Opinion
2180190
02-07-2020
Mark J. YOUNG v. Tracy H. YOUNG
Benjamin W. Maxymuk and John A. Henig, Jr., of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant. Stephanie M. Pollard of Beverlye Brady & Associates, Auburn, for appellee.
Benjamin W. Maxymuk and John A. Henig, Jr., of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant.
Stephanie M. Pollard of Beverlye Brady & Associates, Auburn, for appellee.
On Application for Rehearing
DONALDSON, Judge. This court's no-opinion order of affirmance issued on August 23, 2019, is withdrawn, and the following opinion is substituted therefor.
Mark J. Young ("the father") appeals from a judgment of the Lee Circuit Court ("the trial court") in a postdivorce action involving child support. Although the judgment reduced the father's child-support obligation from $4,000 per month to $2,840 per month, the father contends that the trial court should have reduced it more than $1,160. We affirm.
Factual Background and Procedural History
The father and Tracy H. Young ("the mother") were divorced in April 2015 by a judgment that incorporated the parties' written settlement agreement ("the agreement"). The agreement provided that the parties would have joint legal and physical custody of their three children and, with respect to child support, provided, in pertinent part:
"[The father] shall pay the total sum of $4,000.00 per month as child support to [the mother] to be used for the support and maintenance of the minor children of the parties. Child support shall be reduced by one-third (1/3) as each child reaches the age of majority, enrolls in college, and/or becomes self-supporting. Said amount of child support is not in compliance with the Child Support Guidelines as established by the Supreme Court of Alabama as the parties' combined gross income exceeds the Guidelines and as the parties have agreed to a shared physical custody arrangement."
In June 2017, the mother commenced the present action by filing a petition seeking (1) a judgment holding the father in contempt based on the mother's allegation that the father had not paid child support since October 2016, (2) a money judgment against the father for the child-support arrearage that the mother alleged had accrued plus interest thereon, and (3) an award of attorneys' fees. The father answered the mother's petition and counterclaimed for a judgment terminating or reducing his child-support obligation. Thereafter, the mother answered the father's counterclaim, and, in July 2018, the trial court held a one-day bench trial at which it received evidence ore tenus. In August 2018, the trial court entered a judgment ("the postdivorce judgment") that determined that the father owed the mother a child-support arrearage in the amount of $36,000, ordered him to pay the arrearage at the rate of $2,000 per month, denied the mother's contempt claim, ordered the father to pay the mother $5,416 for attorneys' fees she had incurred in prosecuting the action, reduced the father's child-support obligation from $4,000 per month to $2,840, and explained the trial court's rationale for determining that the father's monthly child-support obligation should be $2,840:
"These two parties agreed at the time of their divorce to certain provisions of property settlement, alimony, custody, visitation, child support and other compromises as part of an integrated bargain. In that agreement which was made the Order of this Court, the father agreed to pay $4,000 in child support per month to the mother. In this case, the
parties clearly contemplated many issues that are expressly set out in the agreement and likely others not set out in the agreement, including their perceived likelihood of receiving a more or less desirable outcome in court.
"Except for a period of time in which the parties were contemplating the possibility of reconciling, the father has consistently paid his child support. He now requests that his child support be terminated or reduced. The mother contended that the father should be bound to his original agreement and be held in contempt for the payments he has missed.
"While two parties to an agreement must consider future risks at the time of contract and bind themselves to that agreement even if their circumstances change in the future, the Court is not aware of any principle that would support allowing parties to so bind their children or prohibit a modification of child support in otherwise appropriate circumstances and when the best interests of the children require it. In fact, our courts have ‘consistently held that a child support order is always subject to modification based on a change of circumstances and a change in a parent's ability to pay.’ Lo Porto v. Lo Porto, 717 So. 2d 418 (Ala. Civ. App. 1998). Furthermore an order that prohibits modification is unenforceable. Cole v. Cole, 540 So. 2d 73 (Ala. Civ. App. 1989). However, when the modifying or not-modifying of an agreement is not likely to affect a child of the parties to the agreement, the policy of upholding parties' agreements should be considered.
