Green v. Green, 2160986

• Decision Date: 18 May 2018
• Docket Number: 2160986
• Citation: 264 So.3d 898
• Parties: Connie Joe GREEN v. Stephen Kerry GREEN
• Court: Alabama Court of Civil Appeals

264 So.3d 898

Connie Joe GREEN

v.Stephen Kerry GREEN

2160986

Court of Civil Appeals of Alabama.

May 18, 2018

Jim Pino of Jim Pino & Associates, PC., Pelham, for appellant.

Submitted on appellant's brief only.

PER CURIAM.

Connie Joe Green ("the mother") and Stephen Kerry Green ("the father") are the divorced parents of a son ("the child") who was born in September 2007. In the parties' 2009 divorce judgment, the Jefferson Circuit Court, Bessemer Division, incorporated an agreement of the parties and awarded the "care, custody, and control" of the child to the mother. It awarded the father visitation and ordered him to pay certain expenses "in lieu of paying child support." The agreement provided that the parties could not have overnight guests of the opposite sex during custodial periods.

The record contains an October 4, 2016, modification judgment that includes a determination that the father had accrued a $1,000 "child-support arrearage," which apparently resulted from the father's failure to pay certain expenses he had been ordered to pay in lieu of child support, and ordered the father to begin paying the mother $361 per month in child support. The modification judgment did not modify the child's custody and left "all other provisions of the divorce judgment in full force and effect," with the exception of one provision that is not relevant to this appeal.

On November 17, 2016, the father initiated another modification action. The father complained that the mother had notified him that, in violation of the terms of the divorce judgment, she and the child were moving in with a man. The father requested an award of "primary" physical custody of the child. The mother filed an answer in which she asserted, among other things, that she was not violating the terms of the divorce judgment because, she argued, she was in a common-law marriage relationship with the man. The father filed an amended complaint seeking an emergency hearing, in which he asserted that the mother and the child had moved into the man's house, that the mother had enrolled the child in a new school, and that the child did not have his own bedroom. The circuit court entered orders setting a hearing and ordering the mother to bring the child to the hearing.

The circuit court entered a modification judgment on May 12, 2017, finding the mother in contempt based upon its determination that she and the man were living together "under the pretense of a common-law marriage." Regardless, the circuit court concluded that the mother and the father would "continue to share joint custody" of the child¹ and included a detailed custody and visitation schedule, which provides that the child will live with the mother during the school year, subject to the father's right to visitation on odd weekends each month, and that the child will live with the father 8 of 10 weeks during the summer. The circuit court also provided a relatively equal holiday-visitation schedule.² The circuit court did not require either party to pay child support and set out in writing that it had intentionally deviated from the Rule 32, Ala. R. Jud. Admin., child-support guidelines because the mother and the father were to "jointly share custody and expenses." The judgment allows each parent to claim the child as a dependent on his or her income-tax return every other year.

The mother filed a timely postjudgment motion, which the circuit court denied. The mother filed a timely notice of appeal, seeking our review of whether the circuit court had erred by not ordering the father to pay child support, by allowing the father to claim the child as a dependent for income-tax purposes every other year, and by limiting the mother to a two-week custodial period in the summers. Notably, the mother expressly waives any issue on appeal regarding the award of joint custody of the child. The mother's appellate brief reads:

"The Order contains a factual error as it incorrectly implies that the parties shared joint custody of [the child] prior to the entry of the Order when, in fact, the Mother had sole custody of [the child]. Be that as it may, the Mother does not appeal the award of joint custody."

A court reporter was not present at the modification hearing, and, thus, there is no transcript of that hearing. Rule 10(d), Ala. R. App. P., states, in pertinent part: "If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection." The mother prepared a statement of the evidence. Although the father did not file an objection or any proposed amendments to the mother's statement of the evidence, as permitted by Rule 10(d), the circuit court issued its own statement of the evidence, which is included in the record on appeal. See Rule 10(d) ("The statement, either as approved by the court or as issued by the court ..., shall be filed with the clerk of the trial court, who shall include it in the record on appeal."). The mother filed in this court a motion to strike the circuit court's statement of the evidence, which we denied.

