Rel: July 31, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2026
CL-2025-0981
Kathryn Leigh Kennedy
v.
Scott Aaron Kennedy
Appeal from Tuscaloosa Circuit Court
(DR-21-900587.01)
EDWARDS, Judge.
Kathryn Leigh Kennedy ("the mother") appeals from a judgment
entered by the Tuscaloosa Circuit Court ("the trial court") that modified
the child-support obligation of Scott Aaron Kennedy ("the father").
CL-2025-0981
Procedural Background
The father and the mother were divorced by a judgment entered by
the trial court entered on March 17, 2023; that judgment was amended
on May 23, 2023, when the trial court adopted the terms of an amended
property-settlement agreement entered between the parties.1 On
January 2, 2024, the father filed a petition in the trial court, which he
later amended on April 19, 2024. In his petition, as amended, the father
sought to hold the mother in contempt of court for allegedly violating a
provision of the parties' divorce judgment that prohibited either party
from having an overnight guest of the opposite sex not related by blood
or marriage and with whom he or she had a romantic relationship when
the parties' children were present. The father also sought a modification
of certain provisions of the parties' amended divorce judgment, including
a modification of the award of joint physical custody of their two children,
T.W.K. and C.R.K., whose dates of birth are February 5, 2015, and March
21, 2012, respectively, and a modification of his child-support obligation.
1The record on appeal does not contain copies of the parties' March
17, 2023, divorce judgment, the parties amended property-settlement
agreement, or the May 23, 2023, amended divorce judgment that adopted
the terms of the amended property-settlement agreement.
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Lastly, the father requested that the trial court terminate his continuing
obligation to contribute to the children's 529 plan investment accounts
each year and that the trial court terminate his obligation to purchase
vehicles for the children.
On January 25, 2024, the mother filed an answer to the father's
petition, and the mother filed a counterclaim seeking to hold the father
in contempt of court for his alleged violation of a provision of the divorce
judgment that prohibited each party from making disparaging remarks
about the other parent to or in the presence of the children. The mother's
counterclaim also sought a modification of the physical custody of the
children.
A trial was conducted on July 21, 2025, and, on July 24, 2025, the
trial court entered a judgment that, in pertinent part, denied both
parties' requests to modify the children's physical custody; denied both
parties' requests to hold the other parent in contempt of court; reduced
the father's monthly child-support obligation to $549; and denied all
other relief the parties requested.
On August 22, 2025, the mother filed a postjudgment motion to
alter, amend, or vacate the July 24, 2025, judgment or, alternatively, to
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CL-2025-0981
grant a new trial. The father did not seek postjudgment relief. Following
a hearing, the trial court, on October 2, 2025, entered an amended
judgment that increased the father's child-support obligation to $823 per
month. All other requested relief was denied. The mother appealed.
The Evidence
April Gray testified that she was employed by Sokol Park
Chiropractic ("Sokol"), which, she said, was solely owned by the father;
she was responsible for filing insurance claims and for patient billing.
Gray began working in the insurance-billing field in 2014 with a previous
employer who also provided chiropractic services. Within the three years
preceding the trial, she said that she had observed changes in insurance
coverage for chiropractic services that had resulted in higher deductibles
and higher copays for patients. According to Gray, the change in
insurance coverage had also resulted in a loss of patient revenues
because, Gray said, some patients were unable to afford the higher outof-pocket costs. According to Gray, two chiropractors who Sokol
employed had also experienced revenue losses attributable to the
changes in insurance coverage. Gray said that Sokol had also
experienced a change in staffing resulting from a physical therapist and
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CL-2025-0981
a massage therapist leaving the practice, which, she said, had caused a
decrease in the services Sokol offered and a reduction in revenue.
Gray confirmed that the father had total control of Sokol, had total
control of his work calendar, and had total control of Sokol's finances.
Sokol maintained full-day business hours Monday through Thursday.
On Fridays and Saturdays, Sokol was open from 8:00 a.m. until 12:00
p.m., which, Gray said, had been the father's administrative decision.
Don Wood, a certified public accountant, testified that he had
prepared the father's individual income-tax returns for approximately 23
years. Wood said that, because Sokol is a single-member limited-liability
company, Sokol's taxes are included on the father's individual income-tax
return and do not require Sokol to file a separate return. According to
Wood, Sokol's gross receipts had been declining year-over-year. For the
2021 tax year, Sokol's gross receipts totaled $1,110,409. For the 2022 tax
year, Sokol's gross receipts were $1,020,614. For the 2023 tax year,
Sokol's gross receipts totaled $955,357. For the 2024 tax year, Sokol's
gross receipts had fallen further to $866,017.
