Batchelor v. Batchelor

188 So. 3d 704, 2015 WL 5311092
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 11, 2015
Docket2140430
StatusPublished
Cited by3 cases

This text of 188 So. 3d 704 (Batchelor v. Batchelor) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Batchelor v. Batchelor, 188 So. 3d 704, 2015 WL 5311092 (Ala. Ct. App. 2015).

Opinion

THOMPSON, Presiding Judge.

Heather Dee Batchelor (“the mother”) appeals from the judgment of the Mobile Circuit Court (“the trial court”) divorcing her from Jerald B. Batchelor (“the father”). Specifically, the mother . appeals from that portion of the divorce judgment awarding the father primary physical custody of the parties’ only child (“the child”), subject to the mother’s visitation. The father cross-appeals from that portion of the judgment providing that the mother is [706]*706not required to pay child support to the father.

The mother and the father married in March 2006 and had one child, who was born in June 2007. In May 2010, the father became aware that the mother was having an affair with a former boyfriénd. The parties began seeing a marriage counselor in October 2010. The counselor’s progress notes, which were admitted into evidence, indicate that the mother did not want to preserve the marriage, and in January 2011 she moved out of the marital residence. The father filed a complaint for a divorce on January 14, 2011, in which, among other things, he sought custody of the child. On January 18, 2011, the' father filed a motion for “temporary custody” of the childv The mother filed a counterclaim for a divorce on January 30,- 2011, in which she also sought custody of the child. On February 10, 2011, the trial court entered an order directing the parties to share pendente lite custody of the child; specifically, the parties were to alternate the weeks each exercised custody. As the litigation proceeded, both parties filed motions for contempt against each other for various reasons. Ultimately, a trial of the matter was held on December 9, 2014. On December 16, 2014, the trial court entered a judgment divorcing the parties and awarding custody of .the child to the father. The division of marital property remained pending until the final judgment was entered on January 28,- 2016. Neither party filed a postjudgment motion. The mother timely filed a notice of appeal; the father timely filed a cross-appeal.

On appeal, the only‘issue the mother raises is whether the trial court erred in awarding the father primary physical custody of the child. In her appellate brief, the mother argues that the evidence presented at the trial supported a. determination that she, and not the father, should have been awarded custody of the child. In other words, the mother argues that the evidence was insufficient to support the trial court’s judgment.

The father asserts that the mother’s argument was not • preserved for appellate review. Specifically, he states that, because the trial court made no findings of fact in its judgment awarding custody to the father and because the mother is challenging the sufficiency of the evidence to support that judgment, the mother was required to file a postjudgment motion. She did not do so; therefore, the father says, this issue was not properly preserved.

In New Properties, L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004), our supreme court construed Rule 52(b), Ala. R. Civ. P., to require that, in cases in which a judge sits without a jury and does not make findings of fact, a litigant asserting the insufficiency of the evidence must file a postjudgment motion raising that issue in order to preserve it for appeal. In Adams v. Adams, 21 So.3d 1247, 1252-53 (Ala.Civ.App.2009), this court applied the rule set forth in New Properties to the issue of whether an argument pertaining to the sufficiency of the evidence iri a custody case had been preserved for appellate review when no 'postjudgment motion had been filed. In Adams, the trial court modified a previous custody judgment, changing primary physical custody of the children from the mother to the father and ordering the mother to pay the father child support. In the modification judgment, the trial court noted that it had observed the witnesses and that it found that the mother’s testimony was not credible. The trial court also found that both parties hád committed domestic violence during the marriage, so that if any presumption created by the domestic-violence statutes exist[707]*707ed, that presumption was “canceled out.” Id. at 1252.

Furthermore, the trial court in Adams found that

“ ‘there ha[d] been a material and substantial change of circumstances since the final [divorce judgment], and that the positive good brought about by a change of custody [would] more than offset any disruptive effect caused- by the change in custody. The Court thus [found] that the [father] ha[d] met his -burden of proof_’ ” -

Id.

This court found that the “above-quoted portion of the trial court’s judgment contained] sufficient factual findings to render unnecessary the filing of a post-judgment motion challenging the sufficiency of the evidence pertaining to the custody modification.” Id. at 1253.

In this case, the evidence presented at trial was disputed. However, the trial court made no factual findings pertaining to custody. The judgment simply states: “That the [father] is awarded custody of the minor child born of the marriage ...,” subject to certain conditions and the mother’s visitation. Therefore, on the authority of New Properties and Adams, the mother was required to file a postjudgnient motion challenging the sufficiency of the evidence supporting the trial court’s custody award. Because she did not, we have no choice but to conclude that the mother failed to preserve this issue for appellate review. New Props., supra.

In his cross-appeal, the father contends that the trial court erred in failing to order the mother to pay child support.1 The record indicates that the mother and the father each completed Form CS-41 income affidavits, as required by Rule 32(E), Ala. R. Jud. Admin. On his form, the father stated that he earned $5,244.74 each month, or $62,936.88. annually. Form CS-42, which reflects each party’s child-support obligation, also indicates that the father pays health insurance of $555 each month. On her form, the mother stated that she earned $3,238 each month, or $38,856 annually. The mother also noted that she paid $138.33 each month for work-related child, care, and $54.92 each month for dental insurance.

The Form CS-42 included in the record indicates that the father’s monthly child-support obligation would be $427; the mother’s obligation would be $547. In its judgment, however, the trial court stated that it was not ordering the mother to pay child support, adding “this is a.deviation from the Guidelines, of Rule 32, [Ala. R. Jud. Admin,,], and is based .on the [mother’s], inability to pay child support.” ...

Rule 32(A) and (C), Ala. R. Jud. Admin., provide a method for determining the amount of child support according to the parents’ combined incomes and a schedule of basic child-support obligations. There is a rebuttable presumption that the amount of child support calculated pursuant to the Rule 32 guidelines is the “correct amount of child support to be awarded.” Rule 32(A), Ala. R. Jud. Admin.

“When the court determines that the application of the guidelines would be .manifestly .unjust or inequitable and then deviates from those guidelines. in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. M.S.H. v. C.A.H., [829 So.2d 164 (Ala.Civ.App.2002)] (citing Thomas [v. Norman], 766 So.2d [857] at 859 [ (Ala.Civ.App.2000) ]). Rule 32(A), Ala. R. Jud.

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188 So. 3d 704, 2015 WL 5311092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/batchelor-v-batchelor-alacivapp-2015.