Chunn v. Chunn

Citations: 183 So. 3d 985; 2015 Ala. Civ. App. LEXIS 132; 2015 WL 3648189Docket: 2140252

Court: Court of Civil Appeals of Alabama; June 12, 2015; Alabama; State Appellate Court

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Oscar David Chunn, Jr. and Mary Katherine Chunn were divorced on March 8, 2010, with the Shelby Circuit Court ordering the father to pay $250 monthly in child support while unemployed, with future modifications contingent on new employment. On October 18, 2010, this obligation was increased to $675 monthly following an agreement. The father petitioned for modification on September 6, 2013, citing a job loss in July 2013, which was assigned case number DR-10-0063.02. The mother responded, denying the request, and filed her own petition for recalculation of child support and contributions to children's expenses, assigned case number DR-10-0063.03. Additionally, on October 21, 2013, the mother sought to hold the father in contempt for unpaid support.

The trial court consolidated these actions into case number DR-10-0063.04, dismissing the previous cases without prejudice. After a hearing, on September 16, 2014, the court denied both parties' modification requests, ruled the father in contempt for non-payment, determined his child-support arrears, mandated payments towards children's orthodontic expenses, and awarded attorney fees to the mother. The father filed a postjudgment motion, which was denied, and subsequently appealed, arguing the trial court improperly found him voluntarily unemployed or underemployed. The trial court had previously calculated his gross monthly income at $4,500, suggesting a support obligation of $718, but did not adjust his payments accordingly, instead concluding that the parties did not meet their burdens of proof for modification.

The father contends that the trial court erred by not modifying his child-support obligation. To succeed in modifying child support, the parent must prove a "material change in circumstances that is substantial and continuing" as outlined in Rule 32(A)(3)(b), Ala. R. Jud. Admin. The court will not modify a support agreement based on prior judgments without clear justification and careful consideration. The children's needs are paramount in such determinations, alongside the parents' financial capabilities. Modification decisions are at the trial court's discretion, which can only be overturned upon a showing of abuse of that discretion.

The record shows that from 2007 to 2010, the father earned approximately $70,000 annually in the banking sector, then about $60,000 at a subsequent bank, followed by a job at 'Alabama Small Business Capital' with an income of approximately $90,000 until he lost that position in July 2013. He graduated from Birmingham School of Law and was licensed as an attorney by September 2014, representing himself at the trial level but having counsel for the appeal.

Since his job loss, the father claims to have applied for around 100 positions and interviewed for four, although most evidence of his job search occurred after he filed for modification. He acknowledged that he hadn't kept complete records of his earlier job applications. Under questioning, he admitted to various out-of-town trips for interviews but often could not recall specific details. He denied a trip to the beach in August 2013 but mentioned a job interview in Pensacola. He believed he stayed there for three to five days and noted he had asked their daughter to care for his dogs during a trip in September 2013, suggesting his wife accompanied him.

The father initially had difficulty recalling a December 2013 trip to Pensacola, Florida, despite having confirmed the trip during his deposition, where he noted he could not remember his companions or the duration. He later stated the trip was job-related and funded by his wife. In November 2013, he and his wife visited her family in Chicago for Thanksgiving. The couple also took a trip to the Bahamas after being offered the opportunity by the wife's friends, but the father could not remember the friends' names or details about their stay, only stating they spent about $50 during the trip and did not dine out.

In September 2013, coinciding with his request for a child support modification, the father began paying the mother $250 monthly, which he calculated using his unemployment compensation of $1,060 per month, not accounting for additional income from officiating youth football games, which earned him about $100 weekly. He acknowledged that calculating child support at minimum wage would result in an estimated income of $1,247 monthly. 

The father provided evidence of child support payments, including canceled checks and partial credit-union account statements confirming the checks cleared. However, he did not present records from March to September 2014. His available statements showed he received full salary in July 2013 and half salary in August, alongside unemployment benefits of $265 weekly until January 2014. He made deposits into his accounts consistently, except for January 2014, and transferred funds between accounts during that period.

Monthly deposits into the father's credit-union accounts, excluding unemployment benefits, averaged about $4,150 from August 2013 to March 2014, and rose to approximately $5,000 when including unemployment benefits. The mother challenged the father regarding the sources of these deposits, to which he speculated that his wife made them for bill payments but could not confirm this. He acknowledged that his wife has access to the accounts and deposits her business income there, despite previously stating during a deposition that her income was not deposited. The father admitted to spending more on concert tickets in March 2013 than on child support payments. Although he denied attending three concerts later in 2014, he failed to provide account statements for verification. The father claimed an inability to pay the $657 monthly child support as ordered, but the trial court, having received oral testimony, is afforded a presumption of correctness in its judgment. The court's ability to assess witness credibility allows it to reject testimony, even if the father was the sole witness regarding his employment search efforts. Consequently, the trial court's findings are presumed accurate, with the review limited to whether those findings were clearly erroneous, as supported by relevant case law. The mother disputed the father's claims of financial inability to pay child support.

