Kelly v. Kelly , 624 So. 2d 601 ( 1993 )

624 So. 2d 601 (1993)

Marjorie Lynn KELLY, a/k/a M. Lynn MacKenzie
v.
Lamar C. KELLY, Jr.

2910698.

Court of Civil Appeals of Alabama.

March 19, 1993. Rehearing Denied April 23, 1993.

Marion F. Walker, Birmingham, for appellant.

Stephen R. Arnold of Durward & Arnold, Birmingham, for appellee.

ROBERTSON, Presiding Judge.

This is the second time this child support modification case has been before this court. In Kelly v. Kelly, 599 So. 2d 49 (Ala.Civ.App. 1992), this court held that the portion of the trial court's judgment as to child support was due to be reversed because of the trial court's failure to apply the guidelines or to make a finding that the application of the guidelines would be manifestly unjust or inequitable. On remand, the trial court's order provided:

"2. The court is satisfied from the evidence that the application of the Child Support Guidelines, Rule 32 A.R.J.A., would be manifestly unjust or inequitable. Therefore, the court exercises its discretion and deviates from the said child support guidelines. The court's award of child support is calculated not by applying the guidelines, but rather based on the actual needs of the child, proven by the [mother] during the trial of the cause. The court further finds the father has a corresponding ability to respond to that need. Therefore, the child support ordered to be paid by the [father] to the [mother] for the support and maintenance of the minor child of the parties be and it hereby is increased to $650 per month effective December 1, 1990."

The mother contends in this appeal that the trial court again abused its discretion in failing to apply the Child Support Guidelines and argues that the record does not support a finding that the application of the guidelines would be manifestly unjust or inequitable.

The decision in matters of child support rests within the sound discretion of the trial court and will not be altered on appeal except where that discretion was abused. East v. East, 569 So. 2d 409 (Ala.Civ.App. 1990). Also, this court is not permitted to substitute its judgment for that of the trial court. Justice v. Justice, 460 So. 2d 1330 (Ala.Civ.App.1984).

After a careful review of the record and considering the totality of the judgment, we cannot hold that the trial court committed an abuse of discretion by finding that the application of the Child Support Guidelines would be manifestly unjust or inequitable. The judgment of the trial court is affirmed.

The mother's request for an attorney's fee on appeal is denied.

AFFIRMED.

THIGPEN, J., concurs in result.

YATES, J., dissents.

YATES, Judge, dissenting.

I respectfully dissent. This case was previously remanded to the trial court for that court to "enter an order consistent with the application of the guidelines or to enter written findings on the record as to why such application would be unjust or inappropriate." Kelly v. Kelly, 599 So. 2d 49, 51 (Ala. Civ.App.1992). The trial court subsequently made a finding that application of the guidelines would be manifestly unjust or inequitable, stating that it was deviating from the guidelines, that it calculated the award of child support "based on the actual needs of the child," not by applying the guidelines, and that the father had the "ability to respond to that need."

The comments to Rule 32 state that "[t]he guidelines will provide an adequate standard [of] support for children, subject to the ability of their parents to pay, and will make awards more equitable by ensuring more consistent treatment of persons in similar circumstances." In my opinion, this indicates that the guidelines provide a basic standard of need for the child.

The trial court stated that the deviation was based on the "actual needs of the child," rather than on a finding that the husband did not have the ability to pay according to the guidelines. (I note that the mother was allowed to testify only as to the amounts expended for the child and not as to the items of food or clothing that she could not afford to purchase for the child.) However, the "adequate standard [of] support" for the child has been determined and included in the guidelines. Therefore, I would hold that the trial court's finding does not rebut the presumption that the amount of the award resulting from the application of the guidelines is the correct amount of child support. See Rule 32(A)(ii).