ALABAMA RULES OF JUDICIAL ADMINISTRATION
Rule 32.
Child-support guidelines
Preface Relating to Scope. This rule, as amended effective January 1, 2009,
shall apply to all new actions filed or proceedings instituted on or after January 1,
2009. Any actions or proceedings instituted before January 1, 2009, shall be
governed by Rule 32 as it read before January 1, 2009.
(A) Child-support guidelines established. Guidelines for child support are hereby
established for use in any action to establish or modify child support, whether
temporary or permanent. There shall be a rebuttable presumption, in any judicial
or administrative proceeding for the establishment or modification of child
support, that the amount of the award that would result from the application of
these guidelines is the correct amount of child support to be awarded. A written
finding on the record indicating that the application of the guidelines would be
unjust or inappropriate shall be sufficient to rebut the presumption if the finding is
based upon:
(i) A fair, written agreement between the parties establishing a
different amount and stating the reasons therefor; or
(ii) A determination by the court, based upon evidence presented in
court and stating the reasons therefor, that application of the
guidelines would be manifestly unjust or inequitable.
(1) REASONS FOR DEVIATING FROM THE GUIDELINES. Reasons for deviating from
the guidelines may include, but are not limited to, the following:
(a) Shared physical custody or visitation rights providing for periods of
physical custody or care of children by the obligor parent substantially in
excess of those customarily approved or ordered by the court;
(b) Extraordinary costs of transportation for purposes of visitation borne
substantially by one parent;
(c) Expenses of college education incurred prior to a child’s reaching the
age of majority;
(d) Assets of, or unearned income received by or on behalf of, a child or
children;
(e) The assumption under the Schedule of Basic Child-Support
Obligations that the custodial parent will claim the federal and state
income-tax exemptions for the children in his or her custody will not be
followed in the case;
(f) The actual child-case costs incurred on behalf of the children because
of the employment or job search of either parent exceeds the costs
allowed under subsection (B)(8) of this rule by twenty percent (20%) or
more; and
(g) Other facts or circumstances that the court finds contribute to the best
interest of the child or children for whom child support is being determined.
The existence of one or more of the reasons enumerated in this section does not require the court to deviate from the guidelines, but the reason or reasons may
be considered in deciding whether to deviate from the guidelines. The court may
deviate from the guidelines even if no reason enumerated in this section exists, if
evidence of other reasons justifying deviation is presented.
(2) STIPULATIONS. Stipulations presented to the court shall be reviewed by the
court before approval. No hearing shall be required; however, the court shall
use the guidelines in reviewing the adequacy of child-support orders
negotiated by the parties and shall review income statements that fully
disclose the financial status of the parties. The court, however, may accept
from the parties and/or their attorneys of record a Child-Support Guidelines
Notice of Compliance (Form CS-43) that indicates compliance with this rule
or, in the event the guidelines have not been followed, the reason for the
deviation therefrom.
(3) MODIFICATIONS. The guidelines shall be used by the parties as the basis
for periodic updates of child-support obligations.
(a) The provisions of any judgment respecting child support shall be
modified only as to installments accruing after the filing of the
petition for modification.
(b) A party seeking a modification of child support must plead and
prove that there has occurred a material change in circumstances
that is substantial and continuing since the last order of child
support.
(c) There shall be a rebuttable presumption that child support should
be modified when the difference between the existing child-support
award and the amount determined by application of these guidelines
varies more than ten percent (10%), unless the variation is due to
the fact that the existing child-support award resulted from a rebuttal
of the guidelines and there has been no change in the
circumstances that resulted in the rebuttal of the guidelines.
(d) The existence of the guidelines or periodic changes to the
guidelines in and of themselves do not constitute proof of a material
change in circumstances that is substantial and continuing.
(e) A trial court has discretion and authority to modify a child-support
obligation even when there is not a ten percent (10%) variation
between the current obligation and the guidelines when a petitioner
has proven a material change in circumstances that is substantial
and continuing. Likewise, a trial court has discretion to deny a
modification even when the ten percent (10%) variation is present,
based on a finding that the application of the guidelines in that case
would be manifestly unjust or inequitable.
(4) HEALTH-CARE NEEDS. All orders establishing or modifying child support
shall, at a minimum, provide for the children’s health-care needs through
health-insurance coverage, through cash medical support, or other means.
Normally, health insurance covering the children should be required if it is
available to either parent through his or her employment or pursuant to any
other group plan at a reasonable cost and is accessible to the children.
(B) Definitions.
(1) INCOME. For purposes of the guidelines established by this rule, “income”
means actual gross income of a parent, if the parent is employed to full
capacity, or the actual gross income the parent has the ability to earn if the
parent is unemployed or underemployed.
(2) GROSS INCOME.
(a) “Gross income” includes income from any source, and includes,
but is not limited to, salaries, wages, commissions, bonuses,
dividends, severance pay, pensions, interest, trust income,
annuities, capital gains, Social Security benefits, workers’
compensation benefits, unemployment-insurance benefits, disabilityinsurance
benefits, gifts, prizes, and preexisting periodic alimony.
