Mullins v. Sellers

• Court: Alabama Court of Civil Appeals
• Writing for the Court: BRYAN
• Citation: Mullins v. Sellers, 80 So.3d 935 (Ala. Civ. App. 2011)
• Decision Date: 02 September 2011
• Docket Number: 2100247.
• Parties: Tracy Lynn MULLINS v. Lisa Christine SELLERS.

80 So.3d 935

Tracy Lynn MULLINS

v.Lisa Christine SELLERS.

2100247.

Court of Civil Appeals of Alabama.

Sept. 2, 2011.

Cliff Kerry of Kerry & Associates, Huntsville, for appellant.

Julia Smeds Roth and Carl A. Cole III of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellee.

BRYAN, Judge.

This is the second time these parties, Tracy Lynn Mullins (“the father”) and Lisa Christine Sellers (“the mother”), have been before this court. In Mullins v. Sellers, 58 So.3d 817 (Ala.Civ.App.2010), the father appealed from a judgment of the Madison Circuit Court (“the trial court”) that found him guilty of 140 separate acts of contempt and assessed a child-support arrearage. This court reversed that judgment and “remand[ed] the cause with instructions to the trial court to clarify its judgment and address [certain] discrepancies in the judgment,” as discussed in the opinion. Id. at 822. The father now appeals from the judgment entered by the trial court on remand.

We set forth the pertinent facts and procedural history in Mullins, supra, as follows:

“The father and [the mother] were divorced by the trial court in September 1995. Two children were born of the parties' marriage, a boy born in September 1985 (‘the older child’) and a boy born in August 1990 (‘the younger child’) (hereinafter the older child and the younger child are referred to collectively as ‘the children’). Pursuant to the divorce judgment, the mother was awarded physical custody of the children and the father was ordered to pay child support. On or about May 25, 2001, the parties entered into an agreement modifying the divorce judgment so that the father was awarded custody of the older child and neither party was responsible for the payment of child support; that agreement was incorporated into a judgment of the trial court (‘the May 2001 modification judgment’). The May 2001 modification judgment included a provision that the father would not be responsible for any past or future dental expenses of the children arising from a genetic disorder that the children had.

“The divorce judgment was modified again on August 30, 2001 (‘the August 2001 modification judgment’), and, pursuant to that modification judgment, the mother was awarded custody of the older child and the father was ordered to pay $451.08 a month in child support, beginning on August 13, 2001. The father was ordered to make the child-support payments on the 15th day of each month through the clerk of the trial court. The parties were also ordered to equally share the cost of the children's ‘health care services which are not covered by insurance ... including bills for doctors, hospitals, prescription drugs, orthodontic, dental, and optometric expenses.’

“On June 13, 2008, the mother filed a petition for a rule nisi alleging that the father had failed to pay court-ordered child support from August 13, 2001, until the day she filed her petition, and she requested that the father be ordered to pay the child-support arrearage due with interest. The mother also requested an award of her attorney's fees. The father filed an answer to the mother's petition for a rule nisi, and he denied all the allegations made by the mother.

“The trial court conducted an ore tenus hearing on October 21 and 22, 2009. The mother and the father both testified that the father had paid his child-support obligation as ordered in the August 2001 modification judgment from August 2001 through May 2002. It was also undisputed that the father had not made a single child-support payment through the clerk of the trial court from June 2002 through the date of the final hearing in October 2009.

“The evidence revealed that both the older child and the younger child had lived, at times, with the father despite the fact that the mother had had physical custody of the children. According to the mother, the older child had lived with the father from June 2002 through December 2002. However, according to the father, the older child had lived with him from June 2002 through May 2004. The mother testified that the father had stopped paying child support after the older child moved into the father's home. According to the father, he and the mother had agreed in June 2002 that the father no longer had to pay child support because the older child was living with him and the younger child was living with the mother. The mother denied that the parties had reached such an agreement. The father stated that he began paying child support directly to the mother after the older child turned 19 years old in September 2004.

