Havard v. Havard

652 So. 2d 304, 1994 Ala. Civ. App. LEXIS 621, 1994 WL 701108
CourtCourt of Civil Appeals of Alabama
DecidedDecember 16, 1994
DocketAV93000683
StatusPublished
Cited by3 cases

This text of 652 So. 2d 304 (Havard v. Havard) 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
Havard v. Havard, 652 So. 2d 304, 1994 Ala. Civ. App. LEXIS 621, 1994 WL 701108 (Ala. Ct. App. 1994).

Opinion

ROBERTSON, Presiding Judge.

On November 5, 1990, the trial court entered a judgment divorcing the parties, Jolee Havard and Ross Havard. In the divorce judgment, the mother was awarded custody of the parties’ three minor children, Wren, John, and Paula. The father was ordered to pay the mother child support in the amount of $486 per month and to pay 75% of all the uninsured prescription drug, medical, and dental expenses incurred by the parties’ minor children.

In April 1992, the father’s child support obligation was reduced from $486 to $300 by an order of the trial court, and he was found to be $372 in arrears in payment of child support. On November 4, 1992, the trial court ordered the father to pay the wife $423 for medical expenses incurred by the parties’ minor children. Following a hearing in December 1992, the trial court increased the father’s child support obligation back to $486.

On December 20, 1993, the mother filed a rule nisi motion, alleging that Wren, one of the parties’ minor children, was an “educable mentally retarded” child; that Wren did not have the ability to care for herself; that Wren would continue to be disabled beyond the age of majority and would need continuing support; that as of December 9,1993, the father’s child support payments were in ar-reai’s in the amount of $1,108 plus intex-est; that the father was inquired to pay 75% of all the uninsured prescription drug, medical, and dental expenses incux-red by the pai’ties’ minor children; and that the father owed the mother $2,133.69 plus interest, $1,710.44 awarded in the divoi'ce judgment, and $423.35 awarded in a subsequent judgment for medical expenses that the minor childi’en had incurred.

Oh December 27, 1993, the trial court ordered the parties to exchange full and complete financial information and set the case for trial on March 10, 1994.

On February 4, 1994, the father answered the mother’s petition, denying that Wren was an “educable mentally retarded” child and that she did not have the ability to care for herself. The father also filed a countei-petition, requesting that the tidal coui’t modify the divoi’ce judgment if it found Wren to be disabled and in need of continuing support, so that she could live with him in Birmingham, Alabama, to pursue educational training, vocational training, and other activities in that location; that the mother be directed to apply for any SSI benefits that might be available to Wren; and that the mother be held in contempt of court for having refused to provide the father with an IRS form that he needed to claim a tax deduction for two of the parties’ minor children, as was provided in the divorce judgment.

On Febi’uary 4, 1994, the father filed a motion to have a guardian ad litem appointed for Wren. On Febi-uary 8, 1994, the trial court issued another order directing the parties to exchange full and complete financial information and setting the date of the trial for April 12, 1994. On March 2, 1994, the father filed a motion for discovei-y and a motion to shorten the time for responding to his motion for discovei-y; both motions were granted.

[307]*307Following an ore tenus proceeding held on April 12,1994, the trial court entered a judgment on May 19,1994, directing the father to continue to pay child support for Wren beyond the age of majority; to continue to pay child support for the parties’ three minor children in the amount of $486 per month; and to pay 76% of all uninsured prescription drug, medical, and dental expenses for the children, including an orthodontic bill incurred by the minor child John. The trial court further held that the father was $1,476 in arrears in his payment of child support and $1,030.35 in arrears in his payment of the medical expenses owed to the mother.

On June 10, 1994, the mother filed a motion to alter, amend, or vacate the judgment. This motion was denied by operation of law.

The father appeals, contending: (1) that the evidence did not support the trial court’s order to pay medical expenses in excess of the $423 that was awarded to the mother by the trial court in a prior judgment; (2) that the evidence did not support the trial court’s order to pay 75% of an orthodontic bill incurred by the minor child John; (3) that the evidence did not support the trial court’s finding that he was in arrears in his payment of child support; and (4) that the trial court erred in denying his request for a modification of his visitation with the minor child Wren.

The father first argues that the evidence did not support the trial court’s order to pay medical expenses in excess of the $423 that was awarded to the mother by the trial court in a prior judgment.

When evidence is presented ore tenus, the judgment of the trial court based on that evidence is presumed correct, and that judgment will not be reversed on appeal absent an abuse of discretion or a showing that the judgment is plainly and palpably wrong. Kelley v. Kelley, 628 So.2d 933 (Ala.Civ.App.1993). Further, if there is any evidence to support the trial court’s judgment, this court must affirm, absent plain and palpable error. J.C. v. AGape of Central Alabama, 590 So.2d 302 (Ala.Civ.App.1991).

The mother testified that the father owed her approximately $1030 for uninsured medical expenses incurred by the parties’ minor children. The mother testified that of the $1030 owed, the father owed her $423 from a prior judgment and $700 for additional medi- ■ cal expenses incurred by the parties’ minor children, less $93 paid by the father. The record reflects that the father failed to present any evidence contradicting the mother’s approximation of the medical expenses owed by him.

The father testified that he had not paid all of his share of the medical expenses incurred by the minor children. At the trial, the father submitted a handwritten document, designated “Defendant’s Exhibit Two,” showing the medical expenses that the mother alleged that he owed her. The document revealed that the father still owed the mother $423 for medical expenses that the trial court had ordered him to pay on November 4, 1992; that on January 1, 1994, he had received a bill from the mother requesting that he pay $93.75, his share of a prescription drug expense; that on February 12, 1994, the father paid the mother for the $93.75 drug expense; and that on April 9, 1994, he had received additional medical bills from the mother, which he had not paid.

After a careful review of the record, we conclude that there was evidence to support the award of medical expenses in excess of the $423 awarded in a prior judgment. Thus, we conclude that the trial court did not abuse its discretion in ordering the father to pay the mother for medical expenses incurred by the parties’ minor children in excess of $423.

Second, the father contends that the evidence did not support-the trial court’s judgment, which ordered him to pay 75% of an orthodontic bill incurred by the parties’ minor child John. Specifically, the father argues that the mother did not raise the issue of the orthodontic expense in her rule nisi petition; that the issue of the orthodontic expense was tried without his express or implied consent; and that there is no eviden-tiary basis to support such an award.

When an issue not raised in the pleadings is “tried by express or implied consent of the parties,” the pleadings may be [308]*308amended “to conform to the evidence.” Rule 15(b), Ala.R.Civ.P.; see Jackson v. Weaver, 516 So.2d 702 (Ala.Civ.App.1987).

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Bluebook (online)
652 So. 2d 304, 1994 Ala. Civ. App. LEXIS 621, 1994 WL 701108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/havard-v-havard-alacivapp-1994.