(b) “Gross income” does not include child support received for other
children or benefits received from means-tested public-assistance
programs, including, but not limited to, Temporary Assistance for
Needy Families, Supplemental Security Income, food stamps, and
general assistance.
(3) SELF-EMPLOYMENT INCOME.
(a) For income from self-employment, rent, royalties, proprietorship
of business, or joint ownership of partnership or closely held
corporation, “gross income” means gross receipts minus ordinary
and necessary expenses required to produce this income, as
allowed by the Internal Revenue Service, with the exceptions noted
in subsection (B)(3)(b).
(b) “Ordinary and necessary expenses” does not include amounts
allowable by the Internal Revenue Service for the accelerated
component of depreciation expenses, investment tax credits, or any
other business expenses determined by the court to be
inappropriate for determining gross income for purposes of
calculating child support.
(4) OTHER INCOME. Expense reimbursements or in-kind payments received by
a parent in the course of employment, self-employment, or operation of a
business shall be counted as income if they are significant and reduce
personal-living expenses.
(5) UNEMPLOYMENT; UNDEREMPLOYMENT. If the court finds that either parent is
voluntarily unemployed or underemployed, it shall estimate the income that
parent would otherwise have and shall impute to that parent that income; the
court shall calculate child support based on that parent’s imputed income. In
determining the amount of income to be imputed to a parent who is
unemployed or underemployed, the court should determine the employment
potential and probable earning level of that parent, based on that parent’s
recent work history, education, and occupational qualifications, and on the
prevailing job opportunities and earning levels in the community. The court
may take into account the presence of a young or physically or mentally
disabled child necessitating the parent’s need to stay in the home and
therefore the inability to work.
(6) PREEXISTING CHILD-SUPPORT OBLIGATION. The amount of child support
actually being paid by a parent pursuant to an order for child support of other
children shall be deducted from that parent’s “gross income.” If a parent is
legally responsible for and is actually providing child support for other
children, but not pursuant to an order of child support, a deduction for an
“imputed preexisting child-support obligation” may be made from that parent’s
gross income. The imputed preexisting child-support obligation shall be that
amount specified in the schedule of basic child-support obligations based on
that parent’s unadjusted gross income and the number of other children for
whom that parent is legally responsible. “Other children” means children who
are not the subject of the particular child-support determination being made. If
the proceeding is one to modify an existing award of child support, no
deduction should be made for other children born or adopted after the initial
award of child support was entered, except for child support paid pursuant to
another order of child support.
(7) HEALTH-INSURANCE COVERAGE/CASH MEDICAL SUPPORT.
(a) Medical support in the form of health-insurance coverage and/or cash
medical support shall be ordered provided that health-insurance coverage
is available to either parent at a reasonable cost and/or cash medical
support is considered reasonable in cost. The health-insurance coverage
must be “accessible” to the children, as that term is defined in subsection
(c).
(b) Cash medical support may be ordered in addition to health-insurance
coverage. Cash medical support does not have to be a stand-alone
amount. Cash medical support for uninsured medical expenses can be
allocated between the parents.
(c) Definitions.
(1) Cash Medical Support. Cash medical support is an amount ordered
to be paid toward the cost of health insurance provided by a public
entity or by another parent through employment or otherwise, or for
other medical costs not covered by insurance.
(2) Health Insurance. Health insurance includes the fee for service,
health-maintenance organization, preferred-provider organization, and
other types of coverage that is available to either parent, under which
medical services could be provided to the dependent children.
(3) Reasonable Cost. Cash medical support or the cost of private
health insurance is considered reasonable in cost if the cost to the
parent responsible for providing medical support does not exceed 10%
of his or her gross income. For purposes of applying the 10% standard,
the cost is the cost of adding the child or children to existing coverage
or the difference between self-only and family coverage, whichever is
greater.
(4) Accessible. Health-insurance coverage shall be deemed
“accessible” if ordinary medical care is available to the children within a
100-mile radius of their residence.
(d) The actual cost of a premium to provide health-insurance benefits for
the children shall be added to the “basic child-support obligation” and shall
be divided between the parents in proportion to their adjusted gross
income in the percentages indicated on the Child-Support Guidelines form
(Form CS-42).
(e) The amount to be added to the “basic child-support obligation” and
inserted in Line 6 (“Health-Insurance Costs”) of the Child-Support
Guidelines form (Form CS-42) shall be the pro rata portion of the medicalinsurance
premium attributable to the child or children who are the subject
of the support order, which shall be calculated by dividing the total
medical-insurance premium actually paid by, or on behalf of, the parent
ordered to provide the coverage by the total number of persons (adult
and/or children) covered and then multiplying the result by the number of
children who are the subject of the support order.
