McCormack v. State ex rel. Baker

658 So. 2d 462, 1994 Ala. Civ. App. LEXIS 357, 1994 WL 391227
CourtCourt of Civil Appeals of Alabama
DecidedJuly 29, 1994
DocketAV93000060
StatusPublished

This text of 658 So. 2d 462 (McCormack v. State ex rel. Baker) 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
McCormack v. State ex rel. Baker, 658 So. 2d 462, 1994 Ala. Civ. App. LEXIS 357, 1994 WL 391227 (Ala. Ct. App. 1994).

Opinion

THIGPEN, Judge.

This case involves petitions for modification regarding child custody and support.

The parties divorced in 1981, and custody and child support have been active issues between them since that time. Pursuant to a prior determination, the father retained custody of the older son, the mother retained custody of the younger son, and the father had been ordered to pay child support to the mother for the younger son in her custody. In 1991, this court conditionally granted a writ of mandamus in this matter regarding an order of the Jackson County Circuit Court. Ex parte Baker, 575 So.2d 98 (Ala. Civ.App.1990). Subsequently, the Jackson County Circuit Court set aside its order regarding the younger son and transferred that matter to the Madison County Circuit Court. Ultimately, that case was dismissed.

Next, the State, on behalf of the mother, sought an increase in child support and a judgment to establish an arrearage in child support. The father answered and filed a counterclaim seeking custody of the younger son. Following an ore tenus proceeding, the trial court entered a judgment that left custody with the mother, established a child support obligation for the father consistent with the guidelines of Rule 32, Ala.R. Jud.Ad-min., and determined an arrearage. The father appeals. On appeal, the father raises [464]*464three issues: (1) whether the trial court correctly found an arrearage; (2) whether the trial court erred in denying his custody petition; and (3) whether the trial court correctly applied the law in its order regarding the payment of child support.

The judgment of the trial court was based upon ore tenus evidence; therefore, that judgment comes to this court clothed with a presumption of correctness, and it will be reversed only for an abuse of discretion or if the evidence does not support the judgment. Jones v. Philpot, 591 So.2d 864 (Ala. Civ.App.1991).

The father’s argument regarding the arrearage does not challenge the amount of arrearage determined. He challenges only whether there was a valid order upon which to find an arrearage. It is his position that there was no existing child support order, and that, therefore, the trial court erred in determining any arrearage.

The record discloses that in 1990, the father filed a petition in Jackson County seeking custody of the younger child, who lived in Madison County with the mother. The mother’s request for a change in venue was denied. Ultimately, the Jackson County Circuit Court entered an order on July 30,1990, changing custody of the younger child to the father and terminating the father’s support obligation for that child. That order also addressed visitation and other concerns regarding the older child, who was in the custody of the father and who was a resident of Jackson County. Following the action of this court conditionally granting a writ of mandamus, the Jackson County Circuit Court entered an order clarifying its position regarding venue, setting aside its July 30, 1990, judgment in regard to the younger son, and transferring “the aspect of the case involving [the younger son] to the Circuit Court of Madison County.” See Baker, supra. The record contains a copy of an order from the Madison County Circuit Court disclosing that when the case was called in Madison County, the father failed to appear and the mother’s motion to dismiss was granted.

The father argues that when Jackson County set aside its order and transferred the matter to Madison County, only the change of custody was set aside. He argues that the termination of his child support obligation for that child remained an effective judgment, and, therefore, that no arrearage could have accrued against him.

The father presented this position to the trial court, and the trial court made express findings to the contrary, which are supported by the orders and other evidence contained in the record. The trial court’s order succinctly states:

“On January 21, 1991, the Honorable Loy Campbell, Circuit Judge of Jackson County, Alabama, set aside his prior Order of July 30, 1990, ‘insofar as it applies to [the younger son].’ The July 30, 1990, Order had provided that ‘[a]ll child support is hereby terminated.’ However, with the July 30,1990, Order being set aside, Judge Campbell’s prior Order of June 1, 1983, was then, again, in effect.... The child support provision of the June 1, 1983, Order of Judge Campbell provides that WILLIAM L. McCORMACK shall pay ‘$150.00 per month child support.’”

Based on that finding, the trial court calculated the arrearage.

The provisions of court orders should be considered in light of all of the circumstances, and if the terms of a judgment are not ambiguous, they should be given their usual and ordinary meaning. Moore v. Graham, 590 So.2d 293 (Ala.Civ.App.1991); See also Hanson v. Hearn, 521 So.2d 953 (Ala.1988). Furthermore, when the trial court’s interpretation of a previous judgment is based on ore tenus evidence, as here, it is presumed correct unless it is plainly and palpably wrong. Moore, supra.

The father’s support obligation for the younger son was clearly an “aspect of the case involving [the younger son],” and, therefore, was not terminated by the subsequent Jackson County order. The rationale for requiring transfer of the matters relating to the younger son to Madison County is that the son lived in Madison County with the custodial parent and “the trial court had nothing before it upon which it could properly refuse to transfer venue.” Baker at 100. [465]*465The Jackson County transfer order explained that its prior denial of a change of venue was based upon judicial economy, i.e., the Jackson County court was called upon to address, and its order did in fact address, matters concerning both children, including the older son, who lived in Jackson County. There were other provisions of the July 30, 1990, Jackson County order that remained effective and that were not set aside. The father has simply failed to show error in the trial court’s determination regarding the existing child support order and its subsequent determination regarding an arrearage.

Next, the father contends that the trial court erred in denying his petition to change custody. He correctly asserts that custody modifications such as this one are subject to the stringent rule set out by our Supreme Court in Ex parte McLendon, 455 So.2d 863 (Ala.1984), i.e., that a noncustodial parent seeking to change custody must prove a change in circumstances since the last judgment that warrants a custody change, and that the positive good brought about by the change must more than offset the inherently disruptive effect caused by uprooting the child. The father argues that the trial court’s failure to modify custody was unsupported by the evidence, was plainly wrong, and was an abuse of discretion, citing Clayton v. Clayton, 598 So.2d 929 (Ala.Civ.App. 1992). Although he cites and relies on correct legal principles for his position, he provided nothing to the trial court, nor to this court on appeal, to meet his heavy burden and to necessitate changing custody from one suitable parent to the other. See Glover v. Singleton, 598 So.2d 995 (Ala.Civ.App.1992). In part, the father attempts to fault the supervision of the mother, who testified that she must work more than one job to meet their financial needs.

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Related

Moore v. Graham
590 So. 2d 293 (Court of Civil Appeals of Alabama, 1991)
Kellum v. Jones
591 So. 2d 891 (Court of Civil Appeals of Alabama, 1991)
Jones v. Philpot
591 So. 2d 864 (Court of Civil Appeals of Alabama, 1991)
Ex Parte McLendon
455 So. 2d 863 (Supreme Court of Alabama, 1984)
Hanson v. Hearn
521 So. 2d 953 (Supreme Court of Alabama, 1988)
Ex Parte Baker
575 So. 2d 98 (Court of Civil Appeals of Alabama, 1990)
Clayton v. Clayton
598 So. 2d 929 (Court of Civil Appeals of Alabama, 1992)
Glover v. Singleton
598 So. 2d 995 (Court of Civil Appeals of Alabama, 1992)

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Bluebook (online)
658 So. 2d 462, 1994 Ala. Civ. App. LEXIS 357, 1994 WL 391227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormack-v-state-ex-rel-baker-alacivapp-1994.