Wagner v. Wagner, 2060372.

• Court: Alabama Court of Civil Appeals
• Writing for the Court: Thomas
• Citation: Wagner v. Wagner, 989 So.2d 572 (Ala. Civ. App. 2008)
• Decision Date: 15 February 2008
• Docket Number: 2060372.
• Parties: John Scott WAGNER v. Joyce Keyton WAGNER.

989 So.2d 572

John Scott WAGNER v. Joyce Keyton WAGNER.

2060372.

Court of Civil Appeals of Alabama.

February 15, 2008.

William R. Blanchard, Montgomery, for appellant.

Banks T. Smith, Dothan, for appellee.

THOMAS, Judge.

John Scott Wagner ("the father") appeals from a judgment of the Houston Circuit Court denying his petition to modify his periodic-alimony obligation, increasing the amount of his monthly child-support payments to Joyce Keyton Wagner ("the mother") for the parties' younger child, and ordering the father to make payments for the postminority educational expenses of the parties' older child. We affirm.

Procedural History

The father and the mother were divorced on August 30, 1999. Pursuant to the divorce judgment, the mother was awarded custody of the parties' two children and the father was ordered to pay the mother $875 per month in child support and $350 per month in alimony. Soon thereafter, the father petitioned the trial court to modify his child-support payments due to his substantially decreased income. The trial court granted the father's petition on October 27, 1999, and reduced the father's monthly child-support obligation to $510 per month. Approximately five and a half years later, on March 27, 2006, the mother filed a petition to modify child support, seeking postminority educational support for the parties' older child, who was 18 years old at the time, and, based upon the father's income at the time, an increase in the amount of support for the benefit of the younger child, who was then 16 years old. Concurrent with the petition to modify child support, the mother also filed a contempt petition alleging that the father had failed to pay periodic alimony in accordance with the provisions of the divorce judgment. The father answered the mother's petitions, alleging that he was current with his alimony obligations, that he should not be responsible for postminority educational support for the older child, and that an increased amount of child support for the younger child was not warranted. The father also filed a counterpetition seeking to modify his periodic-alimony obligation.

On November 2, 2006, the trial court conducted a hearing on the parties' petitions, and on November 8, 2006, the court entered a judgment dismissing the mother's contempt petition, denying the father's counterpetition to modify alimony, and ordering the father to pay $793 per month in child support for the younger child. The judgment also ordered the father to pay 80% of the educational costs not covered by scholarships for the older child. After filing a postjudgment motion to alter, amend, or vacate the trial court's judgment, which was subsequently denied, the father timely appealed to this court.

The father raises the following issues on appeal: 1) whether the trial court erred in ordering him to pay increased child support for the younger child in the absence of proof that the child's needs had increased; 2) whether the trial court erred in ordering him to provide postminority educational support for the parties' older child; and 3) whether the trial court erred in denying his counterpetition seeking a modification of his periodic-alimony obligation.

Facts

Both of the parties' children encountered serious and life-threatening health problems at a young age. The younger child was born with multiple birth defects, and the older child was diagnosed with acute lymphocytic leukemia. The debt accumulated as a result of the medical expenses associated with the treatment of the younger child resulted in the parties' declaring bankruptcy; at the time they declared bankruptcy, the parties' debt totaled approximately $1.6 million. The costs of the medical treatment required for the older child's leukemia further added to the parties' debt. The father testified that, during this time of financial struggle, the mother was not employed and earned no income to help support the family despite his requests that she do so.

After the parties separated in 1998, the mother and the two children moved in with the mother's parents in Dothan. The mother testified that her father paid the mortgage and utility expenses for the residence and that she did not assist in paying those expenses. After the divorce, the mother obtained employment; at the time of the trial in this matter, she was employed as a secretary at Southern Bone and Joint Specialists. She had been working there since 2001, and, at the time of trial, she earned approximately $2,088 per month.