(f) After the “total child-support obligation” is calculated and divided
between the parents in proportion to their “monthly adjusted gross
income,” the amount added pursuant to subsection (e) shall be deducted
from the obligor’s share of the total child-support obligation, provided the
obligor actually pays the premium. If the obligee is actually paying the
premium, no further adjustment is necessary.
(g) If, at any time while a child-support order providing for an insurance
adjustment is in effect, the insurance coverage is allowed to lapse, is
terminated, or otherwise no longer covers the children for whose benefit
the order was issued, the court (i) may find the amount deducted from the
obligor’s child-support obligation therefor to be an arrearage in the
obligor’s total child-support obligation; (ii) may find the obligor liable for
medical expenses that would otherwise have been covered under the
insurance; and/or (iii) may enter such other order as it shall deem
appropriate.
(8) CHILD-CARE COSTS. Child-care costs, incurred on behalf of the children
because of employment or job search of either parent, shall be added to the
“basic child-support obligation.” Child-care costs shall not exceed the amount
required to provide care from a licensed source for the children, based on a
schedule of guidelines developed by the Alabama Department of Human
Resources. Before the Alabama Department of Human Resources
implements any revision to the schedule of child-care-cost guidelines, it shall
provide the administrative director of courts (“the ADC”) a copy of the revised
schedule. The ADC shall, as soon as reasonably practicable thereafter,
disseminate the revised schedule to all circuit and district court judges and
clerks and the Family Law Section of the Alabama State Bar. The clerk shall
maintain the current schedule in his or her office, shall make it available for
review, and shall provide copies of it on request, at the customary cost for
copies of documents.
(9) Credit for Third-Party Payment to Child.
(i) Social Security retirement, survivor’s, or disability insurance
benefits, veteran’s benefits, railroad retirement, or any other thirdparty
payments paid for the benefit of the children based on the
support obligor’s earnings record or other eligibility requirement
attributable to the support obligor shall be credited against that
parent’s support obligation, for so long as that support obligation is
being received by the support payee, as follows:
(1) Determine the total child-support obligation; then
(2) Determine the monthly benefit amount that is attributable to
the obligor and that the support recipient receives for the
children and then subtract that amount from the total childsupport
obligation.
(a) If the children’s obligor-based benefit exceeds the total
support amount, then no additional support amount should
be ordered.
(b) If the children’s obligor-based benefits are less than the
obligor’s total support amount, then the difference between
the benefits received for the children and the total support
amount becomes the ordered child-support obligation.
(ii) The following payments made for the benefit of a child by a third
party shall not be credited toward the support obligor’s child-support
obligation:
(1) Payments that are not based on the support obligor’s
earnings record or other eligibility requirement attributable to the
support obligor;
(2) Any payments resulting from the disability of the child;
(3) Any payment received in excess of the amount of child
support owed to the child;
(4) Any payment received by the child shall not be credited
against arrearages that accrued before the date the obligor was
deemed eligible to receive the third-party payment;
(5) Social Security income benefits paid to the child;
(6) Adoption subsidy paid to adoptive parents of a special-needs
child pursuant to ‘ 26-10-20 et seq., Code of Alabama 1975.
(10) SPLIT CUSTODY. In those situations where each parent has primary
physical custody of one or more children, child support shall be computed in
the following manner:
(a) Compute the child support the father would owe to the mother
for the children in her custody as if they were the only children of
the two parties; then
(b) Compute the child support the mother would owe to the father
for the children in his custody as if they were the only children of
the two parties; then
(c) Subtract the lesser child-support obligation from the greater.
The parent who owes the greater obligation should be ordered to
pay the difference in child support to the other parent, unless the
court determines, pursuant to other provisions of this rule, that it
should deviate from the guidelines.
(C) Determination of Recommended Child-Support Obligation.
(1) BASIC CHILD-SUPPORT OBLIGATION. The basic child-support obligation shall
be determined by using the schedule of basic child-support obligations. The
category entitled “combined adjusted gross income” in the schedule means
the combined monthly adjusted gross incomes of both parents. “Adjusted
gross income” means gross income less preexisting child-support obligations,
less preexisting periodic alimony actually paid by a parent to a former spouse.
For combined adjusted gross-income amounts falling between amounts
shown in the schedule, the lower value shall be used if the combined adjusted
gross income falls less than halfway between the amounts shown in the
schedule. Where the combined adjusted gross income falls halfway or more
than halfway between two amounts, the higher value shall be used. The
category entitled “number of children due support” in the schedule means
children for whom the parents share joint legal responsibility and for whom
child support is being sought. The 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.
(2) COMPUTATION OF CHILD SUPPORT. A total child-support obligation is
determined by adding the basic child-support obligation, work-related childcare
costs, and health-insurance costs. The total child-support obligation shall
be divided between the parents in proportion to their adjusted gross incomes.
The obligation of each parent is computed by multiplying the total child-
support obligation by each parent’s percentage share of their combined
adjusted gross income. The custodial parent shall be presumed to spend his
or her share directly on the child.
