J.F. v. R.J., 2090544.

• Decision Date: 22 October 2010
• Docket Number: 2090544.
• Citation: 59 So.3d 719
• Parties: J.F.v.R.J.
• Court: Alabama Court of Civil Appeals

59 So.3d 719

J.F.

v.R.J.

2090544.

Court of Civil Appeals of Alabama.

Oct. 22, 2010.

William T. Fortune, Jr., Birmingham, for appellant.John M. Wood, Birmingham, for appellee.BRYAN, Judge.

J.F. (“the father”) appeals from a judgment of the Jefferson Family Court (“the trial court”) that found him in contempt for failure to pay child support and ordered him to pay postminority educational support.¹

Procedural History

The procedural history of this case dates back to October 3, 1989, when the trial court established the paternity of the father and ordered him to pay $170 a month in child support to R.J. (“the mother”) for the benefit of the parties' child (“the child”), who was on born December 15, 1988. The father's child-support obligation was increased in October 1993 and again in January 1994. On June 14, 2000, the trial court entered an order finding that the father owed a child-support arrearage in the amount of $8,028.²

The mother initiated the proceedings that led to this appeal on July 17, 2006, by filing a petition for a rule nisi and a petition to modify the father's child-support obligation. In her petition, the mother alleged that the father had failed to pay the child-support arrearage that was determined by the June 2000 judgment and that the father had failed to pay an attorney's fee award in the amount of $1,000 that he had been ordered to pay on April 20, 2000. The mother requested a finding of contempt, a determination as to the father's obligation to pay a portion of the child's postminority educational expenses, and an award of her attorney's fees. The father answered the mother's petition on August 8, 2006, and denied every allegation in the mother's petition.

The record contains an order entered on August 27, 2007, that modified the father's child-support obligation to $314.70 a month. The record indicates that, after several continuances, the trial court conducted a hearing on December 1, 2008, and that the father was not present for that hearing. On January 12, 2009, the trial court purported to enter a final judgment; however, the judgment failed to rule on the mother's request to hold the father in contempt, thus rendering the judgment nonfinal. See Faulk v. Berry, 984 So.2d 426, 427 (Ala.Civ.App.2007) (when a purported final judgment did not completely adjudicate the matters in controversy between the parties, including a motion for contempt, the judgment appealed from was nonfinal and the appeal was due to be dismissed).

After the trial court purported to grant the father's postjudgment motion to set aside the January 2009 judgment, see Hood v. Hood, 23 So.3d 1160, 1162 n. 3 (Ala.Civ.App.2009) (noting that a postjudgment motion may only be taken from a final judgment), the trial court conducted a final hearing on August 11, 2009. The trial court entered a judgment on December 23, 2009, that stated:

“1. The [father] is in contempt of this Court's order and is in arrears for past due child support the sum of Ten Thousand Eight Hundred Forty Seven Dollars and Sixty-seven Cents ($10,847.67).

“2. The [father] shall pay to the [mother] the sum of two thousand dollars ($2000) within thirty (30) days; two thousand dollars ($2000) within ninety (90) days; two thousand dollars ($2000) within one hundred eighty days (180); two thousand dollars ($2000) within two hundred seventy days (270); and the remainder within three hundred and sixty five (365) days of this Court's Order.

“3. That the [father] is hereby ordered to pay one-half ( 1/2) of all college expenses including books, tuition, room, board and fees. That the [mother] shall submit to the [father] in writing any expenses incurred for said child within thirty (30) days of receipt and [father] will reimburse the [mother] for said expenses within fifteen (15) days thereafter.

“4. That the [father] owes the [mother] the sum of Nineteen Thousand Four Hundred Twenty Seven Dollars and [Fifty]-eight Cents ($19,427.58). This sum represents the [father]'s share of one-half ( 1/2) of college expenses previously paid by the [mother] through October 2, 2009. That [the father] shall pay said sum to the [mother] within ninety (90) days of this Court's Order.