“Tina Mertz, the father's sister, testified that she was present when the mother and the father reached an agreement in May 2002 that the father would not owe child support to the mother because the older child was going to live with the father. The mother testified that she agreed in June 2002 that, as long as the older child was in high school and was living with the father and the younger child was living with her, she would not require the father to pay child support. The mother stated that she expected the father to resume paying child support in December 2002, after the older child graduated from high school.

“The father testified that when the older child lived with him he provided the older child's housing, utilities, cable television, food, clothing, vehicle, car insurance, gasoline, and vehicle maintenance and paid for the older child's extracurricular activities. The father stated that, even though he and the mother had reached an agreement that he did not have to pay child support while the older child was living with him, he had paid the mother child support during that time. The older child graduated from high school in December 2002, and the mother testified that she had supported the older child while he was in high school and after he graduated from high school by purchasing clothing for the older child and by giving him money.

“According to the mother, the younger child moved in with the father in October 2008, but the father testified that the younger child had begun living with him in June 2008. The father testified that, when younger child lived with him, he paid for the younger child's housing, utilities, Internet service, vehicle, vehicle maintenance, clothing, and food. The father testified that he only gave the mother child support when she asked for it.

“The mother submitted an exhibit that calculated the father's child-support obligation from June 13, 2002, until July 13, 2009, which was the month before the younger child turned 19; according to the mother, the father's child-support arrearage for that period totaled $42,942.12, including interest. However, the mother testified that, because the younger child had gone to live with the father in October 2008, she was not seeking child support from the father that would have been due after October 2008. The mother submitted an exhibit that calculated the father's child-support arrearage, including interest, due from June 2002 through October 2008. According to the mother's calculations, the father owed $38,343.20 in child support for that period.

“The father was responsible for payment of one-half of the medical and dental expenses of the children, and the mother testified that the father had given her money, in the form of checks, to cover his one-half of the medical expenses of the children. The mother testified that the younger child had several medical conditions, including a genetic disorder, and that she had incurred approximately $8,000 in medical bills for the younger child in 2008. The father alleged that he did not have to pay for the medical treatment of the younger child insofar as it arose from his genetic disorder, pursuant to the May 2001 modification judgment. However, he admitted that he did have to pay half of the children's regular dental costs.

“The mother stated that the father had provided some child support directly to her and that she was willing to allow the father's child-support arrearage to be credited to reflect the payments that the father had made directly to her. The father submitted an exhibit into evidence that contained copies of approximately 19 canceled checks payable to the mother between March 2004 and January 2009, which totaled $11,614.73. The father admitted that approximately $414.73 from those payments was to reimburse the mother for payment of the younger child's medical expenses. The father also submitted an exhibit into evidence that contained check stubs that purported to show that he had paid the mother approximately $3,600 from July 2004 through July 2006. The mother further admitted that the father had paid her $600 in October 2007. The father also estimated that he had paid the mother approximately $2,500 in child support between June 2002 and March 2004 that he could not support with evidence from his check register or with canceled checks. The mother testified that at least $3,364.73 that the father had given her in 2008 was for payment of one-half of the younger child's medical expenses for which the father was responsible. The mother also testified that approximately 80% of the money that the father had provided to her was for payment of his half of the children's medical expenses. The father claimed that the checks he had given to the mother were for child support and not for medical expenses.

“The father owned his own plumbing business, which was incorporated in 2006. The father's income-tax records demonstrated that his gross income was $40,801 in 2002, $15,304 in 2003, $13,612 in 2004, $47,327 in 2006, $97,187 in 2007, and $153,348 in 2008. The father stated that he did not have the ability to pay child support on a regular basis before 2006, but he admitted that he had had the ability to pay child support for the three years before the ore tenus hearing.”

Mullins, 58 So.3d at 818–20 (footnotes omitted).

On remand, the trial court entered a judgment...