"In this case, there is evidence of a substantial change in the non-paying spouse's ability to contribute, but little evidence of change in the children's needs. However, the cases that note the need to meet both of these prongs to justify modifying child support are –– to this Court's knowledge –– cases where the courts were analyzing the effects of the payor's change in income, not the payee's change in income. In those cases, the courts basically held that a payor's change in ability to pay, without a change in need by the child, would not necessitate a change in child support, especially where the parents' income exceeded the guidelines.
"The only substantial and continuing change[s] in this case [are] the mother's salary and commissions from her new job, the father's increase in pay, and the $1,000 per month gain by the father and loss by the mother as a result of the automatic alimony reduction.[ ] Here the concern is not whether the children should receive more or less support, as much as who should bear the burdens of that support. As such, this matter really does take on the nature of a dispute that materially affects the parents, not the children. The children's needs remain substantially the same and their support should as well, the only question is how will that support burden be distributed.
"The parties' prior agreement clearly contemplated that the mother's income would increase as the spousal support decreased. Because the child support deviated from the guidelines and was beyond the guidelines' contemplated income amounts, the parties could have agreed to a gradual reduction in child support as they did for the alimony. However they didn't. It appears that the
The agreement provided that the father would pay the mother periodic alimony in the amount of $4,000 per month for 36 months and that, after that initial 36-month period, he would pay her $3,000 per month for an additional 36 months, whereupon his obligation to pay her periodic alimony would cease.
parties contemplated the mother's income increasing to the point that after 6 years she would no longer need spousal support to maintain the financial lifestyle she held when she was married. However even under such a circumstance there was no provision for a reduction of child support.
"It does appear that one issue contemplated in assigning the child support amount may have been that the mother could watch the children instead of the father having to pay someone else to do it during his custodial weeks. Due to the mother's new employment, she is not as available as she once was. However this issue was remedied by the hiring of a nanny until the children reached their current ages which require less supervision.
"In determining child-support, the father alleges that the pass-through ‘taxable income’ from the mother's family's [registered limited-liability partnership (‘the RLLP’)] should be attributed to the mother as actual income. The pass-through income for tax purposes is a result of the way the Family RLLP was set up, and so is the fact that [the mother] does not have any authority to demand or control disbursements or the assets owned by the RLLP. This was acknowledged at the original divorce when the parties didn't include the RLLP tax income as actual income. The Court does not find that ‘taxable income’ which is merely ‘pass through’ income attributed to a RLLP member for tax purposes but not income actually delivered to the member or in their control, is income for purposes of child support calculation.
"The parties' original agreement was that the father would pay $4,000 per month in child support to the mother. At the time, the father was making 100% of the family income. The Court finds that, when adjusted for the change in the parties' current cash flow, he should now pay 71% of his original support amount, which remains above the scope of the State's child-support guidelines."
$4,000 x .71 = $2,840.
The father timely filed a postjudgment motion asserting (1) that, because the mother had filed neither a CS-41 form nor her income-tax return for 2017, the trial court should amend the postdivorce judgment to state the amount of the mother's income the trial court had used to calculate the father's child-support obligation; (2) that the trial court had not considered all the mother's income from every source in calculating the father's child-support obligation, which, according to the father, was required by Alabama law; (3) that, even if it was proper to disregard the mother's income from sources other than her employment in calculating the father's child-support obligation, the trial court's calculation of the father's child-support obligation was nonetheless erroneous because, the father said, the mother's employment income alone constituted more than 29% of the parties' combined adjusted monthly gross income and, therefore, the trial court should not have required the father to pay 71% of the children's child support; (4) that the postdivorce judgment did not provide for a one-third reduction of the father's child-support obligation as each child reached the age of majority, as required by the agreement; and (5) that the trial court had awarded the mother attorneys' fees in the absence of sufficient evidence to support such an award. Following a hearing, the trial court entered an order (1) granting the father's postjudgment motion insofar as it challenged the provision of the postdivorce judgment awarding the mother attorneys' fees and (2) denying the father's postjudgment motion insofar as it challenged the provision of the postdivorce judgment setting his child-support obligation at $2,840 per month. The order also explained the trial court's rationale for the latter ruling:
"The bulk of this particular matter was an issue of whether to modify a prior child support agreement that was for income that was higher than the guidelines contemplate. Although this Court believes it had the discretion not to change the support provisions at all, and that doing so would have been reasonable, the Court found that the reduction laid out in the [postdivorce judgment] was equitable under the circumstances[,] which included a large increase in income for the mother. The testimony provided to the Court directly was more than sufficient to analyze child support, but this has always been an ‘above the guidelines’ case and the Court treated it as such.
