Faust v. Knowles

96 So. 3d 829, 2012 WL 1560229
CourtCourt of Civil Appeals of Alabama
DecidedMay 4, 2012
Docket2100513
StatusPublished
Cited by2 cases

This text of 96 So. 3d 829 (Faust v. Knowles) 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
Faust v. Knowles, 96 So. 3d 829, 2012 WL 1560229 (Ala. Ct. App. 2012).

Opinion

PITTMAN, Judge.

Judy Faust (“the mother”) appeals, and Bryan W. Knowles (“the father”) cross-appeals, from a judgment of the Marshall Circuit Court entered in a postdivorce modification proceeding and in a related civil action brought by the mother and the parties’ children, Andrew W. Knowles (“the son”) and Patricia Tana Knowles (“the daughter”) seeking equitable relief as to certain custodial financial accounts containing funds alleged to belong to the son. We affirm in part and reverse in part as to the appeal; affirm as to the cross-appeal; and remand.

This is the second time that the mother and the father have appeared before this court. In Faust v. Knowles, 952 So.2d 380 (Ala.Civ.App.2006), this court noted that the parties had exercised true joint custody of the son and the daughter under the terms of their agreed divorce judgment; that the son was “13 years old and [the] daughter ... was 10 years old” when a previous modification action had been heard in February 2004; and that the trial court had, in October 2004, declined to modify the custody provisions of that judgment. Id. at 381-82. In Faust, we reversed the trial court’s decision not to modify custody, concluding that the trial court had applied an improper custody standard; however, the trial court, on remand, did not enter a judgment con[831]*831forming to this court’s mandate until September 2009. In the September 2009 judgment entered on remand, the mother was awarded primary physical custody of the son, but the daughter’s joint custody was not changed.

In January 2010, the son and the mother brought a civil action against the father and the investment bank that had allegedly held funds belonging to the son in a custodial account under the control of the father; in that action, the son and the mother sought a judgment directing the father to provide an accounting and requiring the father to cease disbursement of funds in the custodial account. A motion was filed in that action in May 2010 seeking to add the daughter as a plaintiff, who claimed to have a custodial financial account at the same financial institution. Although the father filed an answer generally denying the allegations of the complaint, he subsequently filed a counterclaim in which he averred that the moneys deposited in the children’s custodial accounts had been given to him by the father’s parents for the educational benefit of the children, i.e., to defray college costs not covered by prepaid-college-tuition plans acquired on behalf of the children; he sought a judgment declaring that he was the actual owner of the accounts or, in the alternative, a judgment against the plaintiffs for money paid by mistake.

At the same time that the civil action regarding the custodial accounts was pending, the father filed pleadings seeking a finding of contempt against the mother for having allegedly failed to allow him to have contact with the daughter and a modification of the divorce judgment to award him sole custody of the daughter; the mother filed an answer denying the father’s right to relief, and she asserted a counterclaim seeking sole custody of the daughter and both child support and postminority educational support. Pendente lite custody of the daughter was awarded to the mother pending a final hearing, and the mother subsequently asserted a contempt claim against the father stemming from his alleged refusal to pay legitimate expenses of the children.

In November 2010, the trial court held a trial as to all claims of the mother, the father, and the children in both actions. At that trial, the mother, the father, the children, and the father’s mother testified regarding the substantive issues in controversy, and all parties appearing at trial agreed that the investment bank was not a proper party to the action. The trial court subsequently entered a judgment awarding the mother primary physical custody of the daughter, subject to the father’s visitation rights; directed the father to pay $346 per month in child support based upon an express deviation from the Rule 32, Ala. R. Jud. Admin., child-support guidelines; directed both parents to maintain health insurance with respect to the daughter; directed the father to pay $6,035.49 to the mother for unpaid college-education expenses and medical expenses of the children; and otherwise denied all other requests for relief. The mother’s timely postjudgment motion to alter, amend, or vacate the judgment averred, among other things, that the trial court had erred in determining the father’s child-support obligation as to the daughter, had erred in declining to find him in contempt, and had erred in failing to address the claims that the father was improperly disbursing moneys from the custodial accounts. The trial court denied that motion. The mother appealed and the father cross-appealed from the trial court’s judgment; the son and the daughter are not parties to the appeals.

We will first address the father’s cross-appeal, in which he primarily con[832]*832tends that the trial court acted outside its discretion in failing to award him custody of the daughter. We note that during the pendency of these appeals, the daughter (whose birthday is February 25, 1993) reached the age of majority. Because the daughter is now an adult (see § 26-1-1, Ala.Code 1975), her custody is no longer the subject of controversy, and this court cannot grant effective relief. The father’s contention that the trial court erred in denying his petition for custody as to the daughter is therefore moot. E.g., Wendel v. Wendel, 331 P.2d 370, 371 (Okla.1958) (when, pending appeal from custody-modification judgment, child reached age of majority, question of propriety of judgment became moot). Thus, the trial court’s judgment is due to be affirmed as to that issue. 5 Am.Jur.2d Appeal & Error § 932 (1962) (“A judgment or order may be affirmed without consideration of the merits of the case where the question has become moot.”); accord 5 C.J.S. Appeal & Error § 1024 (2007); see also L.R.M. v. D.M., 962 So.2d 864, 872 n. 7 (Ala.Civ.App.2007) (holding that issue of propriety of award of custody of child to paternal grandparents for six-month period was moot because six months had elapsed). Further, because the father’s principal brief contends that the trial court’s judgment as to child support should be reversed only in the event that this court reverses that judgment as to the custody issue, his cross-appeal is, as to the second issue, predicated upon the happening of an event that has not taken place, which warrants affirmance as to that issue as well. See Bess v. Waffle House, Inc., 824 So.2d 783, 787 (Ala.Civ.App.2001) (affirming as to conditional cross-appeal when the condition on which the pertinent argument was predicated had not occurred).1

We now turn to the issues raised in the mother’s appeal. The mother first contends that the trial court erred in calculating child support with respect to the daughter. The record reflects that the trial court prepared a Form CS-42 to determine the support payable under the Rule 32, Ala. R. Jud. Admin., child-support guidelines, utilizing a Form CS^U income-affidavit form supplied by the father. The father’s Form CS-41 listed the father’s monthly income as $4,386, an amount considerably less than the father’s pay stubs indicated that he was actually earning; that form also noted that the father was paying $551.01 per month for health-insurance coverage for the daughter.

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Cite This Page — Counsel Stack

Bluebook (online)
96 So. 3d 829, 2012 WL 1560229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faust-v-knowles-alacivapp-2012.