(3) ROUNDING. All dollar amounts used in child-support calculations under this
rule, including the recommended child-support order, shall be rounded to the
nearest dollar, and all percentages shall be rounded to the nearest one
percent.
(4) ADDITIONAL AWARDS FOR CHILD SUPPORT. In addition to the recommended
child-support order, the court may make additional awards for extraordinary
medical, dental, and educational expenses if (i) the parties have in writing
agreed to these awards or (ii) the court, upon reviewing the evidence,
determines that these awards are in the best interest of the children and
states its reasons for making these additional awards.
(D) Schedule of basic child-support obligations. A schedule of basic child-support
obligations appears as an appendix to this Rule 32.
(E) Standardized child-support guidelines form, child-support-obligation income
statement/affidavit form, and child-support guidelines notice of compliance form.
A standardized Child-Support Guidelines form (Form CS-42 as appended to this
rule) and a Child-Support-Obligation Income Statement/Affidavit form (Form CS41
as appended to this rule) shall be filed in each action to establish or modify
child-support obligations and shall be of record and shall be deemed to be
incorporated by reference in the court’s child-support order. In conformance to
section (A)(2) of this rule, in stipulated cases the court may accept the filing of a
Child-Support Guidelines Notice of Compliance form (Form CS-43 as appended
to this rule). The form, content, and numbering schemes of the Child-Support
Guidelines form, the Child-Support-Obligation Income Statement/Affidavit form,
and the Child-Support Guidelines Notice of Compliance form shall be prescribed
by the ADC.
(F) Income statements. Income statements of the parents shall be verified with
documentation of both current and past earnings. Suitable documentation of
current earnings includes pay stubs, employer statements, or receipts and
expenses if self-employed. Documentation of current earnings shall be
supplemented with copies of the most recent tax return to provide verification of
earnings over a longer period or shall be supplemented with other documentation
as the court directs. Intentional falsification of information presented on the ChildSupport-Obligation
Income Statement/Affidavit form shall be deemed contempt of
court. Documentation of earnings used in preparing the Child-Support-Obligation
Income Statement/Affidavit form shall be maintained by the parties and made
available as directed by the court.
(G) Review of guidelines. The Advisory Committee on Child-Support Guidelines
and Enforcement (hereinafter “the Committee”), appointed by the Supreme
Court, shall, at least once every four years, review the child-support guidelines
and the schedule of basic child-support obligations to ensure that their
application results in appropriate child-support determinations. Any
recommendations concerning the child-support guidelines and/or the schedule of
basic child-support obligations shall be reduced to writing and sent by the
chairman of the Committee to the clerk of the Supreme Court for review by the
Supreme Court. Any proposed changes to the child-support guidelines and/or the
schedule of basic child-support obligations that are approved by the Supreme
Court shall be sent by the clerk of the Supreme Court to the ADC for distribution
to the trial courts.
[Amended 9-28-87, eff. 10-1-87; Amended 8-29-89, eff. 10-9-89; Amended 8-24-
93, eff. 10-4-93; Amended 11-19-2008; eff. 1-1-2009; Amended 2-25-2009; eff.
3-1-2009; Amended 2-11-2015, eff. 4-1-2015; Amended 3-2-2018, eff 6-1-2018;
Comment to Rule 32(B)(9) amended 5-1-2018, eff. 6-1-2018.]
Comment
(As amended to conform to amendments effective October 4, 1993)
Rule 32 establishes guidelines as a rebuttable presumption for the
ordering of child support awards. These guidelines were adopted in response to
requirements set forth in the Child Support Enforcement Amendments of 1984
(P.L. 98-378) and the Family Support Act of 1988 (P.L. 100-485). The guidelines
will provide an adequate standard 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.
These guidelines are based on the income shares model developed by
the National Center for State Courts and are founded on the premise that
children should not be penalized as a result of the dissolution of the family unit
but should continue to receive the same level of support that would have been
available to them had the family unit remained intact. Under the guidelines,
attorneys for the plaintiff and defendant will be required to submit a Child Support
Guidelines form and Child Support Obligation Income Statement/Affidavit form in
each action to establish or modify child support. The Child Support Guidelines
form will set forth the combined income available to the family unit, the basic
child support obligation as determined from the Schedule of Basic Child Support
Obligations (Appendix to Rule 32), and adjustments to the basic obligation for
work-related child care expenses and health insurance premiums. A portion of
the adjusted total child support obligation is then ascribed to each parent based
on his/her percentage share of the combined family income. The Child Support
Guidelines form sets forth the recommended child support obligation for the
noncustodial parent, which includes an adjustment for the cost of the health
insurance premium if such a premium is paid by the noncustodial parent. The
guidelines assume that the custodial parent will directly provide his/her
proportionate share of support to the children. In addition to the recommended
child support obligation, the court may make additional awards for extraordinary
medical, dental, and educational expenses if the court finds such awards to be in
the children’s best interest or if the parents have agreed to such awards.
