
    Carl E. THOMPSON v. Mary F. THOMPSON.
    AV93000002.
    Court of Civil Appeals of Alabama.
    Oct. 21, 1994.
    
      Virginia W. Haas, Mobile, for appellant.
    W. Gregory Hughes, Mobile, for appellee.
   YATES, Judge.

The parties were divorced on March 22, 1991. By agreement, the wife was granted custody of the minor child; the husband was ordered to pay $800 per month child support and $2,200 per month periodic alimony. He also was ordered to maintain health insurance on the child and on the wife and to be responsible for medical expenses not covered by insurance until the child attains the age of 19.

Subsequently, both parties filed numerous petitions and motions. On January 27, 1998, the trial court entered an order finding the husband in contempt for failing to make alimony payments as ordered and allowing him to purge himself of the contempt “by obeying all future orders of this Court.” The wife was awarded a $15,048 judgment against the husband; child support was terminated, with the husband being awarded custody of the child.

The wife later filed an affidavit stating that the husband had refused to comply with the January 1993 order. The court entered an order for a writ of arrest on March 19, 1993; cash bond was set at $15,000; and the husband was incarcerated. The court later reduced bond to $1,500 because, it said, it appeared that the husband was unable to post the higher amount; upon payment of the bond, the husband was released.

Again, both parties filed numerous petitions and motions, with the wife alleging that the husband, although he claimed that he could not pay her the alimony owed, had purchased for his present wife a new automobile and a business, and that he was dissolving his corporation; in which he had 50 percent ownership, to avoid garnishment of his salary. The wife moved to have funds condemned that the husband had in his business bank accounts; the court granted her motion and directed the bank to pay the monies into the court “to be applied toward the satisfaction of the judgment entered on January 27, 1993 ... and the alimony arrearage accrued.” The husband claimed that the wife had had him and his present wife arrested a number of times on various charges, and that she had “pursued a campaign of destruction” and had ruined his business by sending his major supplier copies of pleadings that were before the court and by making telephone calls to the wives of officials in that business. He requested that all future alimony payments be terminated and that he be allowed certain credits against the alimony arrearage that he owed. He further requested the trial court to order the wife to pay child support.

After a hearing, the trial court entered an order on August 19, 1993, finding that, after certain credits were given to the husband and the condemned proceeds were paid to the wife, the husband had a $1,000 credit toward future alimony payments.

On September 17, 1993, the wife wrote a letter to the court requesting that it issue a writ of arrest against the husband, because, she said, the husband owed her alimony of $1,200 for August and $2,200 for September and because he had not provided proof of insurance; the trial court entered an order for writ of arrest on September 21, 1993.

On September 30, 1993, the husband filed his notice of appeal from the August 19 order and he also filed a motion to stay that order, or, in the alternative, to set a supersedeas bond. The trial court granted the motion to stay, conditioned upon the posting of a $2,500 supersedeas bond.

The husband first contends that the trial court’s denial of his motion to modify was arbitrary and unjust.

Following the presentation of ore tenus evidence, the judgment of a trial court regarding alimony matters is presumed correct and will not be reversed on appeal unless the judgment is unsupported by the evidence or is plainly and palpably wrong. Posey v. Posey, 634 So.2d 571 (Ala.Civ.App.1994). Periodic alimony may be modified where there has been a material change in circumstances; however, the burden is on the moving party to prove the material change. Boudreaux v. Boudreaux, 550 So.2d 1030 (Ala.Civ.App.1989). Factors the trial court may consider in determining whether to modify alimony include the ability of each spouse to earn income, the recipient spouse’s financial needs and the ability of the payor spouse to respond to those needs, the estate of each spouse, and the remarriage of the parties. Posey.

The husband claims that he proved that he could not pay $2,200 per month alimony to the wife, because, he states, his business was “destroyed” and his salary was much less than it was when the divorce judgment was entered; he lost his home in a sheriffs sale when the wife attempted to collect the alimony arrearage; and he now has custody of the child.

The testimony contains inconsistencies. Although the husband claims that the wife ruined his business, the husband’s former business partner stated that, as far as he knew, the wife had nothing to do with the demise of the company and that the husband wanted to dissolve the partnership and wanted to “go out on his own.” The partner further testified that he had received approximately $75,000 for his share of the business in 1993, and that the husband should have received the same amount. The husband testified that he opened two businesses in his present wife’s name and “took the money from one company into the other.” He also admitted that his present wife knew nothing about the businesses and that they are his companies. He testified that he deposited $27,000 into one of the new companies and that he spent approximately $47,000 on living expenses in May, June, and July.

