L.M. v. K.A.

• Decision Date: 20 February 2015
• Docket Number: 2131000.
• Citation: 177 So.3d 1174
• Parties: L.M. v. K.A.
• Court: Alabama Court of Civil Appeals

177 So.3d 1174

L.M.

v.K.A.

2131000.

Court of Civil Appeals of Alabama.

Feb. 20, 2015.

Alyssa L. Enzor of Enzor & Maniscalco, LLP, Oxford, for appellant.

Tina E. Roberts, Anniston, for appellee.

THOMAS, Judge.

L.M. ("the mother") appeals from a judgment of the Calhoun Circuit Court ("the trial court") in favor of K.A. ("the father"). The record reveals the following pertinent facts. The parties are the parents of Ke.A. ("the child"), a child born on December 17, 2007, in Calhoun County. The parties were never married; however, they lived together in Calhoun County after the child was born until approximately May 2008. The mother and the child remained in Calhoun County until June or July 2009; the mother and the child then moved to Kentucky to live with the child's maternal grandparents ("the grandparents") and have subsequently moved with the grandparents several times.¹

As a result of a petition that the mother filed in the trial court in April 2009, the trial court entered a judgment on July 28, 2009, ordering the father to pay the mother $495 in monthly child support.² On March 21, 2011, the father filed a petition seeking a judgment declaring that he had overpaid child support, finding the mother in contempt, terminating his child-support obligation, and awarding him visitation. In his petition, the father alleged that he had discovered that the grandparents had been appointed as limited guardians of the child by the District Court of Christian County, Kentucky ("the Kentucky court"), on July 14, 2008, before the mother had filed her 2009 petition in the trial court seeking an award of child support.³

The trial court held a trial on October 25, 2013, at which it heard evidence ore tenus. At the trial, the grandparents' petition for and the Kentucky court's order granting the limited guardianship were entered into evidence. The grandparents' petition stated that the "parents have decided to give guardianship to [the grandparents] until they are able to care for the child." The mother entered into evidence a letter that was allegedly signed by the father, which stated that the father had consented to the limited guardianship. However, the father testified that he had had no knowledge of the grandparents' petition, that he had not consented to the limited guardianship, and that he had not signed the letter purportedly giving his consent. At the trial court's instruction, the father submitted a sample of his handwritten signature into evidence; the trial court noted from the bench that the father's signature did not appear to match the signature on the letter purporting to give his consent.

The mother testified that the maternal grandfather was an active member of the United States Army and that the purpose of the limited guardianship was, according to the mother, to allow the child to be placed on the maternal grandfather's "orders." Specifically, the limited guardianship enabled the child to receive military-dependent benefits such as health insurance, travel expenses, and attendance at the elementary school located on the military installation to which the maternal grandfather was assigned. The mother maintained that she had not relinquished custody of the child, regardless of her consent to the grandparents' limited guardianship.

On June 24, 2014, the trial court entered a judgment awarding the father visitation, terminating the father's child-support obligation,⁴ ordering the mother to repay the father the $18,315 he had paid to her as child support, allowing the father to claim the child for income-tax purposes in even-numbered years, and ordering the mother to pay $500 toward the father's attorney fees.

The mother filed a postjudgment motion on July 8, 2014; the parties filed a joint motion on July 18, 2014, agreeing to extend the time for the trial court to enter a postjudgment order by 30 days—i.e., extending the period from July 22, 2014, to August 21, 2014. See Rule 1, Ala. R. Juv. P.;⁵ see also Rule 59.1, Ala. R. Civ. P. The trial court held a hearing on August 15, 2014; however, the record does not indicate that the trial court rendered or entered a subsequent order. Therefore, the mother's postjudgment motion was denied by operation of law on August 21, 2014, pursuant to Rule 59.1, Ala. R. Civ. P. The mother filed a notice of appeal to this court on September 4, 2014.

The mother raises the following four issues in her brief on appeal: (1) whether the trial court erroneously retroactively modified child-support payments that were final judgments as of the date they were due, (2) whether the trial court erred by concluding that the grandparents' limited guardianship was equivalent to custody, (3) whether the visitation schedule established in the judgment exceeded the trial court's discretion, and (4) whether the trial court erred by ordering the mother to pay $500 toward the father's attorney fees.

The mother first argues that the trial court committed reversible error by awarding the father repayment of the child support that he had paid because, she argues, such an award amounted to a retroactive modification of child-support payments that had already matured. The mother correctly states the legal principle that

"it is well settled that child-support payments that mature or become due before the filing of a petition to modify are not modifiable. Ex parte State ex rel. Lamon, 702 So.2d 449 (Ala.1997). A child-support obligation may be modified only as to installments that accrue after the filing of a petition to modify the child-support obligation. Rule 32(A)(3)(a), Ala. R. Jud. Admin. See also Woods v. Woods, 851 So.2d [541,] 547–48 [ (Ala.Civ.App.2002) ]; Stinson v. Stinson, 729 So.2d 864 (Ala.Civ.App.1998) (affirming a judgment terminating a noncustodial parent's obligation to pay child support as of the date of the filing of the petition to modify, where the child reached the age of majority approximately 10 months before the noncustodial parent filed his petition to modify)."

Hartley v. Hartley, 42 So.3d 743, 745 (Ala.Civ.App.2009).

However, a review of the father's petition initiating this action⁶ reveals that the father was not seeking a modification of child support; rather, the father alleged that the mother had been awarded child support based upon misrepresentations she had made to the trial court. Rule 60(b), Ala. R. Civ. P., states, in part, that

"the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)[, Ala. R. Civ. P.]; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment."

We note that Rule 60(b) requires that relief sought pursuant to Rule 60(b)(1), (2), or (3) must be requested "not more than four (4) months" after the underlying judgment was entered. However, Rule 60(b) also states:

"This rule does not limit the power of the court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment (or such additional time as is given by § 6–2–3 [governing the statute of limitations in actions seeking relief on the ground of fraud] and § 6–2–8, Code of Alabama 1975 ), to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court."

The record indicates that the father's petition was filed within three years of the entry of the trial court's judgment ordering him to pay child support and that the petition was assigned a .01 designation, indicating that the father's petition initiated an independent action (see supra note 5); therefore, the father complied with Rule 60(b).

This court has previously allowed a mother exercising physical custody of a child to continue to receive child-support payments from the father despite the fact that the maternal grandparents had been granted legal custody. See Eastep v. Mitchell, 598 So.2d 987 (Ala.Civ.App.1992). In Eastep, a 1983 divorce judgment had awarded the mother in that case primary physical custody of the parties' child and ordered the father to pay child support. 598 So.2d at 987. In 1990, the mother filed a petition seeking to establish and recover a child-support arrearage. Id. The trial court held the father in contempt, calculated the child-support arrearage, and ordered the father to pay the arrearage in addition to upwardly modifying the monthly child-support obligation the father was required to pay.Id.

On appeal to this court, the father argued that, because the maternal grandparents had been awarded legal custody of the child in 1986, the trial court had erred in ordering him to pay any child support to the mother; this court noted that the father had failed to cite any legal authority in support of his argument. Id. at 988. However, this court also observed that the father had unilaterally ceased paying child support that he had been ordered to pay without a judgment permitting him to do so. Id. This court ultimately affirmed the trial court's judgment based upon the "specific fact situation," which included the father's failure to request a modification from the trial court. Id.

In the present case, it is undisputed that the mother failed to inform the trial court in her 2009 action for child support that the grandparents were the guardians of the child and that the child was receiving military-dependent benefits through the maternal grandfather as a result. Unlike the...