"The most contentious issue may have been whether to include the mother's family's [registered limited-liability partnership (‘RLLP’)] as income for considering child support. The Court certainly did consider the RLLP, its assets, and profits, but didn't find that they should be attributable to the mother due, in part, to her lack of control. Under different circumstances, such as those in the Wright v. Wright, 19 So. 3d 901 (Ala. Civ. App. 2009),] case cited by both parties, the Court could have attributed those to the mother, but this Court did not find that equitable in this circumstance, especially when the parties had knowledge of the RLLP when they entered their agreement. The Court did consider all of both parties' actual and attributed income in evidence when drawing its conclusion.
"While the Court did find that the ordered modification was the most equitable resolution[, t]he father did not have a right to have his child support modified. In fact, the mother's counsel makes a very good argument that the most equitable option would have been to have left the [divorce judgment] as the parties originally agreed. Given that the father did not have a right to a child support reduction, but merely a plea in equity, the Court does not find that retroactive modification is required, especially given his unilateral reduction prior to his filing."
After the entry of the order addressing the father's postjudgment motion, the father timely appealed.
Analysis
The father argues that the trial court committed reversible error in setting his child-support obligation at $2,840 per month because, he says, the trial court failed to consider all the mother's income in calculating that he should pay that amount. Specifically, he argues that it was error for the trial court to exclude from that calculation the mother's income from her family's registered limited-liability partnership ("the RLLP"), her income from her participation in her employer's stock-purchase plan, the value she received as a result of the health-savings plan provided by her employer, her income from interest and dividends, and the appreciation in value of her investments. In addition, he argues that the trial court's calculation erroneously failed to include all the mother's employment income; according to the father, if the trial court had included all the mother's employment income, his share of the parties' combined adjusted gross income would have been less than the 71% the trial court allegedly assigned to his share. The premise underlying all the father's arguments is that the trial court was required to calculate the father's child-support obligation in the manner specified by Rule 32(C)(2), Ala. R. Jud. Admin., for parents whose combined adjusted gross income falls within the Rule 32, Ala. R. Jud. Admin., schedule. Rule 32(C)(2) does not apply in the present case, however, because the undisputed evidence established that the parties' combined adjusted gross income exceeded the uppermost level of the Rule 32 schedule. In pertinent part, Rule 32(C)(1), Ala. R. Jud. Admin., provides: "The court may use its discretion in determining child support in circumstances where combined adjusted gross income ... exceeds the uppermost levels of the schedule." This court has held:
"When the combined adjusted gross income exceeds the uppermost limit of the child support schedule, the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and must reasonably relate to the obligor's ability to pay for those needs. [ Anonymous v. Anonymous, 617 So. 2d 694, 697 (Ala. Civ. App. 1993).] To avoid a finding of an abuse of discretion on appeal, a trial court's judgment of child support must satisfy both prongs."
Dyas v. Dyas, 683 So. 2d 971, 973-74 (Ala. Civ. App. 1995) (footnote omitted). In affirming that holding, our supreme court stated:
"The amount of child support is within the discretion of the trial court, after it has considered both the reasonable and necessary needs of the children and the ability of Dr. Dyas[, i.e., the obligor,] to pay for those needs. The trial court is to set the child support payments at an appropriate amount, considering both of those factors."
