State ex rel. Shellhouse v. Bentley

• Decision Date: 14 July 1995
• Citation: 666 So.2d 517
• Parties: STATE ex rel. Donald SHELLHOUSE v. Wanda BENTLEY. 2940372.
• Court: Alabama Court of Civil Appeals

Page 517

666 So.2d 517

STATE ex rel. Donald SHELLHOUSE v. Wanda BENTLEY.

2940372.

Court of Civil Appeals of Alabama.

July 14, 1995.

William Prendergast and Mary E. Pons, Asst. Attys. Gen., Department of Human Resources, Montgomery, for appellant.

No brief filed for appellee.

YATES, Judge.

On December 18, 1992, the trial court divorced Donald R. Shellhouse (father) and Wanda Bentley (mother), awarding the father sole custody of the parties' then 12-year-old daughter. The trial court awarded scheduled visitation to the mother and ordered her to pay $50.00 per month child support and to maintain health insurance on the child.

On August 3, 1994, the State of Alabama, on behalf of the father, filed a motion for modification of the child support provision, claiming that a material change in circumstance had occurred because "the child is older and an increase is due." The mother moved to dismiss the petition and asked the trial court to find the father in contempt for his alleged failure to allow her visitation with the child. The trial court denied the mother's motion to dismiss, and, after an in-camera conference with the child, ordered:

"that the child will not, under any circumstances, visit with the [mother], nor will the [father], who is the custodial parent, insist or encourage the minor child to visit with the [mother]. Therefore, under these circumstances, the [father's] Motion For Increase in Child Support is denied and further, [the mother] is relieved of her child support obligations."

The father appeals, contending that the trial court erred in relieving the mother of her child support obligation based on the child's refusal to visit with her.

"Parental support is a fundamental right of all minor children. It is a continued right, which cannot become stale until after the child reaches the age of majority. The right of support is inherent and cannot be waived, even by agreement." Ex parte University of South Alabama, 541 So.2d 535, 537 (Ala.1989) (citation omitted); see also Hermsmeier v. McCoy, 608 So.2d 1369 (Ala.Civ.App.1992). Although child support is paid to the custodial parent, it is for the sole benefit of the minor children. Frasemer v. Frasemer, 578 So.2d 1346 (Ala.Civ.App.1991). The custodial parent cannot agree to forgive the amount due under a child support arrearage, and the parent cannot waive child support due under a court order. Grimes v. Woolman, 595 So.2d 504 (Ala.Civ.App.1992).

In Phillippi v. State ex rel. Burke, 589 So.2d 1303 (Ala.Civ.App.1991), the father stopped making child support payments because he was being denied visitation. The trial court found the father in arrears and refused to credit the arrearage for the time period the mother denied him visitation. This court affirmed, stating: "A party may not unilaterally reduce child support payments without the consent of the court." Id. at 1304.

A party must petition the court for a modification of child support provisions. "A child support award may be modified ... 'upon a showing of a material change of circumstances that is substantial and continuing.' " Dimoff v. Dimoff, 606 So.2d 159, 161 (Ala.Civ.App.1992) (citation omitted). Factors indicating a change of circumstances include a material change in the needs, conditions, and circumstances of the child. Id. Neither party presented evidence to show a material change in circumstances. Further, "The waiver of rights of visitation in exchange for release from the duty of child support is a legal impossibility." Willis v. Levesque, 402 So.2d 1003, 1004 (Ala.Civ.App.1981). We conclude that the trial court erred in terminating the child support obligation; therefore, we reverse the trial court's order and remand the case with instructions for the trial court to issue an order consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, J., concurs specially.

THIGPEN, J., concurs in the result only.

ROBERTSON, P.J., and MONROE, J., dissent.

CRAWLEY, Judge, concurring specially.

Because the mother cannot be relieved of paying child support, the trial court has a difficult task of seeing that justice is done. State Department of Human Resources ex rel. Nathan v. Nathan, 655 So.2d 1044 (Ala.Civ.App.1995). On appeal, the father urges us to reverse the judgment of the trial court and require that court to enter an order requiring the mother to pay child support, but, on the other hand, does not object to the trial court's refusal to order visitation. This position cannot be approved by this court, because it would let the father "have his cake and eat it too," i.e., the father would receive child support, yet be granted his desire for the child not to visit the mother.

Although the trial court's frustration in dealing with the disrupted mother-child relationship resulting from divorce is appreciated, its judgment deprives the child of support and sanctions the father's irresponsible behavior in failing to encourage the child to visit her mother and to insist that she do so. Because the father, on appeal, urges this court to reverse the trial court's judgment and require the mother to pay child support it is likely that the trial court contemplated pressuring the father to encourage visitation by relieving the mother of her obligation to pay child support. If this ploy works, i.e., if the father's "encouragement" results in the child's visiting the mother and his petition to reinstate child support is granted, then there is no problem with the trial court's judgment. However, if the ploy does not work, i.e., if visitation is not restored, the child will be deprived of financial support and of a relationship with her mother.

The trial court, on remand, must first determine whether the interests of the child are best served by allowing or by disallowing visitation with the mother. The trial court may limit, during visitation, the objectionable activities of the mother, to protect the child's well-being. Smith v. Smith, 599 So.2d 1182 (Ala.Civ.App.1991).

If it determines that it is in the best interest of the child for the child to visit her mother, the trial court has its contempt power to enforce that determination. Schotz v. Oliver, 361 So.2d 605 (Ala.Civ.App.1978). Even if the trial court determines otherwise, it shall set reasonable child support. Cook v. Echols, 16 Ala.App. 606, 80 So. 680 (1918).

THIGPEN, Judge, concurring in the result only.

I concur that the result of the lead opinion correctly reverses and remands this cause for the trial court to properly determine the non-custodial parent's child support obligation based upon the proper factors; i.e., the needs of the child and the parent's ability...