The Schedule of Basic Child Support Obligations was developed through
research sponsored by the National Center for State Courts and is based on
extensive economic research on the cost of supporting children at various
income levels. This schedule is based on gross income and has been adjusted
for Alabama’s income distribution relative to the U.S. income distribution. It also
incorporates the 1987 federal income tax provisions as well as the withholding
schedule for Alabama state income tax.
Other assumptions incorporated in the Schedule of Basic Child Support
Obligations include:
(1) Tax Exemptions. The Schedule of Basic Child Support Obligations
assumes that the custodial parent will take the federal and state income tax
exemptions for the children in his or her custody;
(2) Health Care Costs. In respect to health care costs, the Schedule of
Basic Child Support Obligations assumes unreimbursed medical costs of $200
per family of four per year. These assumed costs include medical expenses not
covered or reimbursed by health insurance or Medicaid or Medicare; and
(3) Visitation. The Schedule of Basic Child Support Obligations is
premised on the assumption that the noncustodial parent will exercise customary
visitation rights, including summer visitation. Any abatement of child support
because of extraordinary visitation should be based on visitation in excess of
customary visitation.
The schedule of basic child support obligations includes combined gross
incomes ranging from $550 to $10,000 a month. Rule 32(C)(1) provides that the
court may use its discretion in determining child support where the combined
adjusted gross income is below the lowermost levels or above the uppermost
levels of the schedule. To further the consistency of awards, a court may wish to
issue an order establishing minimum child support obligations for combined
adjusted gross incomes of less than $550. Where 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.
Rule 32(B)(8) provides an adjustment for work-related child care costs,
provided such costs do not exceed those on the schedule of guidelines for
licensed child care costs published by the Alabama Department of Human
Resources (DHR). The rule requires that copies of the DHR schedule of
guidelines for child care costs be available through the office of the clerk or
register of each court where child support actions are filed. Copies of the
schedule of guidelines for child care costs should also be available in the county
offices of the Department of Human Resources.
The Alabama child support guidelines do not specifically address the
problem of establishing a support order in joint legal custody situations. Such a
situation may be considered by the court as a reason for deviating from the
guidelines in appropriate situations, particularly if physical custody is jointly
shared by the parents. Shared physical custody, regardless of “legal custodial
arrangements,” is an appropriate reason for deviation, Section (A)(1)(a). “Shared
physical custody” refers to that situation where the physical placement is shared
by the parents in such a manner as to assure the child frequent and continuing
contact and time with both parents. Because of the infinite possibilities that exist
in terms of time spent with each parent and other considerations associated with
such custody, a determination of support is to be made on a case-by-case basis
and is left to the sound discretion of the trial court, to be based on findings made
at or after trial or upon a fair written agreement of the parties. When a shared
physical custody situation results in a support award that deviates from the award
that would result from application of the guidelines, the trial court’s order, or the
written agreement of the parties, must specify and explain the reason for the
deviation.
The guidelines also do not address the problem of subsequent children or
families. While no deduction may be made for children born or adopted after an
initial award of support, unless made pursuant to another order of support or as
otherwise provided in this rule, a court may consider evidence of support
provided by a party for after-born or adopted children offered in an attempt to
rebut the guidelines’ presumptions. See Loggins v. Houk, 595 So.2d 488
(Ala.Civ.App.1991).
The Schedule of Basic Child Support Obligations assumes that a family of
four will have approximately $200 in unreimbursed medical expenses each year.
In providing for the payment of deductibles and/or other noncovered medical
expenses by the parties, it should be assumed that those expenses are in excess
of this amount. Courts and parties may wish to consider whether noncovered
medical and/or dental expenses should be allocated in the same percentages as
the health insurance premiums are allocated pursuant to this rule and as entered
on the Child Support Guidelines form (Form CS-42).
When provisions for payment of a health insurance premium are made as
provided in Rule 32, the court, or the parties drafting an agreement, should also
consider requiring proof that the children have been enrolled in the health
insurance plan and proof of the actual cost of dependent coverage. The court
should, in its order of child support, require the parent providing dependent
insurance coverage to submit annually proof of continued coverage to the other
parent, the court, or the designated child support enforcement agency, and
should further require provision of an identification card or other evidence of
insurance sufficient for the children to be afforded benefits of such insurance
coverage by service providers.
The Supreme Court’s Advisory Committee on Child Support Guidelines
and Enforcement, which assisted in drafting this rule, has recommended that
child support obligations be determined before the court considers spousal
support or other obligations.
Comment to Amendments
Effective January 1, 2009
Rule 32 was amended effective January 1, 2009, to address certain
issues and to make technical changes.
The first paragraph of this rule, entitled, “Preface Relating to Scope,”
provides that the amended rule is effective January 1, 2009, and will apply to all
new actions filed or proceedings instituted on or after that date. Any actions or
proceedings instituted before January 1, 2009, will be governed by Rule 32 as it
read before that date.
