State Department of Human Resources ex rel. Daniel v. Daniel

RICHARD L. HOLMES, Retired Appellate Judge.

This is a child support modification case.

The State of Alabama, on behalf of the mother, filed a petition to modify child support based upon changed circumstances. After an ore tenus hearing, a modification of child support was ordered.

Thereafter, the State filed a timely post-judgment motion, alleging that the trial court’s order did not provide for an immediate income withholding order pursuant to Ala.Code 1975, § 30-3-61. The trial court denied this motion, and the State, on behalf of the mother, appeals this action.

The State correctly contends that when, such as we have in this case, an order of support is modified at the request of the Department of Human Resources and no party has demonstrated, nor has the trial court found, any good cause not to require immediate income withholding, the income withholding order must be served immediately upon the obligor’s employer and must take effect immediately.

Our supreme court in Ex parte State ex rel. Henson, 621 So.2d 991 (Ala.1993), specifically held that § 30-3-61(c) is mandatory where neither party has demonstrated that there is good cause not to require immediate income withholding and the trial court has made no finding with regard to whether there is good cause not to require immediate income withholding and where there is no written agreement providing for an alternative arrangement.

The facts of this case fall squarely within the parameters of Ex parte State ex rel. Henson, 621 So.2d 991.

The judgment of the trial court is reversed and remanded for further proceedings and/or a judgment not inconsistent with the above.

The foregoing opinion was prepared by Retired Appellate Judge RICHARD L. HOLMES while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the Judges concur.