Ex parte Dyas, 683 So. 2d 974, 977 (Ala. 1996).
In the present case, in determining whether to modify the father's child-support obligation and, if so, by how much, there were two factors the trial court was absolutely required to consider: (1) the reasonable and necessary needs of the children, taking into account the lifestyle to which the children were accustomed and the standard of living the children had enjoyed before the divorce, and (2) the father's ability to pay. Ex parte Dyas. The trial court was free to consider other factors in exercising its discretion so long as it considered those two. In the postdivorce judgment, the trial court stated that it had considered the needs of the children and that it had found that "[t]he children's needs remain substantially the same and [that] their support should as well ...." The trial court also stated that it had considered all the parties' income in determining whether to modify the amount of the father's child-support obligation, although it had determined that income of the RLLP, a pass-through entity, attributed to the mother but not actually paid to her should not be used as a basis for reducing the father's child-support obligation. Because the mother and the father's combined adjusted gross income exceeded the uppermost level of the Rule 32 schedule, Alabama law did not require the trial court to consider the mother's income in determining whether to modify the father's child-support obligation, and it did not require the trial court to calculate the father's child-support obligation in the manner required by Rule 32(C)(2) for parents whose combined adjusted gross income falls within the Rule 32 schedule. See Ex parte Dyas. Therefore, we cannot hold that the trial court exceeded its discretion in basing the reduction of the father's child-support obligation on less than all the mother's income as advocated by the father.
Regarding the first factor the trial court was required to consider, the father does not contend on appeal that the trial court committed any error with respect to its consideration of the needs of the children in establishing the amount of child support. Regarding the second factor, although the father argues that his share of the financial support for the children should be less than $2,840 per month, he does not argue that he does not have the financial ability to pay $2,840 per month; therefore, we conclude that $2,840 per month reasonably relates to the father's ability to pay. See Call v. Call, 135 So. 3d 254, 261 (Ala. Civ. App. 2013). In Call, a case in which the parties' combined adjusted gross income exceeded the uppermost level of the Rule 32 schedule, this court stated:
"Although the husband argues that the award of child support in the amount of $5,000 per month constitutes an award of a ‘disproportionate’ amount of his income, he does not argue that he is financially unable to pay $5,000 per month in child support. Therefore, we conclude that the award of child support in the amount of $5,000 a month reasonably relates to the husband's ability to pay. See Wright v. Wright, 19 So. 3d 901 (Ala. Civ. App. 2009) ]."
135 So. 3d at 261. Accordingly, because the father has not established that the trial court committed reversible error with respect to the two factors the trial court was required to consider in setting his child-support obligation, we conclude that the postdivorce judgment is due to be affirmed.
In his application for rehearing, the father argues that his appeal raises "a question of first impression in this State with regard to the standard for including income for purposes of calculating ... child support, where that income derives from a party's minority participation in a partnership or other similar entity." He is referring to the portion of the income earned by the RLLP that was attributed to the mother but not paid to her. We have concluded that, under the circumstances of this particular case and current law, the trial court was not required to consider any of the mother's income in calculating the father's child-support obligation. Therefore, even if the issue presents a "question of first impression," addressing and answering that question in the manner the father desires would not establish a ground to reverse the judgment. See Ex parte Connors, 855 So. 2d 486, 488 (Ala. 2003) ("[T]he judiciary of Alabama is not empowered ‘ "to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases." ’ " (quoting Stamps v. Jefferson Cty. Bd. of Educ., 642 So. 2d 941, 944 (Ala. 1994), quoting in turn Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So. 2d 661, 662 (1963) )).
Conclusion
For the reasons discussed above, the trial court's postdivorce judgment is affirmed. The mother's request for an award of attorneys' fees on appeal is denied.