The husband further testified that he worked as- an employee only, earning $500 per week, for a company owned by his former brother-in-law; however, the record reveals that the husband had lent money to that company and had purchased supplies for the company, using his company’s credit. The husband also admitted that he had been paid for a job by a supplier with whom he had previously done business, but that the job was for the company of his former brother-in-law. We note that the husband had purchased a 1993 Cadillac for his present wife during the time he was not paying the ordered amount of alimony. In light of these facts, we cannot say that the trial court’s judgment regarding the modification of alimony was plainly and palpably wrong. Posey, supra, 634 So.2d 571.

The husband next contends that the trial court erred in granting the wife’s motion for a rule nisi. The trial court in its August 19, 1993, order stated:

“That the Motion For Rule Nisi filed by the [wife] is hereby granted, and that the [husband] is to forthwith obtain insurance for the [wife] as provided for in the Judgment of Divorce. In the event the [husband] fails or refuses to do so, upon proper affidavit being filed, together with the physical description and address of the [husband], that a writ of arrest shall forthwith issue against the [husband].”

The husband claims that this amounted to a finding of contempt. He argues that he proved that he could not pay the alimony; therefore, he says, he cannot be found in contempt. However, in granting the motion for a rule nisi, the trial court gave the husband an opportunity to comply. We conclude that the trial court did not err in granting the motion for a rule nisi.

The husband contends that Rule 33.3, Ala.R.Crim.P., would be violated by implementation of the September 21,1993, writ of arrest. A person cannot be found in contempt without a hearing. See Rule 33.2(a), Ala.R.Crim.P. See also Rule 70A(c)(2), Ala. R.Civ.P.

The husband was provided notice and a hearing regarding the August 19,1993, order granting the motion for a rule nisi as to the insurance. However, regarding the $3,400 in alimony, the husband did not have the opportunity to present evidence. Therefore, as to the failure to provide evidence of insurance, we hold that the issuance of the writ of arrest was proper; however, as to the money allegedly owing for alimony, we hold that the trial court abused its discretion in issuing the writ of arrest. See Stack v. Stack, 646 So.2d 51 (Ala.Civ.App.1994).

Finally, the husband contends that the trial court erred in failing to award child support, or to state its reasons for failing to award it. We agree. Pursuant to the Child Support Guidelines, Rule 32(A), Ala.R.Jud.Admin., the trial court must apply the guidelines or make a written finding that the application of the guidelines would-be unjust or inappropriate. Therefore, we must reverse the judgment of the trial court and remand the cause for a determination of support payments in accordance with Rule 32.

Accordingly, the judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded for the entry of an order consistent with this opinion. Each party’s request for an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

ROBERTSON, P.J., concurs.

THIGPEN, J., concurs in part and dissents in part.

THIGPEN, Judge,

concurring in part and dissenting in part.

Since I would affirm the trial court’s discretionary denial of child support, I must respectfully dissent to that portion of the majority opinion.

The matters of child support and its subsequent modification rest soundly within the discretion of the trial court, and its judgment will not be reversed on appeal absent abuse. Thompson v. Hove, 596 So.2d 939 (Ala.Civ. App.1992). The modification of a prior judgment regarding child support requires proof of changed circumstances, and appellate review of that judgment, as in this case, is limited by the ore tenus rule. Tucker v. Tucker, 588 So.2d 495 (Ala.Civ.App.1991). Furthermore, modifications are particularly disfavored when only a short period of time separates the judgment and the modification request. Pugh v. State ex rel. Birdwell, 620 So.2d 46 (Ala.Civ.App.1993); Tucker, supra.

In this case, a modification order was entered in January 1993 that changed custody of the child to the husband and terminated child support. The parties’ agreement to change custody also dispensed with the obligation to pay child support. It is well settled that,

“the doctrine of changed circumstances is relevant in child support cases only where the complaining party seeks a modification of an earlier award of support or requests that a decree incorporating a prior agreement dispensing with the obligation to provide support (or establishing the amount of support payable) be altered.”

Armstrong v. Sparks, 360 So.2d 1012, 1013 (Ala.Civ.App.1978). See also Thompson, supra.

The requirement that the party seeking the modification show changed circumstances to justify modification of a prior judgment regarding child support continued with the implementation of Rule 32, Ala.R.Jud.Ad-min.Rule 32(A)(2)®, Ala.R.Jud.Admin. Therefore, when the husband’s May 1993 request for child support was considered, he was required to prove a change of circumstances since the January 1993 order. Thompson, supra. Even if the husband had proven a change of circumstances, that would not guarantee that he would prevail on his petition to modify. This court has stated:

“Although child support obligations may be modified upon a showing of a change of circumstances, we note that ‘[e]ven where such change is shown, modification of a prior judgment remains a matter within the discretion of the trial court. The exercise of this discretion is presumed correct and will not be reversed on appeal unless it is plainly and palpably wrong.’ [Thistlethwaite v. Thistlethwaite, 590 So.2d 317 (Ala.Civ.App.1991) (citations omitted)].”

