Faellaci v. Faellaci

• Citation: 98 So.3d 521
• Decision Date: 15 June 2012
• Docket Number: 2100752.
• Parties: Julia W. FAELLACI v. Jared S. FAELLACI.
• Court: Alabama Court of Civil Appeals

98 So.3d 521

Julia W. FAELLACI

v.Jared S. FAELLACI.

2100752.

Court of Civil Appeals of Alabama.

May 4, 2012.

Certiorari Denied June 15, 2012

Alabama Supreme Court 1111041.

Bryant F. Williams, Jr., Ozark, for appellant.

Matthew C. Lamere, Dothan, for appellee.

On Application for Rehearing

BRYAN, Judge.

The opinion of February 3, 2012, is withdrawn, and the following is substituted therefor.

Julia W. Faellaci appeals from a judgment entered by the Houston Circuit Court.

Background and Procedural History

This is the second time these parties have appeared before this court. See Faellaci v. Faellaci, 67 So.3d 923 (Ala.Civ.App.2011). We set forth the pertinent background and procedural history of this case in Faellaci, which we quote below, and we use the terms defined therein as defined terms in this opinion.:

“Julia W. Faellaci (‘the wife’) and Jared S. Faellaci (‘the husband’) were married on July 22, 1995, and three children were born during the parties marriage: a boy, born in May 2000; and two girls, one born in September 2002 and the second born in April 2004 (collectively referred to hereinafter as ‘the children’). On May 8, 2006, the Houston Circuit Court (‘the trial court’) entered a judgment of legal separation that incorporated a separation agreement that had been signed by the parties on or about April 10, 2006 (‘the separation agreement’). Pursuant to the separation agreement, the wife exercised sole custody of the children, subject to the husband's visitation rights that were set forth in the separation agreement. The separation agreement also contained the following provision regarding the husband's child-support obligation:

“ ‘The parties agree that the [h]usband's income exceeds the Alabama Child Support Guidelines, and the [h]usband agrees to promptly pay child support for the minor children of the parties in the sum of $5,000.00 monthly. [The h]usband further agrees as additional child support, to pay 50% of the net after tax income of any commission or bonus in excess of his base salary and will supply the necessary W–2's or 1099's at the end of each year as proof of compliance with this provision.’

“On February 28, 2008, the husband filed a petition to set aside the separation agreement and a complaint for a divorce. The wife filed a motion to dismiss the husband's petition to set aside the separation agreement, an answer to the husband's complaint for a divorce, and a petition for a rule nisi alleging that the husband had failed to fully comply with the terms of the separation agreement regarding his child-support obligation. The husband subsequently filed a motion to convert his petition to set aside the separation agreement to a petition for modification of the separation agreement. The husband alleged that a material change of circumstances existed to support modification of the separation agreement regarding child support, custody, and visitation. The husband requested joint custody of the children, expanded visitation rights, calculation of his child-support obligation pursuant to Rule 32, Ala. R. Jud. Admin., and a dissolution of the marriage.

“Following a joint motion filed by the parties, the trial court entered a judgment[, on November 25, 2008,] divorcing the parties and reserving jurisdiction to enter a final judgment resolving the issues that remained pending before the trial court. The trial court further ordered that the judgment of legal separation and the provisions of the separation agreement remained valid until a final judgment was entered.

“Following an ore tenus hearing, the trial court entered a judgment on November 10, 2009, that awarded the parties joint legal custody of the children, awarded the wife primary physical custody of the children, and awarded the husband specific visitation rights. The trial court further ordered the husband to pay child support in the amount of $4,000 a month, and it ordered the husband to pay the wife his child-support arrearage, which was determined to be $100,000. Pursuant to the trial court's judgment, all other provisions of the separation agreement remained in ‘full force and effect.’

