Cunningham v. Cunningham

• Decision Date: 06 November 1985
• Parties: Thomas CUNNINGHAM III v. Sarah McLendon CUNNINGHAM. Civ. 4815.
• Court: Alabama Court of Civil Appeals

Page 1238

480 So.2d 1238

Thomas CUNNINGHAM III v. Sarah McLendon CUNNINGHAM.

Civ. 4815.

Court of Civil Appeals of Alabama.

Nov. 6, 1985.

Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellant.

B.F. Stokes III of Stokes & McAtee, Mobile, for appellee.

BRADLEY, Judge.

This is a child support and custody modification case.

The parties were divorced by decree of the Circuit Court of Mobile County on March 16, 1978. The decree provided, in pertinent part, that custody of the two minor children born of the marriage was to be jointly retained by the parties so long as they both resided in Mobile County, Alabama. In the event that either party removed his or her residence from Mobile County, custody was to revert to the remaining parent. This decree also provided that the father was to pay to the mother: "2.... the sum of Two Hundred Dollars and no/100 ($200.00) per month per child as child support for each of the two minor children." Additionally, the decree required the father to pay for the private schooling of these two children so long as they were residing in Mobile County.

Two months after the rendition of the above decree, the mother remarried and moved to Colorado with her new husband. The children remained with the father in Mobile. Subsequently, the parties entered into and jointly filed an agreement and petition to modify the judgment of divorce. The agreement provided for the vesting of custody fully in the father and explicitly set out visitation privileges for the mother and her parents. The agreement did not mention the child support award made in the 1978 divorce decree. On March 9, 1981 the court issued an order based on and in accordance with the agreement. This order made no alteration in the child support award of 1978. No further action between the parties occurred until August 1984, when the mother filed a motion for rule nisi, alleging child support arrearage in the amount of $5,600. This motion was later amended to reflect an increase in the amount of arrearage claimed, arrearage for dental expenses incurred, and to request custody of both children. The father thereafter filed a response and counterclaimed for an award of child support against the mother.

After a trial before the court, an order was rendered, dated January 28, 1985. This order awarded custody of the minor son, Jonathan Northcutt, to the mother and reaffirmed custody of the minor daughter, Catherine Dillard, in the father. The mother was also awarded a judgment in the amount of $3,600 representing child support arrearage. Additionally, this decree provided that the father was to pay to the mother $200 per month as child support for the son. There was no award of child support payable to the father for the support of the daughter. Upon motion to reconsider, the court modified its previous order to require the father to pay the $200 per month award of child support to the maternal grandparents. The father appeals from this decree.

The father's first issue on appeal is that the trial court erred in awarding the mother a $3,600 arrearage judgment. He argues that there was no existing order which mandated child support payments and, therefore, no basis for an arrearage. The mother asserts that she is entitled to these payments by virtue of the original decree of divorce which required monthly support.

The 1978 decree did require the father to pay the mother $200 a month as child support, but it also provided that should either party remove herself or himself from Mobile, Alabama full custody of the children would revert to the parent remaining in Mobile. As noted previously, shortly after the divorce the mother left Mobile, moving to Colorado, and the father became full legal custodian of the two children. The divorce decree made no provision for the payment of child support in the event that the father became the full custodian of the children as a result of the mother's moving from Mobile.

In March 1981, pursuant to the aforementioned agreement of the parties, the trial court modified the 1978 decree by vesting full custody of the two children in the father and by giving the mother certain visitation rights. Again, however, no mention was made in the agreement or the modification decree about the $200 a month child support award made to the mother in the original decree.

The father vigorously argues that he cannot be required to pay the mother child support when he has been the custodian of the children almost entirely since the 1978 divorce decree. The mother, in reply, concedes that the father has been the children's custodian and that the children, especially the daughter, have lived with the father for the period in question and that the father has supported them. There is evidence in the record that the son has spent about sixteen to eighteen months of the period in question with the mother or the maternal grandparents. The mother says, however, that the decree awarding her child support has never been changed and she is, therefore, entitled to child support for the time the son has been with her.

Granted, child support payments ordinarily become vested unless modified by petition. Further, our cases have consistently held that child support payments may not be unilaterally reduced nor automatically modified where the decree does not so provide. See, e.g., Smith v. Smith, 443 So.2d 43 (Ala.Civ.App.1983). Past-due child support payments become judgments and are thereafter unmodifiable. Andrews v. Andrews, 437 So.2d 1306 (Ala.Civ.App.1983).

In the case at bar, however, the child support provision of the divorce decree was automatically modified by the other provisions of that decree. As provided in the 1978 decree, when the mother moved to Colorado, the father became the sole custodian of the children. Also, the 1981 modification decree maintained sole custody of the children in the father and liberalized the mother's visitation rights.

A father is required by the law of this state and by basic morality to support his children even though he is not the custodian of them. Hamilton v. Hamilton, 428 So.2d 65 (Ala.Civ.App.1983). But in the case at bar the evidence shows that not only was the father supporting his children, he was their legal custodian.

In Modling v. Modling, 232 So.2d 673 (Ala.Civ.App.1970), we held that a noncustodial parent with only visitation privileges was not entitled to child support for the time the child was visiting with that parent. We conclude, therefore, that when the father became the legal custodian of his children under the terms of the 1978 decree the requirement that he pay the mother child support was effectively terminated. We also hold that once the father became the children's legal custodian the noncustodial parent was no longer entitled to child support. Consequently, we find that the trial court erred in ordering the father to pay child support arrearage in the amount of $3,600.

The next issue presented for our review deals with the trial court's order changing custody of the son from the father to the mother. The father asserts that the mother voluntarily abandoned the child, that he is the only stable factor in the child's life, and that there is no evidence which indicates that a change of custody would...