In terms of net pay, in the 2021 tax year, the father earned
$291,046; in the 2022 tax year, the father earned $172,480; in the 2023
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CL-2025-0981
tax year, the father earned $172,204; and in the 2024 tax year, the father
earned $127,937. Wood attributed Sokol's declining gross receipts and
the father's decline in pay to changes in the insurance industry
pertaining to reimbursements and to increased operating costs, which,
Wood said, was a byproduct of inflation. Wood testified that he had
observed similar declining gross receipts, which he also attributed to
insurance-reimbursement changes, for 8 to 10 other physicians for whom
he prepared income-tax returns. Wood opined that, for the 2024 tax year,
the father's monthly gross income was $11,619.
The father testified that, in 2019, he left his employment with Agee
Chiropractic and that, in February of that year, he opened Sokol. The
father said that his income had been steadily declining in the recent years
preceding the trial, which he attributed to the combined effect of
insurance-reimbursement changes, increased overhead costs, as well as
Sokol's loss of a physical therapist and a massage therapist and the
additional revenue that they had generated. The father confirmed that
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CL-2025-0981
Sokol employed a second chiropractor and that the father received a
percentage of the revenue that chiropractor generated.2
The father, who was 51 years old at the time of the trial, said that,
in the 2 years preceding the trial, he had experienced health issues. Dr.
Loren James, an orthopedic surgeon, diagnosed the father with bilateral
carpal tunnel syndrome and compartment syndrome of the elbow. Dr.
James had recommended that the father undergo surgery to address
those issues, but the father had not had that surgery at the time of the
trial. Additionally, in 2023, the father underwent surgery to repair
bilateral inguinal hernias, which had prevented the father from working
for a couple of weeks. The father also suffers from plantar fasciitis and
irritable bowel syndrome, which, he said, had also affected his ability to
work. In a Child-Support-Obligation Income Statement/Affidavit
("income affidavit"), see Rule 32(E), Ala. R. Jud. Admin., that was
prepared by the father in December 2022, the father indicated that he
earned $24,770 in gross income per month. In a separate income affidavit
2The
father did not disclose what income he received from the
revenue the other chiropractor generated.
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CL-2025-0981
that was prepared for trial in the current modification case, the father
indicated that he earned $11,616 in gross income per month.3
On cross-examination, the father admitted that he had indicated in
his March 11, 2024, discovery responses that he earned approximately
$13,333 in gross income per month. He also admitted that he had
generated two personal financial statements for the Robertson Banking
Company ("RBC") -- one in October 2023 and a second in March 2024. In
the financial statement submitted to RBC in October 2023, the father
indicated that he earned $30,000 per month in gross income. In the
financial statement submitted to RBC in March 2024, which was
prepared approximately one week after he prepared his March 11, 2024,
discovery responses, the father indicated that he earned $270,000 in
gross income per year, which equates to $22,500 in monthly gross income.
The father disputed the accuracy of both personal financial statements
and said that he had made a mistake regarding his gross monthly income
on both forms.
The mother testified that she was the manager at Tuscaloosa
Pediatric Dentistry, where she was earning $26 per hour at the time of
3The income affidavit is not dated.
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CL-2025-0981
trial. An income affidavit the mother signed and offered as a trial exhibit
indicated that the mother earned $4,560 in gross income per month and
that she provided dental insurance for the children at a cost of $86 per
month. In addition to her earned income, the mother said that her
employer also provided yearly bonuses. The mother had received a bonus
in the 2024 tax year, but she could not recall whether that bonus had
been for $2,500 or $3,000. The mother conceded that she had not
included her yearly bonus in her income affidavit.
Standard of Review
" ' "When a trial court hears ore tenus evidence, its
judgment based on facts found from that evidence
will not be disturbed on appeal unless the
judgment is not supported by the evidence and is
plainly and palpably wrong. Thrasher v. Wilburn,
574 So. 2d 839, 841 (Ala. Civ. App. 1990). Further,
matters of child support are within the sound
discretion of the trial court and will not be
disturbed absent evidence of an abuse of discretion
or evidence that the judgment is plainly and
palpably wrong. Id."
" 'Spencer v. Spencer, 812 So. 2d 1284, 1286 (Ala. Civ. App.