Rule 32(A)(2), entitled “Stipulations,” was amended to delete the last
sentence, which is also found in Rule 32(E).
Rule 32(A)(3), entitled “Modifications,” was amended by adding
subsection (b), which emphasizes that under current Alabama case law a party
seeking a modification of child support must plead and prove that a material
change in circumstances has occurred since the entry of the last order of child
support that is substantial and continuing.
Former subsection (b) of Rule 32(A)(3) was moved to subsection (c).
Subsections (d) and (e) were added to Rule 32 (A)(3). Subsection (d) clarifies
that the mere existence of the guidelines or any periodic changes to the
guidelines, including these latest changes, do not, in and of themselves,
constitute proof of a material change in circumstances that is substantial and
continuing to warrant the filing of a modification of child support. Subsection
(e) restates that a trial court may modify a child-support obligation even when
there is not a 10 percent variation between the current obligation and the
guidelines when a petitioner has proven a material change in circumstances that
is substantial and continuing, or it may deny a modification even when the 10
percent variation exists based on a finding that the application of the guidelines in
that case would be manifestly unjust or inequitable.
In Rule 32(B)(2)(b), the definition of “Gross Income” was amended to
change the term “Aid to Families with Dependent Children,” which is no longer
used, to “Temporary Assistance for Needy Families.”
The Supreme Court’s Advisory Committee on Child-Support Guidelines
and Enforcement considered the issue of allowing a deduction beyond what is
provided in Rule 32(B)(6) for a parent paying child support if that parent has
other children who are not the subject of the particular child-support
determination being made. After many discussions, the Advisory Committee
decided not to recommend an amendment to Rule 32(B)(6), which allows a
parent paying child support to deduct from that parent’s gross income the amount
of child support actually being paid by the person pursuant to a child-support
order for other children or an imputed amount if the parent is legally responsible
for and is actually providing child support for other children not covered by a
child-support order.
The Advisory Committee also decided not to recommend an amendment
to the guidelines to address the issue of subsequent children or families.
Although no deduction may be made for children born or adopted after an initial
award of support unless the deduction is made pursuant to another order of
support or as otherwise provided in this rule, a court may consider evidence of
support provided by a party for after-born or adopted children offered in an
attempt to rebut the presumptions in the guidelines. See Loggins v. Houk, 595
So. 2d 488 (Ala. Civ. App. 1991). A decision regarding an issue raised
concerning subsequent children or families is to be made on a case-by-case
basis and is left to the sound discretion of the trial court, to be based on findings
made at or after trial or upon a fair written agreement of the parties. If a
deduction for subsequent children or families results in a support award that
deviates from the award that would result from application of the guidelines, the
trial court’s order, or the written agreement of the parties, must specify and
explain the reason for the deviation.
In Rule 32(B)(8), the definition of “Child-Care Costs” was amended to
delete reference to registers receiving copies of the Department of Human
Resources’ schedule of child-care-cost guidelines because there are no longer
any registers.
Rule 32(G) was amended to provide that the Advisory Committee on
Child-Support Guidelines and Enforcement appointed by the Supreme Court,
instead of the administrative director of courts, shall, at least once every four
years, review the child-support guidelines and the schedule of basic child-support
obligations to ensure that their application results in appropriate child-support
determinations. Language was also added to provide that any recommendations
concerning the child-support guidelines and/or the schedule of basic childsupport
obligations shall be reduced to writing and sent by the chairman of the
Committee to the clerk of the Supreme Court for review by the Supreme Court.
Any proposed changes to the child-support guidelines and/or the schedule of
basic child-support obligations that are approved by the Supreme Court shall be
sent by the clerk of the Supreme Court to the administrative director of courts for
distribution to the trial courts.
The original schedule of basic child-support obligations was developed
through research sponsored by the National Center for State Courts. The
revised schedule of basic child-support obligations was updated and is based on
the latest extensive economic research on the cost of supporting children at
various income levels. Specifically, the revised schedule of basic child-support
obligations is based on estimates of child-rearing expenditures that were
developed applying the Rothbarth methodology to 1998-2004 expenditures data
and updated to 2007 price levels. The revised schedule of basic child-support
obligations is also based on gross income and has been adjusted for Alabama’s
income distribution relative to the income distribution for the United States. It also
incorporates the 2007 federal and State of Alabama personal income-tax
withholding formulas.