“The wife filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., alleging, among other things, that the trial court had exceeded its discretion by failing to award her interest on the husband's child-support arrearage. The trial court conducted a hearing on the wife's postjudgment motion on January 5, 2010. On January 6, 2010, the trial court entered an order that stated: ‘After hearing, [the wife]'s motion for a new trial is denied, except interest calculations and the two issues [regarding visitation] upon which the parties have agreed. Attorneys shall submit [an] amended decree within 14 days.’ The husband subsequently filed a ‘response to request for interest on arrearage,’ arguing that the he does not owe interest on his child-support arrearage because, based on the child-support language in the separation agreement, there was no ascertainable due date for his child-support obligation. The trial court conducted a hearing on the husband's motion on February 25, 2010, but the record does not contain any further orders entered by the trial court. The wife filed a notice of appeal on April 16, 2010.”

67 So.3d at 923–25 (footnote omitted).

We dismissed the wife's appeal as having been taken from a nonfinal judgment because the trial court's postjudgment order “left something more for the trial court to do, i.e., to enter an order making a determination of the amount of interest owed by the husband [on his child-support arrearage] and setting forth the husband's modified visitation rights as agreed upon by the parties.” Id. at 926.

After this court issued a certificate of judgment in Faellaci, the trial court conducted a hearing on April 19, 2011, and entered a judgment on May 3, 2011, that adopted the parties' agreement regarding visitation issues and that held that the husband was to pay the wife $100,000 within 120 days to “clear up and any all claims of unpaid child support.” The trial court further held that no interest should be awarded on the child-support arrearage because the child-support provision in the separation agreement was “so ambiguous ... that the [c]ourt cannot determine a date for the accrual of interest on the child-support arrearage.” All other relief requested by the parties was denied, and the wife filed a timely notice of appeal.

Issues

The wife raises five issues for this court's review on appeal: (1) whether there was insufficient evidence to support a change in legal custody of the children; (2) whether there was insufficient evidence to support a modification of the husband's child-support obligation; (3) whether there was insufficient evidence to support the trial court's determination as to the husband's child-support arrearage; (4) whether the trial court erred by failing to award the wife interest on the child-support arrearage; and (5) whether the trial court considered inadmissible evidence relating to a mediation agreement when rendering its judgment.

Facts

The trial court conducted an ore tenus proceeding over two days; the first hearing was held in August 2009 and the second hearing was held in October 2009. During the August 2009 hearing, the wife stated that she did not want the husband to have joint legal custody of the children because the husband had “given her sole custody” in the separation agreement and she did not see any reason why that custodial arrangement should change. The husband stated that he wanted joint legal custody of the children so that he would not be in a “vacuum” without a voice when it came to making decisions concerning the children.

The record indicates that the wife had unilaterally decided to withdraw the parties' oldest child from private school and to begin homeschooling the child because she thought he was struggling in school. However, the record indicates that the child had received As and Bs in his first-and second-grade years in school before the wife began homeschooling him. According to the wife, she had informed the husband of her decision, but the husband testified that he was not given an opportunity to provide input. The husband testified that he had asked the wife dozens of times who the children's doctors were and that the wife had not responded to his requests for that information until approximately one month before trial. The wife denied that the husband had repeatedly asked her who the children's doctors were, and she testified that she had responded to the husband's first request for that information via a text message. The record also indicates that the wife had taken one of the children to the hospital to have tests done after the child exhibited unusual behavior and that she had not informed the husband that she had taken the child to the hospital to have the tests performed. According to the husband, the wife never shared medical information regarding the children with him, and, he said, he found out that one of the children had been in the hospital from the children.

The wife stated that she does not allow the husband to e-mail her and that she only occasionally answers his telephone calls. The husband stated that the wife turns off her home telephone, that she rarely answers her cellular telephone, that her voicemail is always full so that he cannot leave messages, and that they only way he can communicate with the wife is through text messaging. The wife presentedevidence indicating that the husband is difficult to communicate with and that he had bombarded her with e-mails before she stopped using the e-mail account to which the husband had access.

The wife testified that, after the parties went to mediation, the husband thought that he had joint legal custody of the children. One of the parties' children was subsequently admitted to the hospital for a tonsillectomy, and, the wife asserted, at the hospital the husband had ...