2001). However, the trial court's application of law to facts is
reviewed de novo. See Ladden v. Ladden, 49 So. 3d 702, 712
(Ala. Civ. App. 2010).' "
Burkett v. Burkett, 367 So. 3d 409, 418 (Ala. Civ. App. 2022) (quoting
Jones v. Jones, 101 So. 3d 798, 802 (Ala. Civ. App. 2012)).
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CL-2025-0981
Discussion
On appeal, the mother first contends that the trial court erred when
it determined the father's monthly gross income for the purpose of
calculating his monthly child-support obligation. The mother specifically
argues that the trial court erred to reversal when it determined that the
father earned $11,616 in gross income per month without reconciling the
personal financial statements that he had prepared for RBC in October
2023 and March 2024, in which he indicated that he earned $30,000 per
month and $22,500 per month, respectively, and without reconciling the
father's discovery responses, in which he indicated that he earned
$13,333 per month in gross income. The mother primarily relies on
Hubbard-Hall v. Hubbard, 697 So. 2d 486 (Ala. Civ. App. 1997), and
Wright v. Wright, 19 So. 3d 901 (Ala. Civ. App. 2009), to support her
claim that, "[w]hen the record contains sworn evidence demonstrating a
parent's income from a particular source, the trial court must either
incorporate that income into the Rule 32[, Ala. R. Jud. Admin.,]
calculation or explain why it is not reflective of the party's actual income."
The mother's brief, p. 18.
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CL-2025-0981
The mother's reliance on Hubbard-Hall and Wright is, however,
misplaced because those cases do not stand for the principle for which
they are cited. Moreover, contrary to the mother's contention otherwise,
the trial court provided the basis for its decision to reject the father's
assertion in his personal financial statement to RBC that he earned
$30,000 per month. At the postjudgment hearing, when discussing its
justification for rejecting the father's personal financial statement to
RBC as accurate evidence of the father's monthly gross income, the trial
court stated:
"That's what I 'm -- and that's why I think he lied on his
bank application. If I thought that he was telling the truth on
the bank application, then I would have -- I would have
assigned him thirty thousand dollars. So the fact -- the fact
that you-all brought evidence in about his health condition,
about the con -- the state of affairs about chiropractors and all
of that led me to believe that he probably wasn't making thirty
thousand dollars, that he fudged those figures to get an
advantage at the bank; or I could have said, Hmm, I don't
know if he really fudged those figures if he's that sick, he
really has thirty thousand dollars. Those are the kind of
issues I have to wrestle with 'cause he was -- the testimony
was he was making inconsistent statements, and that's a
problem. That's a problem."
Because the mother has failed to establish that the trial court had a duty
to reconcile the father's financial statement or to reconcile his discovery
responses regarding his income, we reject the mother's contention that
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CL-2025-0981
the trial court's failure to do so constitutes reversible error. See Rule
28(a)(10), Ala. R. App. P. (requiring an appellant arguing that a trial
court has committed a reversible legal error to present the appellate court
with relevant legal authority demonstrating that error; if the appellant
fails to do so, the appellant waives the argument).
The mother next contends, albeit in different terms, that the trial
court erred when it failed to impute additional income to the father to
account for his personal expenses that Sokol paid. When determining the
income earned by a self-employed parent, Rule 32, provides, in pertinent
part:
"(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."
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CL-2025-0981
Moreover, Rule 32(B) provides that expense reimbursements or in-kind
payments a parent receives shall be included in that parent's income if
the payments are "significant and reduce personal-living expenses."
