the judgment was
entered. The father timely appealed from the trial
standard of review applicable for this appeal is well
"'When a trial court hears ore tenus evidence, its
judgment based on facts found from that evidence will not be
disturbed on appeal unless the judgment is not supported by
the evidence and is plainly and palpably wrong. Thrasher
v. Wilburn, 574 So.2d 839, 841 (Ala. Civ. App. 1990).
Further, matters of child support are within the sound
discretion of the trial court and will not be disturbed
absent evidence of an abuse of discretion or evidence that
the judgment is plainly and palpably wrong. Id.'
"Spencer v. Spencer, 812 So.2d 1284, 1286 (Ala.
Civ. App. 2001). However, the trial court's application
of law to facts is reviewed de novo. See Ladden v.
Ladden, 49 So.3d 702, 712 (Ala. Civ. App. 2010)."
Jones v. Jones, 101 So.3d 798, 802 (Ala. Civ. App.
2012). Furthermore, "[t]he ore tenus rule is
grounded upon the principle that when the trial court hears
oral testimony it has an opportunity to evaluate the demeanor
and credibility of witnesses." Hall v. Mazzone,
486 So.2d 408, 410 (Ala. 1986). The rule applies to disputed
issues of fact, whether the dispute is based entirely upon
oral testimony or upon a combination of oral testimony and
documentary evidence. Born v. Clark, 662 So.2d 669,
672 (Ala. 1995).
case, the father contends that the trial court abused its
discretion when it refused to give him credit against future
child-support payments for the amount of child support he had
overpaid. This appears to be a case of first impression in
Alabama. In her arguments to the trial court, the mother
cited authority from other jurisdictions to support her
position that the father had voluntarily overpaid the amount
of child ...