Opinion
2201042
06-17-2022
Charles Brandon ETHRIDGE v. HOUSTON COUNTY DEPARTMENT OF HUMAN RESOURCES, ON BEHALF OF Brandy K. ETHRIDGE
David K. Hogg of The Hogg Law Firm, Dothan, for appellant. Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Jennifer M. Bush, asst. att'y gen., Department of Human Resources, for appellee.
David K. Hogg of The Hogg Law Firm, Dothan, for appellant.
Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Jennifer M. Bush, asst. att'y gen., Department of Human Resources, for appellee.
EDWARDS, Judge.
Charles Brandon Ethridge ("the father") appeals from an order entered by the Houston Circuit Court ("the trial court") holding him in contempt of court for failing to pay to Brandy K. Ethridge ("the mother"), who is also known as Brandy K. Trusty, child support, and denying his counterclaim to modify his child-support obligation. We dismiss the appeal as having been taken from a nonfinal judgment.
The mother and the father were the subject of a divorce judgment previously entered by the trial court. They have two children, L.G.E., who was born on October 21, 2002, and H.B.E., who was born on August 31, 2007. Among other things, the divorce judgment awarded the mother custody of the parties’ children and ordered the father to pay child support. Thereafter, the mother initiated a proceeding regarding past-due child support. On January 23, 2020, the trial court entered an order, based on an agreement of the parties, modifying the father's child-support obligation to the mother and allowing him to resume visitation with the children. In pertinent part, the January 2020 order stated: "The [f]ather's child support payments are modified to $1,091.00 per month and in addition he owes child support arrearage of $8,379.00, which may be paid by an additional payment of $100.00 per month." The arrearage determined in the January 2020 order is hereinafter referred to as "the first arrearage."
The record does not include any pleadings filed or orders entered before the entry of the January 2020 order. It is unclear from the reference to the resumption of the father's visitation whether it had been suspended before or after the entry of the divorce judgment. Likewise, it is unclear what type of pleading or motion the mother filed that resulted in the January 2020 order; we presume that the mother's filing included a request for past-due child support based on the fact that the January 2020 order addressed that issue.
On March 17, 2020, an order to withhold the father's income was entered by the trial court against the father's employer, Dothan Commercial Doors, LLC ("DCD"), which is a business owned by the father and his family, including his mother, Glenda Ethridge, who is the bookkeeper for DCD. The income-withholding order required DCD to deduct from the father's pay $1,091 per month as current child support and $100 per month toward repayment of the first arrearage, for a total of $1,191 per month. The income-withholding order continued by stating that DCD did "not have to vary [its] pay cycle to be in compliance with the Order Information. If your pay cycle does not match the ordered payment cycle, withhold one of the following amounts ...." That statement was immediately followed by the following entries:
"$274.85 per weekly pay period";
"$595.50 per semimonthly pay period (twice a month)";
"$549.69 per biweekly pay period (every two weeks)"; and
"$1,191.00 per monthly pay period."
Based on Glenda's testimony, the father was paid by DCD every two weeks or 26 times per year. However, it does not appear that DCD ever withheld income from the father more than twice in any given month, which would result in withholding in only 24 pay periods per year. Some, but not all, of the purported new arrearage, discussed infra, was because that deviation in withholding resulted in payments in line with the biweekly payment calculation ($1,191 x 12 months = $14,292; $14,292 ÷ 26 = $549.69), but which should have been in line with the semimonthly payment calculation ($14,292 ÷ 24 = $595.50), assuming withholding would occur only twice per month, rather than for each biweekly pay period.
Pursuant to the Child Support Act, Ala. Code 1975, § 38-10-1 et seq., on December 9, 2020, the Houston County Department of Human Resources ("DHR") filed a petition in the trial court on behalf of the mother and against the father. See Ala. Code 1975, § 38-10-7. The petition sought a determination that the father was in contempt of the January 2020 order because he purportedly was in arrears as to his monthly child-support obligation of $1,091 -- the $100 payment toward the first arrearage was not referenced in the petition -- in the amount of $8,131.40 as of December 9, 2020, and also owed $539 in interest on that arrearage. The contempt petition requested that the father be required to show cause as to why he should not be held in contempt, that the trial court reduce the purported new arrearage, plus interest, to a judgment and order payments thereon, and that the trial court enter an income-withholding order.
The father filed in the contempt action an answer denying the allegations in the petition and alleging that he had paid all child support owed. He also alleged that the mother should be estopped from pursuing the contempt action because, he said, she had commenced "collection actions against [the father] in breach of [the] agreement incorporated by the Court which allowed [the father] to pay his child support arrearage in monthly installments." The father further alleged that DHR should likewise be estopped from pursuing the contempt action because, he said, DHR had purportedly participated in the mother's breach of the "repayment agreement." He further alleged that "[DHR] is in possession of the proceeds of said collections action and ha[d] not released the money to the [mother]." In addition, in his answer, the father asserted a counterclaim against the mother seeking a modification of his child-support obligation. According to the father:
"12. On January 23, 2020, [the trial court] entered an Order incorporating an agreement between the parties in which [the mother] agreed to allow [him] to pay [the first] arrearage in monthly installments of $100.
"13. [The father] began paying these monthly installments as agreed.
"14. [The mother] breached the agreement by commencing collection actions against [the father's] property, including the following:
"a. levying [his] tax-qualified retirement plan in an amount exceeding $8,000.00;
"b. intercepting [his] Coronavirus Stimulus payment; and
"c. intercepting [his] Alabama Income Tax refund.
