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ALABAMA COURT OF CIVI L APPEAL S

SPECIAL TERM, 2009

2080518


Marlanna B. Powell

V .

James Powell

Appeal from Dallas Circuit Court
(DR-08-143)

PITTMAN, Judge.

This appeal concerns the child-support component of a

judgment entered by the Dallas Circuit Court divorcing

Marlanna B. Powell ("the mother") and James Powell ("the

father"). The mother filed a complaint in July 2008, seeking,

among other things, a divorce based upon incompatibility of

temperament, custody of the parties' now two-year-old child,
and an award of child support in accordance with Rule 32, Ala.

R. Jud. Admin., as then in effect.^ The father was served,
but he did not retain counsel; the parties then settled all
issues between them except for the appropriate amount of child
support. At an ore tenus hearing, the mother's attorney
submitted a Form CS-42 (a "Child-Support-Guidelines" form)
indicating that the father earned a gross amount of $3,524 per
month, a figure derived from an earning statement indicating
that the father had earned a total of $42,292.65 at his job
during 2008. The father, however, disputed the proposition
that the Form CS-42 submitted by the mother's attorney
properly stated his current monthly income, as the following
transcribed exchange indicates (emphasis added):

"THE COURT: ... [W] hat is it that you want me to
know?

"[The father]: Sir, he is saying I make $3,400 a
month. I don't make that. Here's the chart I had.
It's based on the court system. These are the check
stubs running concurrent to today from 9-6 until
now.

^The Alabama Supreme Court has recently amended portions
of Rule 32, Ala. R. Jud. Admin.; those amendments are,
however, effective January 1, 2009, and March 1, 2009, and are
not applicable in this case.

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"THE COURT: What?

"[The father]: Here are the check stubs showing that
I don't make the substantial amount that he is
saying I do. I don't make but [$12,000.

"THE COURT: I mean this is your earning statement,
isn't it?

"[The father]: Right. And it will be like that at
the end of the year. I might go to work and be laid
off by the economy being the way it is. ...

"THE COURT: Are y'all just going to let me look at
this?
"[The mother's attorney]: Yes, sir.
"[The father]: Right.
"THE COURT: And I will give you a ruling on it."
Although the mother had requested a monthly child-support
award of $654, the trial court awarded only $500 per month.
The mother filed a postjudgment motion challenging that award
as an impermissible deviation from the child-support
guidelines, but that motion was denied. The mother now
appeals, reiterating her contention made in the trial court as
to the child-support award.

"Under the well-established ore tenus rule, the
trial court's judgment is presumed correct; this
court will not reverse the judgment absent a showing
that the trial court's findings are plainly and

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palpably wrong or that the trial court abused its
discretion. Moreover, matters relating to child
support 'rest soundly within the trial court's
discretion, and will not be disturbed on appeal
absent a showing that the ruling is not supported by
the evidence and thus is plainly and palpably
wrong.'"

Scott V. Scott, 915 So. 2d 577, 579 (Ala. Civ. App. 2005)
(citations omitted). Moreover, "Alabama law is well settled
that an '"appellant has the burden of ensuring that the record
contains sufficient evidence to warrant reversal,"'" and "when
a trial court's judgment '"is based on evidence that is not
before the appellate court, we conclusively presume that the
court's judgment is supported by the evidence."'" Id. at 580

(citations omitted).

As we have noted, the mother's counsel submitted a Form
CS-42 that was premised upon the inference that because the
father had earned $ 42,292.65 during 2008, his monthly gross
income should be calculated as being $3,524 per month. Based
upon that inference, the mother posited in the form that the
parties' joint monthly adjusted gross income should be
determined to be $5,119 and that the father's share of the
recommended basic child-support obligation of $665 plus
permissible additional costs (such as day-care costs and

health-insurance premiums) should be 64.5% of $1,014, or $654.
However, the trial court was presented with countervailing
testimonial evidence (and documentary evidence not appearing
in the appellate record) tending to indicate that the father's
actual monthly gross income as of the time of trial was only
approximately $2,000; if the trial court believed that
testimony, as it properly could have under Scott, the father's
monthly adjusted gross income would be reduced to $1,780

(accounting for his preexisting child-support obligation of
$220), and the parties' total monthly adjusted gross income
would fall to $3,595, of which the father's share would be
49.5%.

Had the trial court properly derived the basic child

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