The mother primarily relies on Sutchaleo v. Sutchaleo, 228 So. 3d
475 (Ala. Civ. App. 2017), to support her contention that the trial court
erred to reversal when it failed to include in the father's gross monthly
income expense reimbursements or in-kind payments that the father
received from Sokol. In Sutchaleo, the wife appealed a judgment entered
by the Calhoun Circuit Court divorcing her and the husband. 228 So. 3d
at 477. In pertinent part, the divorce judgment awarded the wife
"placement" of a child born of the marriage and ordered the husband to
pay to the wife $500 per month as child support. On appeal, the wife
argued that the husband had used a business checking account to pay for
his cellular-telephone service, his monthly rent, his monthly bankruptcyplan payments, his gambling debts, and gifts for his girlfriend and that
those amounts should have been included in the husband's monthly gross
income. 228 So. 3d at 480. This court stated:
"The husband testified that he had paid his rent and his
Chapter 13 bankruptcy payments out of his personal account,
although, he said, he had not done that 'in the beginning.' The
husband also testified that he paid for his cellular-telephone
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CL-2025-0981
service from the business account, but, he stated, he uses that
telephone for business as well as personal reasons. The
husband testified that payments from the business account to
Coach, a retailer, on July 24, July 27, and July 30, 2015, that
totaled $400.46 had been for gifts for his then girlfriend. The
husband also testified that, in addition to the $42,621 he had
deposited from the business account into his personal bank
account, he had occasionally paid additional personal
expenses, such as gambling expenses, from the business bank
account. The husband did not recall the exact amount of those
payments, but he testified that an approximate total of $7,350
for those payments was '[p]robably right.' When asked about
an additional $9,112 cash withdrawal from the business
account, the husband stated: 'I don't know. Maybe I did play
some poker that night. I don't know.'
"The [Calhoun Circuit Court] reasonably could have
concluded that the business was not paying the husband's
rent and bankruptcy payments and that the cellulartelephone bill was a business expense rather than a personalliving expense. The trial court could not, however, have
considered the remaining expenditures, which totaled
$16,862.46, as anything other than income to the husband
because those significant payments from the business had
reduced the husband's personal-living expenses. Notably, the
husband did not prove that any of those payments had been
used for business purposes so as to be excluded from his gross
income. See Rule 32(B)(3)[, Ala. R. Jud. Admin.]"
228 So. 3d at 480. Based on the foregoing, this court reversed the divorce
judgment with regard to the child-support award and remanded the case
to the Calhoun Circuit Court for that court to recalculate the husband's
child-support obligation after first including in the husband's income the
additional expenditures that the husband's business paid. Id.
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CL-2025-0981
In the current case, the father testified to various expenses that he
had paid through Sokol's checking account with RBC. Those expenses
included $537.50 in legal fees paid to Mary Turner Law Group for legal
representation during the parties' divorce proceedings; two checks for
$1,600, each payable to Lochlear Sport Fish to purchase feed for a farm
that the father owns; $125 to Alabama Investigative Services to conduct
a background check on the mother's current boyfriend; $35,000 made
payable to himself; six checks payable to Bill McGuire, who represents
the father in the current action, totaling $8,950; and $5,095 payable to
Blacks Carts, LLC, to purchase a golf cart for the father's farm.
Additionally, the father made monthly payments to a Chase credit
card from Sokol's business account. Purchases on the Chase credit card
included a reoccurring charge of $97 for wildlife cameras; numerous
Alacourt charges for $9.99 each; and charges to OnStar, Publix,
Northport Pharmacy, Meat Depot, Instacart, Amazon Marketplace,
Cancun Bar and Grill, and Big Valley Outdoor. As in Sutchaleo, the
father in this case did not prove that any of the purchases Sokol made
had been used for business purposes so as to be excluded from his gross
income. See Rule 32(B)(3).
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CL-2025-0981
We agree with the mother that the trial court erred to reversal
when it failed to include in the father's monthly gross income the
expenditures that Sokol had paid because those payments were
significant and reduced the father's personal living expenses. See Rule
32(B)(4). We therefore reverse the trial court's judgment with regard to
its child-support award, and we remand the case to the trial court to
recalculate the father's monthly gross income by including the additional
expenditures that Sokol paid in accordance with the legal principles set
forth in this opinion.
Because we are reversing the judgment and remanding the case for
the trial court to recalculate the father's monthly gross income, we
pretermit a detailed discussion of the mother's last issue, i.e., whether
the father established a material change in circumstances sufficient to
modify his monthly child-support obligation. However, because a correct
calculation of the father's income is pertinent to the issue whether the
father has established a material change in circumstances warranting a
modification of his child-support obligation, we instruct the trial court to
reconsider this issue once it has completed the recalculation of the
father's gross income. If it concludes, based on the father's recalculated
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CL-2025-0981
gross income, that the father has demonstrated a material change in
circumstances warranting a modification of his child-support obligation,
the trial court shall then recalculate the appropriate amount of child
support in compliance with Rule 32.
Conclusion
For the foregoing reasons, we reverse the trial court's judgment to
the extent that it modified the father's monthly child-support obligation,
and we remand the case to the trial court for further proceedings
consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Moore, P.J., and Hanson, Fridy, and Bowden, JJ., concur.
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