At the time of the parties' divorce, the father was living in Brownsville, Texas, working at a grocery store and earning approximately $1,625 per month. The father testified that, shortly thereafter, the grocery store closed down and he went to work as a school teacher earning approximately $1,100 per month. The father admitted to accumulating child-support and alimony arrearages. He testified that he had been "broke" at the time and that he had sporadically sent what money he could. In 2002, the father moved to Minnesota to work with Eaton Corporation; he earned approximately $8,200 per month as a supply-chain manager for Eaton. The father made a couple of large payments in 2002 and 2003 to become current with his child-support and alimony obligations. The mother testified that she used the income from those large payments to enroll the younger child in Alabama's prepaid college tuition ("PACT") program and to purchase an automobile for the older child; the mother did not enroll the older child in the PACT program because the cutoff for enrolling her in the PACT program had already passed.

After the parties divorced, the father remarried in 1999. He has a daughter born of that marriage and a stepson from his current wife's previous relationship. The father testified that he also supports his sister-in-law's two children. At trial, the mother testified that she had not remarried.

In 2004, the father moved back to Texas and began working with Lonestar Steel Company as a supply-chain manager. At the time of trial, the father was earning an annual salary of approximately $96,000, or $8,000 per month, and he resided in Longview, Texas. The father testified that he jointly owned a house with his current wife, and he claimed that they had $50,000 equity in the house, with a current mortgage of $2,791 per month. The father testified that, had he remained married to the mother, he would not have had the opportunity to advance in his career.

At the time of trial, the older child had graduated from high school and was attending Mississippi College, a private college, as a full-time student. The mother testified that the older child was planning to earn a degree in ministerial studies and wanted to become a youth counselor after she graduated. The mother also testified that the older child had performed well in school and had been awarded several scholarships to attend Mississippi College. According to the mother's testimony, the older child had also considered attending Auburn University. However, the mother testified that Auburn did not offer the type of undergraduate degree that the older child is seeking and that the older child would have to spend an extra year of study at Auburn to get a master's degree in order to obtain a marketable degree in her chosen field. The mother testified that, according to her calculations, the cost of the older child's attending Mississippi College and obtaining a degree in ministerial studies would be less expensive than the cost of the older child's attending Auburn and obtaining a master's degree in a comparable field. The mother testified that it would take the older child only four years to complete her degree in her chosen field of study at Mississippi College and that it would take the older child five years to complete a master's degree in a comparable field of study at Auburn. Additionally, the mother presented exhibits comparing the estimated cost of attending Mississippi College with the estimated cost of attending Auburn. The exhibits showed that the cost of tuition for an Alabama resident, such as the older child, to attend Auburn was approximately half the cost of tuition for the older child to attend Mississippi College. However, the mother's exhibits indicated that the total estimated cost of the older child's attending Auburn as a full-time student for the 2006-2007 academic school year, including other costs such as room and board, books, and transportation costs, was $17,998. According to the mother's calculations, the total estimated cost of the older child's attending Mississippi College for the 2006-2007 academic school year, after deducting the scholarships the child received, was $16,060.

Although the mother and the father both have college degrees, the father testified that if the parties had remained married he would not have been able to afford to contribute to the older child's college education. The father also testified that neither the mother nor the older child had consulted him when making the decision to attend Mississippi College and that contributing to the educational expenses of the older child's attending Mississippi College would unduly burden his ability to provide for the children he is currently supporting. The father did admit, however, that he wanted all of his children to have the best education possible and that he could contribute some money toward the older child's college expenses.

Standard of Review

It is well settled in Alabama that a trial court's determinations on matters of child support and alimony are committed to its sound discretion and will not be reversed unless they are so unsupported by the evidence as to be plainly and palpably wrong. Further, when evidence is presented ore tenus, the trial court's judgment based on that evidence is presumed correct. See Ex parte Ederer, 900 So.2d 424, 426 (Ala.2004); Allen v. Allen, 966 So.2d 929, 931-32 (Ala.Civ.App.2007); and ...