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Written by: Caleb Faulkner
Editor in Chief, American Journal of Trial Advocacy
On June 1, 2018, an amendment was added to Rule 32 of the Alabama Rules of Judicial Administration, pertaining to the obligated payments of child support.[1] The added amendment became subdivision (9) (hereinafter “amendment”) of Rule 32’s definitions section, which is structured as subsection (B) of Rule 32.[2] The former subdivision (9), “Split Custody,” is now subdivision (10) of the definition section of Rule 32.[3] Subsection (i) of the amendment states that third-party payments, received by a child due to the actions or benefits of the parent responsible for child support payments, can be deducted from the amount owed by the obligor, while subsection (ii) lists payments that are not eligible for such deductions.[4] The eligible payments are to be subtracted from what the parent owes for child support, but third-party payments in excess of the amount of child support will not be reimbursed or treated as a credit or prepayment.[5] Third-party payments that will not apply to child support owed by a parent include:
(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.[6]
In regard to subdivision (6), the Code of Alabama, § 26-10-20 et seq., is referred to “as the Alabama Subsidized Adoption Act.”[7] In short, adoption subsidies assist adoptive parents who adopt special-needs children, so such financial assistance would not be deducted from child support owed.[8] A key determining factor in determining whether or not a third-party payment may be deducted from child support owed is whether the payment is considered a substitute for income or rather a supplement to income.[9]
Alabama Cases Aligning with Subdivision (i) of the Amendment
While the eligibility for such payments to be applicable towards child support payments had not been codified until the amendment, recent Alabama cases have been consistent with subdivision (i) of the Amendment.[10] In Goldman, the Court noted that “[although] disability benefits are precluded from consideration as income for the purpose of calculating alimony . . . the same is not true for the calculation of child support.”[11] Moreover, in Self, the Court ruled that a parent’s Social Security benefits, when received by a child, should be subtracted from the amount of child support owed by the parent for which the benefits were received.[12] Further, the Court in Adams recognized that a parent’s retirement benefits, received by a child due to the parent’s years of work, should apply towards child support owed by that particular parent.[13]
Alabama Cases Aligning with Subdivision (ii) of the Amendment
Further, the payments that will not be deducted from child support owed, now codified as (ii) of the amendment, are also consistent with recent Alabama cases. In Hebert, the Court held that disability benefits received by the child, from the benefit of his step-father, should not apply to support owed by the father, as the benefits received by the child were not attributable to the father or his actions.[14] In Lightel, the Court ruled that Supplemental Security Income (SSI) payable to a child, due to the child’s mental disability, should not be subtracted from what a parent owes for child support because the benefits were due to the child’s condition and not derived from the parent responsible for providing support.[15] Additionally, the Court has further recognized that an adoption subsidy would not count toward child support owed.[16] In doing so, the Court cited Lightel, distinguishing between “substitute income source[s]” and “supplement[s] to income.”[17] The Court noted that “the question [of] whether the adoption subsidy in the present case should offset the father’s child-support obligation is resolved by determining whether the subsidy constitutes a substitute for an income source or whether it is intended as a supplement to income,” as substitutes may be deducted from child support owed, while supplements may not. [18] For instance, “SSI [Supplemental Security Income] benefits are a supplement to income, not a substitute for it.”[19] As shown, “SSI benefits” are considered a supplement to income because “the purpose of SSI benefits is to ‘assure recipients’ income is maintained at a level viewed by Congress as the minimum necessary for the subsistence of that individual.”[20] Therefore, as illustrated above, SSI benefits are not deductible from child support owed to a child by an obligated parent.[21] On the contrary, “social security payments should [be deducted from child support owed by a parent] because often social security substitutes for lost income.”[22] Because social security benefits often replaces income, such benefits are known as “substitutes for income.”[23] However, even if the obligated parent is not fully retired and still earning an income, social security benefits can still be deducted from child support owed.[24]
Conclusion
While Alabama courts have long ruled in accordance with the recent amendment,[25] it is yet to be seen what, if any, effect the new codification will have on child support judgments in the immediate future.