Other assumptions incorporated in the revised schedule of basic childsupport
obligations include:
(1) Tax exemptions. The schedule of basic child-support obligations
assumes that the custodial parent will take the federal and state income-tax
exemptions for the children in his or her custody;
(2) Health-care costs. In respect to health-care costs, the schedule of
basic child-support obligations assumes unreimbursed medical costs of $250 per
child per year. These assumed costs include medical expenses not covered or
reimbursed by health insurance, Medicaid, or All Kids, or insurance from another
public entity up to $250 per child per year;
(3) Visitation. The schedule of basic child-support obligations is premised
on the assumption that the noncustodial parent will exercise customary visitation
rights, including summer visitation. Any abatement of child support because of
extraordinary visitation should be based on visitation in excess of customary
visitation; and
(4) Self-support reserve. The schedule of basic child-support obligations
incorporates a self-support reserve of $851 per month. It is based on the 2007
federal poverty guidelines for one person but is also realigned to consider
Alabama incomes in the same manner as the revised schedule. The adjustment
is incorporated into the schedule for combined gross incomes below: $1,100 for
one child; $1,350 for two children; $1,550 for three children; $1,700 for four
children; $1,900 for five children; and $2,100 for six children. The evidence on
child-rearing expenditures indicates a higher amount is expended on children
below these income levels than what is shown in the schedule of basic childsupport
obligations.
The entire revised schedule of basic child-support obligations includes
combined gross incomes ranging from $0 to $20,000 a month. Rule 32(C)(1)
provides that the court may use its discretion in determining child support when
the combined adjusted gross income is below the lowermost levels or above the
uppermost levels of the schedule. To further the consistency of awards, a court
may wish to issue an order establishing minimum child-support obligations for
combined adjusted gross incomes of less than $800. When 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.
The revised schedule of basic child-support obligations assumes that each
child will have $250 in unreimbursed medical expenses each year up to $750 for
three children per year and $75 per each additional child thereafter. This includes
ordinary medical expenditures such as over-the-counter medicines, Band-Aids,
and co-pays for well visits. In providing for the payment of deductibles and/or
other noncovered medical expenses by the parties, it should be assumed that
those expenses are in excess of this amount.
Comment to Amendments
Effective March 1, 2009
Rule 32(A)(4), “Health-Care Needs,” was amended to state that healthinsurance
coverage may be provided through cash medical support and that the
coverage must be accessible to the children. These provisions are required in
state child-support guidelines pursuant to federal medical-support regulations.
See 45 C.F.R. § 302.56(c)(3).
The title to Rule 32(B)(7) was changed from “Health-Insurance Premiums”
to “Health-Insurance Coverage/Cash Medical Support” to more accurately
describe the rule once the new provisions have been added.
Subsection (a) was added to ensure that the State’s child-support
guidelines are in compliance with 45 C.F.R. § 302.56(c)(3). The provisions that
the health insurance be available to a parent at reasonable cost and that
coverage be accessible to the children were included pursuant to 45 C.F.R. §
303.31(b)(1).
Subsection (b) was added to provide that cash medical support may be
ordered in addition to health-insurance coverage, that cash medical support does
not have to be a stand-alone amount, and that cash medical support can be
allocated between the parents for responsibility for uninsured medical expenses.
Subsection (c) was added to define certain terms. The definition of “cash
medical support” tracks the language of 45 C.F.R. § 303.31(a)(1). The definition
of “health insurance” tracks the language of 45 C.F.R. § 303.31(a)(2). The
definition of “reasonable cost” tracks the language of 45 C.F.R. § 303.31(a)(3).
The Supreme Court’s Advisory Committee on Child-Support Guidelines and
Enforcement voted to provide that cash medical support or the cost of private
health insurance is considered reasonable if the cost to the parent responsible
for providing medical support does not exceed 10% of his or her gross income.
For purposes of applying the 10% standard, the cost is the greater of the cost of
adding the child to existing coverage or the difference between self-only and
family coverage. A definition of “accessible” was added to comply with 45 C.F.R.
§ 303.31(b)(1). The federal government allows states to define “accessible.”
The Advisory Committee chose to define this term as health-insurance coverage
for ordinary medical care to children available to the children within a 100-mile
radius of their residence.
Former subsection (a) was renumbered as subsection (d).
Former subsections (b), (c), and (d) were renumbered subsections (e), (f),
and (g), respectively. Only technical changes were made to these subsections.
Comment to Amendments Effective April 1, 2015
Rule 32 was amended effective April 1, 2015, to add two additional
specific reasons for the court to deviate from the child-support guidelines and to
provide a more equitable manner of treating the inclusion of health-insurance
premiums in the calculation of child support.
A new subsection (A)(1)(e) was added to specifically permit the court to
deviate from the guidelines if the custodial parent is not claiming the federal and
state income-tax exemptions for the child or children, as is assumed under the
Schedule of Basic Child-Support Obligations.
Subsection (A)(1)(f) was added to specifically permit the court to deviate
from the guidelines in the instances in which the actual child-care costs exceed
the costs allowed under subsection (B)(8) of the rule by at least 20 percent
(20%). This addition will allow the court to consider all the factors surrounding the
child-care arrangements in each individual case, including the acceleration in
child-care costs. Also, this change furthers the policy of encouraging both
parents to seek and maintain employment to help support their child.
Former subsection (A)(1)(e) was redesignated as subsection (A)(1)(g) in
light of the additions of the two new subsections.