The father has had substantial monthly deposits into his credit-union accounts, yet he could not confirm that his wife made these deposits. The trial court inferred that the father likely had some source of income supporting these deposits. Although the father claimed in his appeal that his wife financially supported him and that he used savings for expenses, he did not provide definitive testimony regarding the source of the deposits. The record shows that transfers were made between his savings and checking accounts, casting doubt on the credibility of his claim that he did not monitor these accounts closely. 

The father's account statements revealed a near $5,000 decline in savings from September 2013 to March 2014, during which he failed to pay for his children's health insurance and made only $1,750 in child support—less than half of the savings reduction. Despite this, he traveled during this period, asserting that some trips were job-related, although he lacked details. He also admitted prioritizing concert ticket purchases over child support payments, raising further credibility concerns. 

The father's untouched retirement account during this time contrasts with the mother, who had to cash in her retirement savings for family expenses. While the trial court cannot ignore clear evidence of a parent's inability to pay child support, it found the father's inability to be disputed. The court could deny his petition to modify child support based on the father's failure to meet the evidentiary burden for modification and questioned the credibility of his claims. The court retains discretion to determine the truthfulness of witness testimony and disregard false statements on material issues.

The court upheld the trial court's decision regarding the father's child-support obligation, noting it cannot reweigh the ore tenus evidence presented. Both parties on appeal accepted that the trial court had imputed income to the father, who was assumed to be voluntarily unemployed. Under Rule 32 of the Alabama Rules of Judicial Administration, a trial court may impute income to a parent if they are found to be voluntarily unemployed or underemployed, estimating the income based on the parent's work history, education, and local job market conditions. Although the trial court did not explicitly state that the father was voluntarily unemployed, such a conclusion can be inferred from its judgment that imputed income to him despite his unemployment. Previous cases support the notion that implicit findings can be enough to establish voluntary unemployment or underemployment. However, there is some ambiguity regarding whether the trial court actually imputed income to the father, as the CS-42 form indicated a calculation based on a monthly gross income of $4,500 without modifying the child-support obligation accordingly. This figure aligns with the total monthly deposits into the father’s credit-union accounts, suggesting it may reflect an income source under the guidelines.

The trial court's determination implied that the father was voluntarily unemployed, leading to the imputation of income to him. On appeal, the father did not address the specific amount of income imputed or argue for a reduction; instead, he contested the imputation itself. He cited Tatum v. Carrell, in which the court reversed an imputation of income due to the father's demonstrated good-faith job search over three years. The father claimed a similar situation, stating he had been seeking work since his termination in July 2013. However, unlike in Tatum, the mother disputed the father's job search diligence and qualifications. The court noted that a single witness's testimony does not negate the application of the ore tenus rule regarding credibility assessments. Evidence indicated reasonable doubt about the father’s credibility, with evasive responses during questioning. The appellate court affirmed that, based on credible evidence, the trial court's imputation of income was justified. Additionally, the father challenged the trial court's contempt ruling for non-payment of child support, but the court did not specify whether the contempt was criminal or civil, only stating that the father was in contempt for failing to comply with the support order.

A willful failure to pay child support is typically treated as civil contempt, with the trial court having discretion in such determinations. A parent can defend against civil contempt by demonstrating an inability to pay, shifting the burden to the recipient parent to prove financial capability beyond a reasonable doubt. If the obligated parent shows true inability to pay, the contempt order must be lifted. In this case, the father argued he was unable to pay due to unemployment; however, evidence indicated he was either voluntarily unemployed or had a source of income, as funds were deposited into his accounts during the relevant period. Additionally, he received income from both a current and former employer, yet he unilaterally reduced his child support payments from $657 to $250 while still incurring personal expenses of $4,000 to $5,000 monthly and spending more on concert tickets than on child support. His retirement account showed no withdrawals during this time, suggesting he had financial means to meet his obligations. The trial court's finding of contempt was supported by the evidence, and the father did not prove an abuse of discretion. Furthermore, regarding orthodontic expenses, although the divorce judgment required shared costs, the mother testified she had not informed the father of the expenses, which would leave her responsible for the full amount.

The father claims he is not contractually obligated to pay certain expenses for his children, specifically orthodontic costs, and challenges the trial court's decision to find him in contempt for non-payment. Citing legal precedent, the court agrees that the trial court erred in requiring reimbursement for these expenses and in the contempt ruling. Consequently, the relevant portion of the September 14, 2014 judgment is reversed. 

Additionally, the father contests the order to pay part of the mother's attorney fees. Alabama law allows a court to award attorney fees in divorce actions involving contempt findings. Although it is unclear if the trial court's fee award was based on contempt, the ruling is upheld due to the established contempt for child support non-payment. The mother provided evidence supporting her attorney fee claim, including testimony about the extensive work involved in the case. The father did not challenge the fee amount, resulting in waiver of that argument.

The judgment is affirmed in part and reversed in part, with the case remanded. After discovery, the father began paying $261 monthly in child support, having adjusted his calculations based on the mother's income. He did not contest the specific income attributed to him by the trial court but expressed concerns about the court's imputing income to him. The father applied for jobs out of state, although he is only qualified to practice law in Alabama.