"15. As a result of the ... breach of the Agreement, [the father] has suffered damages, including taxes and penalties on the early withdrawal from his retirement account.
"16. These additional and unexpected expenses have created a hardship on [the father] and have reduced his ability to pay his child support."
The father's counterclaim also included a request that the trial court terminate his child-support obligation as to L.G.E., whom the father alleged was 18 years old, living independently, and self-supporting.
On June 10, 2021, the trial court held a trial and received ore tenus evidence on the contempt petition and the father's counterclaim. At trial, DHR conceded that it had received "several involuntary lump sum payments ... over the year on this case, and the arrears balance [was] significantly less." According to DHR, "[t]he arrears balance was down to $600.19. And $181.22 ... [was] the interest that [had] accrued on the balance of arrears." It is unclear, however, how much, if any, of the claimed $600.19 related to the first arrearage, how much related to past-due child support from January 2020 through December 2020, when DHR commenced the contempt action, and how much, if any, related to past-due child support purportedly accruing after December 2020. Also, at trial, the father contended that DHR had received involuntary lump-sum payments in amounts sufficient to completely satisfy the first arrearage and that, based on the additional payments he had made, he did not owe $600.19 in past-due child support for obligations accruing after the entry of the January 2020 order.
On August 9, 2021, the trial court entered an order finding the father in contempt of court for his failure to pay child support pursuant to the January 2020 order "in which he was ordered to pay child support of $1,091.00 per month and an additional payment of $100.00 per month toward the child support arrearage." After discussing some of the evidence presented regarding the father's purported arrearage and child-support-payments, the August 2021 order stated:
"While the Court is not at all persuaded by [the father's] arguments against a finding of contempt, the court does note that the amount of the arrearage has been greatly reduced. Therefore, while [the father] is found to be in contempt, the Court will allow [him] the opportunity to purge himself of contempt by continuing to make payments as previously ordered until such time as the arrearage and interest on same are fully paid."
The August 2021 order then denied the father's counterclaim and denied any relief not otherwise addressed in the order. The father timely filed a motion seeking reconsideration of the August 2021 order, which the trial court denied. The father timely filed a notice of appeal to this court.
We pretermit discussion of the merits of the issues raised by the father based on a jurisdictional issue arising from his argument about a deficiency in the August 2021 order, namely the lack of a determination of the purported new arrearage amount, an argument to which DHR has not responded.
"It is a settled jurisprudential principle that an appellate court must initially consider whether it has jurisdiction to hear and decide an appeal: ‘[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Nunn v. Baker, 518 So. 2d 711, 712 (Ala. 1987). Under Ala. Code 1975, § 12-22-2, an appeal will lie to the appropriate appellate court, within the time and in the manner prescribed by the Alabama Rules of Appellate Procedure, from any final judgment of a circuit court."
Alabama Dep't of Revenue v. WestPoint Home, LLC, 256 So. 3d 1197, 1199 (Ala. Civ. App. 2018).
"[A] final judgment [is] ‘a terminative decision by a court of competent jurisdiction which demonstrates there has been a complete adjudication of all matters in controversy between the litigants within the cognizance of that Court. That is, it must be conclusive and certain in itself.’ Jewell v. Jackson & Whitsitt Cotton Co., 331 So. 2d 623, 625 (Ala. 1976). ... ‘All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own.’ Jewell, 331 So. 2d at 625."
Ford Motor Co. v. Tunnell, 641 So. 2d 1238, 1240 (Ala. 1994). As this court has stated, "a final judgment must include the amount of the award rather than simply indicating that a party is ‘ "entitled to recover." ’ " Alabama Dep't of Revenue v. W.A. Akins & Sons, Inc., 365 So. 3d 338, 341 (Ala. Civ. App. 2022) (quoting WestPoint Home, 256 So. 3d at 1200 ); see also Jewell v. Jackson & Whitsitt Cotton Co., 331 So. 2d 623, 625 (Ala. 1976) ("A judgment for damages to be final must, therefore, be for a sum certain determinable without resort to extraneous facts.").
The August 2021 order fails to state the amount of the purported new arrearage owed by the father or what interest he might owe on that arrearage, as requested in the contempt petition. Although the August 2021 order essentially affirms that the existing income-withholding order and payment obligations will remain in effect, the father has no way of knowing when he will have satisfied his payment obligations and DHR does not know how much arrearage or interest the mother is owed. We also note that the August 2021 order appears to be ambiguous because it fails to indicate the source of the purported new arrearage, namely, whether the arrearage was solely for past-due child-support obligations accruing after the entry of the January 2020 order or included some portion of the first arrearage discussed in that order that might have remained unpaid. Likewise, there is no indication of what interest might be owed on the purported new arrearage. In any event, we are compelled to conclude that the August 2021 order is not a final judgment that will support an appeal. See Tunnell and Jewell, supra ; see also Ala. Code 1975, § 30-3-62(d) (stating that, when an income-withholding order has been requested, "[a]n order entered pursuant to this section shall recite the amount required to be withheld as continuing support for each month, the total amount of all accumulated arrearages, if any, and the amount required to be withheld for each month in order to satisfy the arrearage").
Based on the foregoing, this appeal is dismissed as having been taken from a nonfinal judgment.
APPEAL DISMISSED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.