APPLICATION GRANTED; NO–OPINION ORDER OF AFFIRMANCE OF AUGUST 23, 2019, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
Thompson, P.J., concurs.
Moore, J., concurs in the result, with writing.
Hanson, J., concurs in the result, without writing.
Edwards, J., recuses herself.
MOORE, Judge, concurring in the result. I agree that the judgment of the Lee Circuit Court ("the trial court") should be affirmed, but I do not agree with all the statements of law set forth in the main opinion.
Mark J. Young ("the father") asserts that the trial court erred in reducing his child-support obligation from $4,000 per month to $2,840 per month. The father asserts that the trial court erred in failing to consider all the income earned or received by Tracy H. Young ("the mother") when calculating the reduction in his child-support obligation. The main opinion concludes that the trial court did not commit any error to the extent it excluded income of the mother when modifying the father's child-support obligation, stating that, "[b]ecause the mother and the father's combined adjusted gross income exceeded the uppermost level of the Rule 32 [, Ala. R. Jud. Admin.,] schedule, Alabama law did not require the trial court to consider the mother's income in determining whether to modify the father's child-support obligation," ––– So. 3d at ––––, and that, "under the circumstances of this particular case and current law, the trial court was not required to consider any of the mother's income in calculating the father's child-support obligation." ––– So. 3d at ––––, I do not agree that the main opinion accurately states the law on this point.
At one time, Alabama law, following the common law, placed the responsibility for child support solely on the father. See Mattingly v. Cummings, 392 So. 2d 531 (Ala. 1980). Eventually, Alabama law provided that a divorced mother with means to do so should be required to contribute to the support of her children when the father is unable to completely support the child. Williamson v. Williamson, 391 So. 2d 115 (Ala. Civ. App. 1980). In Mathews v. Mathews, 428 So. 2d 51 (Ala. Civ. App. 1982), and Jenkins v. Jenkins, 418 So. 2d 137 (Ala. Civ. App. 1982), this court clarified that the duty of a divorced mother to contribute to the financial support of her children does not arise only when the father is shown to be incapable of fully supporting the children but exists in every case in which the mother has the means to contribute to the financial support of the children. Alabama law is now clear to the point that a child has a fundamental right to support from both parents. See Hawkins v. Cantrell, 963 So. 2d 103, 105-06 (Ala. Civ. App. 2007) ; Maker v. Maker, 487 So. 2d 948, 950 (Ala. Civ. App. 1986) ("After all, the needs of a child and the ability of either or both parents to provide for those needs are the two general polestars in an award for the support, maintenance, and education of a minor child."). Under current Alabama law, a divorced mother has a responsibility to financially support the children of the marriage equal to that of a divorced father. See Blasdel v. Blasdel, 27 So. 3d 1288, 1290 n.9 (Ala. Civ. App. 2009).
In Williamson, this court held that, in a child-support-modification action, a trial court shall consider the income and resources of the mother as well as the father in determining the amount of child support necessary to meet the needs of the children of a divorce. This court stated:
"The attorneys agree that the mother should assist in supporting the two children. We concur and reaffirm that principle of law as stated in Thomason v. Thomason, 53 Ala. App. 206, 298 So. 2d 627 (1974) as follows:
" ‘However, if the evidence in a case indicates such primary responsibility is incapable of being performed, we know of no law, antiquated or otherwise, which prevents requirement of support or contribution thereto by the
mother if she is shown capable of providing it.’
"See also Ledyard v. Ledyard, 46 Ala. App. 27, 237 So. 2d 511 (1970). Divorced parents owe a duty to reasonably support their children according to the needs of the children and consistent with the means of the parents. In the present case, as well as in almost every case where the ex-wife is employed and has primary custody of children, it appears that the mother has contributed considerably towards the support of the children corresponding to her ability to do so. We have observed from support cases appealed to this court that, where both divorced parents have incomes, it is now rare when the support required from the divorced father closely approaches meeting the total monetary needs of the child. Undoubtedly this has evolved and has been occasioned by the equal protection provision as well as the self-emancipation of the female from the home to the job and the present ability and necessity of the respective parents to now each contribute to the support of their children.
