State Department of Human Resources v. B.A.S. ( 1992 )

RUSSELL, Judge

(dissenting).

I respectfully dissent and would find that the trial court erred by not considering the child support guidelines, Rule 32, Alabama Rules of Judicial Administration, an orderly and mandatory mechanism for properly considering resources as they apply to child support.

Although here the trial court found that the mother and the father did not have sufficient income to provide child support, such is not the test of § 12 — 15—71(i), Ala. Code 1975. Pursuant to § 12 — 15—71(i), “when the parents or guardians have resources for child support, the juvenile court shall order child support in conformity with the child support guidelines.... ” (Emphasis supplied.) The section does not require sufficient resources, only resources. The yearly earnings of the mother were anticipated to be approximately $15,600 per year. Clearly, the mother has “resources for child support”; therefore, the trial court is required to apply Rule 32.

However, I would point out that the trial court has options in considering the application of Rule 32. Rule 32(A) provides that there is a rebuttable presumption that the correct amount of child support would result from the application of the child support guidelines. The presumption may be rebutted by a written finding on the record that the application of the guidelines would be unjust or inappropriate when the parties have entered into a fair, written agreement establishing a different amount of support and stating the reasons therefor or when “[u]pon a finding of fact, based upon evidence presented to the court, the court determines the application of the guidelines would be manifestly unjust or inequitable.”

In the present case the trial court made no reference to Rule 32, did not set an amount according to the guidelines, and did not find that the application of the guidelines would be unjust or inequitable. Because the mother has resources, I would hold that this is error and would reverse the judgment as to child support and remand the cause for the trial court to apply the guidelines, or to make a written finding of fact based on the evidence that the application of the guidelines would be unjust or inequitable. Thistlethwaite v. Thistlethwaite, 590 So.2d 317 (Ala.Civ.App.1991).