Brining v. Brining, 600 So.2d 295, 296 (Ala.Civ.App.1992).

The most important and controlling factor in determining whether a modification of a child support order is appropriate is “a material change in the needs, conditions, and circumstances of the children.” Whitfield v. Whitfield, 570 So.2d 700, 703 (Ala.Civ.App.1990) (emphasis added); see also Guy v. Guy, 630 So.2d 465 (Ala.Civ.App.1993); Cassick v. Morgan, 628 So.2d 862 (Ala.Civ.App.1993); Browning v. Browning, 626 So.2d 649 (Ala.Civ.App.1993); and Ares v. Martinez, 611 So.2d 1086 (Ala.Civ.App.1992). “The guidelines are applicable to modification proceedings once the trial court finds that there has been a change in circumstances to warrant a modification.” Fowler v. Jennings, 588 So.2d 497, 498 (Ala.Civ.App.1991).

I find no evidence in this record demonstrating any material change in the “needs, conditions, and circumstances” of the child. Whitfield at 703. The wife argues that the husband “abandoned” the issue of child support, and in his brief, the husband concedes that “child support is not specifically mentioned in testimony.” It greatly concerns me that the record contains absolutely no evidence regarding the child’s needs, which are the very heart of this matter. Rule 32 has not removed the trial court’s consideration in this regard as the child’s needs “have been, and continue to be” factors for the trial court’s consideration. Elliott v. Williams, 631 So.2d 1020, 1022 (Ala.Civ.App.1993). Thus, the husband has failed to present evidence relating to the central factor in his modification request. Whitfield, supra; see also Rolen v. Pickering, 628 So.2d 850 (Ala.Civ.App.1993). The trial court did not find a change of circumstances, nor does the record support a conclusion that the husband had proven that a change of circumstances had occurred in the five months since the trial court dispensed with the child support obligation. Since the husband failed to show a change of circumstances, the trial court had no occasion to apply the child support guidelines. Moore v. Moore, 575 So.2d 95 (Ala.Civ.App.1990); see also Bobo v. Bobo, 585 So.2d 54 (Ala.Civ.App.1991).

In fact, absent changed circumstances, it is error for a trial court to modify a previous order regarding child support. Dimoff v. Dimoff, 606 So.2d 159 (Ala.Civ.App.1992); see also Cassick, supra; Ares, supra; McCormick v. McCormick, 603 So.2d 1110 (Ala.Civ.App.1992). In the instant ease, the trial court is simply “without authority to apply the child support guidelines to modify” the previous order. Dimoff at 161.

Even if this case were reviewed as an initial request to establish child support, the matter of whether to award child support has not been removed from “the trial court’s latitude and discretion” and that determination is “still committed to the sound discretion of the trial court.” Elliott v. Williams, 631 So .2d 1020, 1021 (Ala.Civ.App.1993); see also Kelly v. Kelly, 624 So.2d 601 (Ala.Civ.App.1993); and Bridges v. Bridges, 607 So.2d 289 (Ala.Civ.App.1992).

The mandatory application of the guidelines of Rule 32 does not arise until after the trial court determines to award child support. This principle has been applied and followed by this court since its inception, and was clearly enumerated in Doyle, wherein we held that

“actions concerning child support that are filed on or after October 9, 1989, although guided by the mandatory application of Rule 32, AR JA are still committed to the sound discretion of the trial court, and its decision on such matters will not be disturbed on appeal absent a finding that the trial court’s award is a palpable abuse of its discretion.”

Doyle v. Doyle, 579 So.2d 651, 653 (Ala.Civ.App.1991) (emphasis added); see e.g., Scott v. Stevens, 636 So.2d 444 (Ala.Civ.App.1994); Elliott, supra; Briscoe v. Briscoe, 600 So.2d 290 (Ala.Civ.App.1992); and Dinkel v. Dinkel, 598 So.2d 918 (Ala.Civ.App.1991). The trial court’s discretionary determination that an award of child support is appropriate triggers the mandatory application of Rule 32, Ala.R.Jud.Admin. The clear language of the rule addresses the determination regarding “the amount of the award” of child support. Rule 32(A), Ala.R.Jud.Admin. (Emphasis added.)

Since the husband did not cross the threshold matter of showing a change in circumstances in the five months since the last judgment, the trial court is without authority to determine support payments in accordance with Rule 32 as instructed. I believe the trial court properly denied the husband’s motion, and that its judgment should be affirmed. Therefore, I must respectfully dissent. 
      
      . This action was instituted prior to October 4, 1993, the effective date of amended Rule 32, Ala.R.Jud.Admin.
     