[1] Kathryn Rickmeyer, New Changes in Alabama Child Support Changes, WAFF (June 19, 2018, 2:48 PM), http://www.waff.com/story/38450527/new-changes-in-alabama-child-support-calculations (citingRule 32, A.R.J.A. (2018) (Comment to Amendments Effective June 1, 2018)).
[2] Rule 32, A.R.J.A. (2018) (Comment to Amendments Effective June 1, 2018).
[3] Id. (citing Rule 32(B)(10), A.R.J.A. (2018)).
[4] Rule 32(B)(9), A.R.J.A. (2018).
[5] Rickmeyer, supra note 1; Rule 32(B)(9)(ii)(3) (2018).
[6] Rule 32(B)(9)(ii), A.R.J.A. (2018).
[7] Ala. Code § 26-10-20 (1979).
[8] Rule 32(B)(9)(ii), A.R.J.A. (2018); Ala. Code § 26-10-21(1979).
[9] Lightel v. Myers, 791 So. 2d 955, 960 (Ala. Civ. App. 1990); see also Rick Fernambucq & Gary Pate, Family Law in Alabama: Practice and Procedure § 10.13 Matthew Bender, 2017 Ed. (“In Alabama, a parent’s child support obligation may be offset by payments by a third-party source where those payments constitute a substitute income source. (citing Self v. Self, 685 So. 2d 732, 732 (Ala. Civ. App. 1996)).
[10] Rule 32, A.R.J.A. (2018) (Comment to Amendments Effective June 1, 2018); see also Rickmeyer, supra note 1 (“Before this amendment, many attorneys and judges took into account these payments when calculating child support, as it was consistent with the case law in Alabama– it just wasn’t set out specifically in Rule 32, A.R.J.A.”).
[11] Rule 32, A.R.J.A. (2018) (Comment to Amendments Effective June 1, 2018) (citing Goldman v. Goldman, 197 So. 3d 487, 493 (Ala. Civ. App. 2015)).
[12] Rule 32, A.R.J.A. (2018) (Comment to Amendments Effective June 1, 2018) (citing Self, 685 So. 2d at 735).
[13] Rule 32, A.R.J.A. (2018) (Comment to Amendments Effective June 1, 2018) (citing Adams v. Adams, 107 So. 3d 194, 202 (Ala. Civ. App. 2012)).
[14] Rule 32, A.R.J.A. (2018) (Comment to Amendments Effective June 1, 2018) (citing Hebert v. Stephenson, 574 So. 2d 835, 837 (Ala. Civ. App. 1990)).
[15] Rule 32, A.R.J.A. (2018) (Comment to Amendments Effective June 1, 2018) (citing Lightel, 791 So. 2d at 960).
[16] Rule 32, A.R.J.A. (2018) (Comment to Amendments Effective June 1, 2018) (citing W.R. v. C.R., 75 So. 3d 159, 169 (Ala. Civ. App. 2011)).
[17] W.R., 75 So. 3d at 167 (citing Lightel, 791 So. 2d at 960).
[18] W.R., 75 So. 3d at 167 (emphasis in original).
[19] Lightel, 791 So. 2d at 960.
[20] Lightel, 791 So. 2d at 959 (quoting In re Marriage of Benson, 495 N.W.2d 777, 781 (Iowa App. 1992).
[21] Id.
[22] Adams, 107 So. 3d at 202 (quoting Childerson v. Hess, 555 N.E.2d 1070, 1073, (Ill. App. Ct. 1990) (emphasis in original)).
[23] Adams, 107 So. 3d at 202.
[24] Adams, 107 So. 3d at 202.
[25] Rule 32, A.R.J.A. (2018) (Comment to Amendments Effective June 1, 2018).
American Journal of Trial Advocacy 