“5. The [the m]other and [the f]ather shall be equally responsible for any non-covered medical expenses, including but not limited to, all doctor, hospital, prescription drug, dental, orthodontic, oral surgery, optical care, mental care professionals (counselor, psychiatrists), and the like, as well as any amounts that are in excess of said insurance coverage (including deductibles and co-pays) as long as child support or post-minority support is payable. If the [m]other incurs any medical expenses for said child, she will provide the [f]ather with documentation for the medical expenses incurred within sixty (60) days of receipt and he will reimburse the [m]other for said expenses within thirty (30) days thereafter. That the [f]ather currently owes to the [m]other the sum of Four Thousand Nine Hundred Eighty Four Dollars and One Cent ($4984.01) and shall pay this amount directly to the [m]other within 30 days of this Court's Order.

“6. That the [mother's] Counsel is hereby awarded attorney fees in the sum of five thousand dollars ($5000).... Said amount is due within 45 days of this Court's Order.”

After the father's postjudgment motion was denied by operation of law, see Rule 1(b), Ala. R. Juv. P., the father filed a timely notice of appeal.

Facts

At the final hearing, the mother submitted a payment summary into evidence that indicated that the father's child-support arrearage totaled $15,276.81. According to the father, that arrearage amount was incorrect because it did not include the child-support payments he had been making since August 2007. The parties agreed that the father was due a credit in the amount of $4,500 for child-support payments he had made since August 2007.

It was undisputed that the mother's petition for postminority educational support was filed before the child turned 19. According to the mother, at the time of the August 2009 hearing, the child was attending the University of Alabama at Birmingham (“UAB”) and her grade-point average was 3.52. The record does not clearly indicate the date that the child graduated from high school or the date that she began college, but the mother submitted an exhibit into evidence that summarized the child's college-tuition and book expenses from fall 2006 through fall 2009 and totaled $19,427.58. The mother did not present any evidence of the child's room-and-board expenses, other than a $250 expense for a meal plan for the child's fall 2007 semester of college. The mother stated that the child had qualified for some grants but that the child had also obtained student loans to finance her college education.

The father, who was 64 years old at the time of the final hearing, testified that he was employed in the maintenance department at Lakeland Community Hospital and that he had been working there for nine years. The father testified that he earned approximately $2,648 a month. The father stated that he had a history of health problems and that he paid approximately $8,000 a year in medical expenses not covered by health insurance. The father testified that he did not own his own home but that he was “supposedly” renting a home owned by his sister. However, there is no indication in the record of the father's housing expenses. The father stated that his regular expenses included a power bill, which was approximately $140 a month; a water bill, which was approximately $28 a month; $30 a week for gas; and $158 every six months for home insurance. The father testified that, based on his income and expenses, he was unable to assist the child with her college expenses.

The mother testified that the father had the child removed from his health-insurance plan on December 31, 2007. The mother presented evidence indicating that she had incurred $4,436.50 in health-care expenses for the child from January 2008 through August 2009. The father admitted that he had removed the child from his health-insurance plan after the child turned 19 in December 2007. The father stated that the mother had never notified him of the child's health-care expenses.

Issues

On appeal, the father raises several issues for review by this court, which can be summarized as follows: (1) whether the trial court erred by ordering the father to pay postminority educational expenses that had already been incurred; (2) whether the trial court exceeded its discretion by ordering the father to pay prospective postminority educational expenses for the child; (3) whether the trial court erred by ordering the father to reimburse the mother for the child's health-care expenses; (4) whether the trial court exceeded its discretion by finding the father in contempt and determining the father's child-support arrearage amount; and (5) whether the trial court exceeded its discretion by ordering the father to pay the mother's attorney's fees.

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).

Discussion

I. Payment of Retrospective Postminority Educational Expenses

The father argues that the trial court erred by ordering him to reimburse the mother for postminority educational expenses that were incurred by the child from fall 2006 through the child's 2009 fall semester of college. Specifically, the father argues that the mother's evidence of the child's...