"The needs of the children and the means of the parents determine whether a modification of child support on the basis of changed conditions should be granted. The trial court has a discretion to exercise in child support modification cases, and its judgment will not be disturbed on appeal unless the evidence shows it to be plainly and palpably wrong. Childress v. Childress, Ala. Civ. App., 378 So. 2d 1147 (1979) ; Murphree v. Murphree, Ala. Civ. App., 366 So. 2d 1132 (1979)."
391 So. 2d at 117-18 (emphasis added). See also Stubbs v. Puls, 429 So. 2d 1071, 1072 (Ala. Civ. App. 1983) ("The needs of the daughter and the means of the parents to provide for her support are among the matters to be considered by the trial court in determining the amount of child support."). Based on Williamson, this court held in Taylor v. Taylor, 408 So. 2d 117, 119 (Ala. Civ. App. 1981), that, "[w]hen both husband and wife have incomes, the wife's income may be taken into account in determining the adequacy of a child support award."
In 1987, our supreme court adopted the child-support guidelines set out in Rule 32 of the Alabama Rules of Judicial Administration. DeMo v. DeMo, 679 So. 2d 265, 266 (Ala. Civ. App. 1996). The child-support guidelines generally require consideration of both parties' incomes when computing child support in either an initial action or a modification action. See Rule 32(A), Ala. R. Jud. Admin. Pursuant to Rule 32(C)(1), Ala. R. Jud. Admin., "[t]he court may use its discretion in determining child support in circumstances where combined adjusted gross income is below the lowermost levels or exceeds the uppermost levels of the schedule." In exercising the discretion to modify child support in cases not governed by Rule 32, the discretion of the trial court is controlled by the same factors governing modification of child support as applied before the advent of the child-support guidelines, i.e., "the needs of the child and the parents' ability to pay," Arnold v. Arnold, 977 So. 2d 501, 507 (Ala. Civ. App. 2007) (emphasis added), which depends, in part, on the income and resources of the custodial parent as well as the obligor parent. See Grimsley v. Grimsley, 887 So. 2d 910 (Ala. Civ. App. 2004) (when income of parties exceeded uppermost level of guidelines, trial court did not err in reducing child-support obligation of father based on substantial increase in income of mother and corresponding increase in her ability to meet needs of children); Derie v. Derie, 689 So. 2d 142, 144 (Ala. Civ. App. 1996) (when guidelines did not apply due to high income of parties, trial court was not limited to information on child-support forms in determining income of each party for purposes of modifying child support).
The main opinion primarily relies on Ex parte Dyas, 683 So. 2d 974, 977 (Ala. 1996), for the proposition that a trial court is required to consider only the children's needs and the obligor's ability to pay when deciding whether to modify child support. In Ex parte Dyas, the supreme court said that, when determining whether to modify child support, " ‘[t]he trial Judge can consider the earning ability of both parties [and] their probable future prospects for earnings ....’ " 683 So. 2d at 976 (quoting Ex parte Jackson, 567 So. 2d 867, 868 (Ala. 1990) ) (emphasis added). Although the supreme court used permissive language, nothing in the opinion suggests that a trial court is free to disregard the earning ability of the obligee parent when determining the needs of the children and the ability of the parents to meet those needs in order to determine the appropriate amount of child support to be awarded. That reading would eviscerate the duty of the obligee parent to support the children and would be inconsistent with the caselaw cited above, which has never been overruled.
