Dodd v. Dodd

588 So. 2d 476, 1991 Ala. Civ. App. LEXIS 465, 1991 WL 149970
CourtCourt of Civil Appeals of Alabama
DecidedAugust 9, 1991
Docket2900163
StatusPublished
Cited by4 cases

This text of 588 So. 2d 476 (Dodd v. Dodd) 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
Dodd v. Dodd, 588 So. 2d 476, 1991 Ala. Civ. App. LEXIS 465, 1991 WL 149970 (Ala. Ct. App. 1991).

Opinions

ROBERT P. BRADLEY, Retired Appellate Judge.

This appeal involves child support.

The parties were divorced on September 19, 1988 in the Mobile County Circuit Court. The mother was awarded custody of the parties’ four minor children and the father was ordered to pay the sum of $1,014 per month in child support.

On June 11, 1990 the father filed a motion seeking a reduction of his monthly child support based upon a material change in his financial circumstances.

The mother subsequently filed a motion for a rule nisi, alleging that the father was in arrears on child support payments and had failed to maintain medical insurance on the children as required by the divorce decree.

After an ore tenus proceeding, the trial court entered an order finding the father in contempt and ordered him to pay $4,700 in child support arrearage, including interest and outstanding medical expenses for the children. The trial court then modified the divorce decree to require the father to provide hospitalization insurance for the children and to be responsible for all of their extraordinary medical and dental expenses. The trial court also reduced the father’s child support obligation to $500 per month. The mother appeals from the trial court’s order.

We begin by noting that review of a judgment of contempt comes before this court by way of certiorari. McKeever v. McKeever, 528 So.2d 856 (Ala.Civ.App. 1988). Here, however, the mother does not challenge the court’s finding of the father’s contempt, but raises several issues concerning the amount of arrearage assessed by the court. She has thus properly raised these issues by appeal rather than through petition for certiorari. Our review of this appeal is limited; issues of child support are left to the sound discretion of the trial court, and its judgment on these matters will not be disturbed unless plainly and palpably wrong. Scott v. Scott, 563 So.2d 1044 (Ala.Civ.App.1990).

The mother first argues that the trial court erred in its calculation of the past child support due her.

At trial, it was undisputed that the father stopped paying child support after May 1990 and had not resumed payments at the time of the hearing in December. The trial court’s order reducing the amount of child support to $500 did not make the reduction effective until January 1991. Accordingly, the record reflects an arrearage of $7,098 due the mother for the period of May 1990 to January 1, 1991.

Obviously, the trial court did not award this amount to the mother and it did not indicate in its order how it computed an arrearage of $4,700. However, the record shows that at trial the father claimed several “credits” against the arrearage, and it appears that the trial court applied various amounts of credit to the arrearage.

The father first claimed a credit for the expenses of moving the mother and four children to Boston, Massachusetts after the divorce. The father testified at trial that the mother agreed to let him pay some $1,404 in moving expenses in lieu of the September 1988 child support payment.

The father also claimed a credit at trial for some $1,300 in plane tickets bought before the time of the divorce. The record shows that these tickets were bought for the children to visit their maternal grandparents in Boston prior to the divorce. The father stated that the mother’s father “traditionally” reimbursed the parties for the expense of these tickets but failed to do so that year. The father claimed that the mother agreed to subtract the expense of these tickets from the child support payments for January and February of 1989.

There is evidence in the record to indicate that the parties may have agreed to all of these so-called credits against the father’s child support obligations. However, these agreements were without effect. The parents of a minor child cannot nullify or modify a previous child support judgment by their mutual agreement without receiving approval of the trial court to do so. Holland v. Holland, 406 So.2d 877 (Ala.1981).

[479]*479In this case there is absolutely nothing in the record to indicate that the parties sought the approval of the trial court before “agreeing” to forgo various payments as claimed. The father’s obligation for these payments was thus never altered, and an arrearage for these amounts was produced.

We recognize that the trial court has discretion to award credits against such an arrearage. McDaniel v. Winter, 412 So.2d 282 (Ala.Civ.App.1982). The father may be credited for expenses which he assumes gratuitously, but only if these expenses can clearly be categorized as essential to basic child support. Evans v. Evans, 500 So.2d 1095 (Ala.Civ.App.1986).

Here, the $1,300 plane tickets provided to the children before the divorce were not part of the father’s legal obligation of support. They were an “extra” which the father chose to finance. Likewise, we do not regard the expenses of the move to Boston as a substitute for child support. The move was instigated by the mother and thus the cost was hers to bear. The basic needs of the children were ongoing during the move, and we do not find that the father could properly pay the cost of moving vans in lieu of paying for these needs.

We note that the father unilaterally credited the aforementioned costs against his court-ordered child support obligation; indeed, the father unilaterally terminated all child support payments after May 1990. A parent is not permitted to so alter his child support payments, and the trial court should give much consideration to this misconduct when determining any credit to be given. Smith v. Smith, 443 So.2d 43 (Ala. Civ.App.1983). In light of this and the nature of the expenses claimed, we conclude that the trial court could not properly credit these expenses against the arrearage that the father willfully produced.

At trial, the father testified that he remarried and relocated to South Carolina within four months after the divorce. The parties’ sixteen-year-old daughter subsequently came to live with him and his new wife for approximately six months. The father claimed a credit of $280 for the daughter’s plane ticket to South Carolina, as well as for the expense of supporting her for those months.

It is well settled that claims of ar-rearage of child support may be offset by credit for amounts expended by the obligated parent when the parent actually furnishes support for a child while the child is in his custody or the custody of another. Weaver v. Weaver, 401 So.2d 77 (Ala.Civ. App.1981). However, the obligated parent should not be allowed a credit against the child support arrearage where he has presented no proof of the amounts given to the child. O’Neal v. O’Neal, 532 So.2d 649 (Ala.Civ.App.1988). In the instant case, the father has failed to provide evidence of the amount of support he provided for the daughter while she lived with him. At trial, the father merely stated that the daughter’s plane ticket from Boston to South Carolina totaled $280. While the trial court in its discretion could have allowed credit for this amount, it could not allow a larger credit without evidence of a larger amount spent.

Based on the above facts and applicable law, we consider the $280 plane ticket to be the only proper credit to be applied against the arrearage. Accordingly, we reverse this aspect of the trial court’s order and remand the matter to the trial court for a recalculation of the arrearage due the mother.

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Bluebook (online)
588 So. 2d 476, 1991 Ala. Civ. App. LEXIS 465, 1991 WL 149970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodd-v-dodd-alacivapp-1991.