Subsection (B)(7)(e) was amended to provide a more equitable
determination of the actual cost of the health-insurance premiums for a child in
the calculation of child support. The former rule required the inclusion of the
actual amount of the total insurance premium for family/dependent coverage,
regardless of which children were included under that coverage. That method of
calculation was based on outdated modes of dependent health-insurance
coverage and had the potential to lead to inequitable results, as demonstrated in
Hein v. Fuller, 93 So. 3d 961 (Ala. Civ. App. 2012). The inclusion of the pro rata
portion of the medical-insurance premium attributable to a child who is the
subject of the support order will more fairly represent the true cost of medical
coverage for the child. The addition of the language that allows the court to base
the calculations on the premium paid “by, or on behalf of, the parent” reflects the
existing practice of stepparents’ providing medical insurance for their stepchildren
under their dependent-coverage policies and fosters the goal of promoting health
coverage for children.
Comment to Adoption of Rule 32(B)(9)
Effective June 1, 2018
A new subdivision (9) was added to subsection (B) and what was
subdivision (9) was renumbered subdivision (10). The new subdivision (9) allows
the obligor to receive credit against child-support obligations for certain thirdparty
payments made directly to the payee. Subsection (B)(9)(i) is based on
Section 3.07 (Social Security Benefit Credit) of the 2013 Michigan Child Support
Formula Manual (effective January 1, 2013), which provides credits for certain
benefits provided by government insurance programs, with the addition of credit
for other third-party payments such as railroad retirement benefits.
Subsection (B)(9)(i) is consistent with current Alabama caselaw. In
Goldman v. Goldman, 197 So. 3d 487 (Ala. Civ. App. 2015), the Alabama Court
of Civil Appeals held that the veteran’s disability benefits of the former husband
were to be considered income for purpose of calculating his child-support
obligation. A noncustodial parent cannot be required to pay child support when
Social Security payments received by a child based on a parent’s disability
exceeds the guideline amounts. Self v. Self, 685 So. 2d 732 (Ala. Civ. App.
1996). The obligor is also entitled to a credit against his or her obligation when a
child receives benefits based on the obligor’s retirement benefits. Adams v.
Adams, 107 So. 3d 194 (Ala. Civ. App. 2012). Notwithstanding, if the third-party
payment to the child is stopped for any reason, the child support owed by the
obligor remains the amount of the existing child-support order. For example, if a
child is receiving a third-party payment from Social Security that terminates when
the child reaches the age of 18, the obligation of the obligor to pay the court-
ordered child support will remain in effect until the child reaches the age of
majority.
The exclusions of credit enumerated in subsection (B)(9)(ii) reflect current
Alabama law. Alabama has consistently held that credit is not allowed for a
benefit a child receives based on the work history of someone other than the
obligor. See Hebert v. Stephenson, 574 So. 2d 835 (Ala. Civ. App. 1990). See
also the court’s discussion in Hebert regarding child-support credit based on the
child’s own disability. 574 So. 2d at 837. Also, the exclusion of credit for Social
Security income benefits in subsection (B)(9)(ii)(5) is consistent with Lightel v.
Myers, 791 So. 2d 955 (Ala. Civ. App. 2000), holding that a parent should not get
credit for the Social Security income benefits payable to the child as a
“supplement to income” for the child based on the child’s disability, as was
clarified by the court in Adams v. Adams, 107 So. 3d 194 (Ala. Civ. App. 2012),
which held that credit could be given to a parent whose child received Social
Security retirement benefits based on the parent’s work history and, thus, are a
“substitute income source.” Likewise, the exclusion of credit for adoption-subsidy
pay in subsection (B)(9)(ii)(6) is consistent with current law because the adoption
subsidy is not a “substitute income source”; rather, it is supplemental to the
adoptive parents’ income. W.R. v. C.R., 75 So. 3d 159 (Ala. Civ. App. 2011).
Note from the reporter of decisions: The order amending Rule 32,
effective January 1, 2009, and adopting the Comment to Amendments Effective
January 1, 2009, is published in that volume of Alabama Reporter that contains
Alabama cases from 994 So. 2d.
Note from the reporter of decisions: The order amending Rule 32(A)(4)
and Rule 32(B)(7), effective March 1, 2009, and adopting the Comment to
Amendments Effective March 1, 2009, is published in that volume of Alabama
Reporter that contains Alabama cases from 999 So. 3d.
Note from the reporter of decisions: The order amending Rule 32(A)(1)
and Rule 32(B)(7)(e), effective April 1, 2015, and adopting the Comment to
Amendments Effective April 1, 2015, is published in that volume of Alabama
Reporter that contains Alabama cases from 158 So. 3d.
Note from the reporter of decisions: The order adopting Rule 32(B)(9)
and renumbering what was Rule 32(B)(9) as Rule 32(B)(10) effective June 1,
2018, is published in that volume of Alabama Reporter that contains Alabama
cases from ___ So. 3d.
Note from the reporter of decisions: The order adopting the Comment
to the adoption of Rule 32(B)(9), effective June 1, 2018, is published in that
volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.