The circuit court's statement of the evidence consists of five brief paragraphs.³ The first paragraph provides that the mother failed to demonstrate the existence of a common-law marriage, which is not an issue on appeal. The second paragraph reads:

"This Court agrees that neither Party timely submitted [child-support] forms; however, the [father] filed a CS–41 form on April 24, 2017, after trial, which the Court did not consider. This Court agrees [that the father] resides in his parents' home. Evidence was not presented to the Court with respect to payment of [the father's] bills."

The third paragraph provides that a certain witness's testimony was not relevant to the issue of child support. The fourth paragraph indicates that the child testified in camera. The final paragraph provides a short summary of evidence presented regarding a gun collection, which is not a subject of this appeal. Our review of the issues presented is limited by the brevity of the statement of evidence.

First, the mother argues that the circuit court abused its discretion by not ordering the father to pay child support. Matters related to child support, including modifications of a child-support order, rest soundly within the trial court's discretion and will not be disturbed on appeal, absent a showing that the ruling is unsupported by the evidence and thus is plainly and palpably wrong. Berryhill v. Reeves, 705 So.2d 505, 507 (Ala. Civ. App. 1997).

" ‘ "Compliance with Rule 32(E)[, Ala. R. Jud. Admin., requiring the filing of certain child-support forms,] is mandatory, even though the trial court may find that the application of the [child-support] guidelines would be unjust or inequitable." ’ " DeYoung v. DeYoung, 853 So.2d 967, 970 (Ala. Civ. App. 2002) (quoting M.S.H. v. C.A.H., 829 So.2d 164, 169 (Ala. Civ. App. 2002), quoting in turn Thomas v. Norman, 766 So.2d 857, 859 (Ala. Civ. App. 2000) ). "Rule 32(A)(1)(a), Ala. R. Jud. Admin., provides that a trial court may, in its discretion, deviate from the child-support guidelines under certain circumstances. Shared physical custody is a recognized basis for such a deviation." Shewbart v. Shewbart, 19 So.3d 223, 230–31 (Ala. Civ. App. 2009). Pursuant to Rule 32(A)(1)(a), a trial court has the discretion, in a case in which joint physical custody is awarded, to not award child support based on the particular circumstances of the case. See, e.g., Bonner v. Bonner, 170 So.3d 697, 701, 705 (Ala. Civ. App. 2015) (affirming a judgment that did not award child support when the parties were to exercise equal custodial periods with the child). However, even when a trial court states its reasons for deviating from the child-support guidelines, the decision to deviate is still subject to review to determine whether the deviation is justified by the particular circumstances of that case. See, e.g., State ex rel. O'Neal v. Jones, 646 So.2d 150, 151 (Ala. Civ. App. 1994) (reversing trial court's judgment deviating from the child-support guidelines due to the court's providing an insufficient reason for the deviation). We " ‘cannot affirm a child-support order if [we have] to guess at what facts the trial court found in order to enter the support order it entered....’ " Willis v. Willis, 45 So.3d 347, 349 (Ala. Civ. App. 2010) (quoting Mosley v. Mosley, 747 So.2d 894, 898 (Ala. Civ. App. 1999) ). In this case, pursuant to the May 12, 2017, modification judgment under review, the child lives with the mother for substantially longer periods than he lives with the father. Although a deviation from the child-support guidelines would be permissible in this case, by going so far as to not award child support in light of the particular joint-physical-custody schedule in this case, we agree with the mother that the circuit court abused its discretion. Accordingly, we reverse the circuit court's judgment insofar as it fails to require the father to pay child support. On remand the parties and the circuit court shall prepare the appropriate child-support forms in accordance with Rule 32(E), and the circuit court is instructed to comply with Rule 32 in making its child-support determination.

Second, we consider whether the circuit court abused its discretion by allowing the father to claim the child as a dependent on his income taxes every other year. "The allocation of the income tax dependency exemption rests in the sound discretion of the trial court, so long as the court states the reason for any deviation from the ‘guidelines.’ " K.T.W.P. v. D.R.W., 721 So.2d 699, 704 (Ala. Civ. App. 1998) (citing Flanagan v. Flanagan, 656 So.2d 1228, 1232 (Ala. Civ. App. 1995) ). "Although it is assumed that the custodial parent will receive the income-tax [exemption], the trial court can deviate from the Rule 32...