In this case, the trial court correctly determined that the issue was not whether the obligation of the father to pay child support should be reduced as a result of a change in the needs of the children or his ability to meet those needs, which was not even contested, but whether the child-support obligation of the father should be reduced on the ground that the mother, whose income had allegedly materially increased since the original child-support determination, should bear a portion of that support. Grimsley v. Grimsley, 887 So. 2d at 914 ("The trial court apparently concluded, quite reasonably, that both parties were more than able to provide for the financial needs of the children and that the parties were contesting merely the division of those costs."). Under Alabama law, the mother's increase in income is a factor that could warrant a reduction in the child-support obligation of the father. See id. Consequently, I disagree with the main opinion insofar as it concludes that the trial court was limited solely to consideration of the children's needs and the ability of the father, the obligor parent, to pay when deciding whether to modify the father's child-support obligation. Under the circumstances of this case, the trial court was required to consider any changes in the income of the mother in deciding whether, and by how much, to reduce the father's child-support obligation.
On appeal, the father argues that the trial court erred in failing to consider all the new sources of income for the mother since the time of the original child-support determination, but in its judgment the trial court clarified that, in making its child-support determination, it had considered all sources of income of the mother, except for income she received from her family's registered limited-liability partnership ("the RLLP"). The trial court explained that it had excluded the income from the RLLP because the managing member of the RLLP, the mother's father, had sole discretion over any disbursements from the RLLP, which, with the exception of annual $5,000 payments to the mother, were not made regularly. The trial court reasoned that any sporadic disbursements from the RLLP to the mother cited by the father were not "substantial and continuing" income that would warrant a change in child support. See Browning v. Browning, 626 So. 2d 649 (Ala. Civ. App. 1993).
The father contends that the trial court erred in excluding the income from the RLLP essentially because, he says, the mother could expect to receive that income regularly despite her lack of direct control over the disbursements. In Goetsch v. Goetsch, 66 So. 3d 788 (Ala. Civ. App. 2011), this court held that the trial court in that case could consider the assets of a trust as a resource for the beneficiary when determining issues of postminority educational support even though the trustee had total control over the distribution of the trust assets. The father argues that, by analogy, the trial court should have considered the mother's 49.5% share of the RLLP as a resource for her despite her lack of any managerial control over the RLLP. However, in Wright v. Wright, 19 So. 3d 901 (Ala. Civ. App. 2009), an even more analogous case, this court indicated that, when a party owns only a minority interest in a "subchapter S" corporation with no control over distributions, any retained earnings from the corporation should not be considered in determining child support. Although in the present case the father argues mightily that the mother can depend on regular distributions from the RLLP despite her lack of control over that business entity, the trial court concluded otherwise, and its factual conclusions are binding on this court because they are not plainly and palpably wrong. See Romano v. Romano, 703 So. 2d 374, 375 (Ala. Civ. App. 1997) ("We will not disturb the trial court's decision [in a child-support-modification case] on appeal unless there is a showing that the trial court abused that discretion or that the judgment is plainly and palpably wrong.").
The father also argues that the trial court erred in failing to disclose the manner in which it computed the reduction of the father's child-support obligation and in ascertaining that the amount of his child-support obligation should be reduced to 71% of the previous amount. On these points, I agree with the main opinion that
"[t]he premise underlying all the father's arguments is that the trial court was required to calculate the father's child-support obligation in the manner specified by Rule 32(C)(2), Ala. R. Jud. Admin., for parents whose combined adjusted gross income falls within the Rule 32, Ala. R. Jud. Admin., schedule."
––– So. 3d at –––– The father has failed to cite any legal authority holding that a trial court must set forth its child-support calculations when the child-support guidelines do not apply. See Rule 28(a)(10), Ala. R. App. P. The father has also failed to cite any legal authority holding that a trial court must follow the formulas set forth in Rule 32 when computing the amount of child support payable by each parent when the guidelines do not apply. Id. To the contrary, "[w]here the combined adjusted gross income exceeds the uppermost limit of the schedule, the amount of child support should not be extrapolated from the figures given in the schedule, but should be left to the discretion of the court." Comment to Rule 32, Ala. R. Jud. Admin. (as amended to conform to amendments effective October 4, 1993) The father has not made any pertinent argument that the trial court exceeded its discretion in reducing his child-support obligation by 29% using factors outside the guidelines.