Robbins v. Payne, 2100427 (ala.civ.app. 11-4-2011)

84 So. 3d 136, 2011 WL 5252564, 2011 Ala. Civ. App. LEXIS 292
CourtCourt of Civil Appeals of Alabama
DecidedNovember 4, 2011
Docket2100427
StatusPublished
Cited by5 cases

This text of 84 So. 3d 136 (Robbins v. Payne, 2100427 (ala.civ.app. 11-4-2011)) 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
Robbins v. Payne, 2100427 (ala.civ.app. 11-4-2011), 84 So. 3d 136, 2011 WL 5252564, 2011 Ala. Civ. App. LEXIS 292 (Ala. Ct. App. 2011).

Opinion

THOMPSON, Presiding Judge.

Christy Lee Payne Robbins (“the mother”) appeals from a judgment of the Montgomery Circuit Court that, among other things, awarded Christopher Mark Payne (“the father”) an attorney fee of $4,500. For the reasons set forth herein, we reverse the award of the attorney fee and remand the cause for the entry of a judgment consistent with this opinion.

The parties were married in 1989. Two children were born of the marriage. The parties were divorced by a judgment of the trial court on December 30, 2005. As subsequently amended, the divorce judgment awarded the parties joint legal custody of the children, awarded the father primary physical custody of the children, and awarded the mother visitation with the children, including a two-month period of visitation with the children over the summer. The divorce judgment required each party to pay one-half of all medical and dental expenses of the children not covered by insurance. The judgment awarded the father child support of $1,385 monthly.

In December 2008, the mother filed a petition to temporarily suspend her child-support obligation and to modify her child-support obligation. She asserted that she had lost her job, and she sought an immediate suspension of her child-support obligation so that she would not be held in contempt of court for failure to pay child support and so that a child-support arrear-age would not accrue. She stated that she was actively attempting to secure new employment. On January 22, 2009, the mother filed a suggestion of bankruptcy with the trial court.

On April 10, 2009, the trial court entered a judgment granting the mother’s petition to modify her child-support obligation. The court noted that the mother had obtained new employment but was earning substantially less than she had been earning at her former employment. The trial court ordered the mother to pay monthly child support of $365.

On April 22, 2010, the father filed a petition to modify the mother’s child-support obligation, asserting that there had been a material change in circumstances warranting an increase in child support. As part of his action, the father sought an award of an attorney fee. On July 28, 2010, the trial court held a bench trial on the father’s petition. At the hearing, evidence was presented indicating that the mother’s income had increased substantially since the entry of the April 10, 2009, judgment. Evidence was also presented relative to the father’s attorney-fee request, as was evidence indicating that the mother had not reimbursed the father for certain of the children’s expenses for which she bore half of the financial responsibility.

On October 7, 2010, the trial court entered a judgment in which it found that the mother’s income had increased to $4,002.39 per month, which was slightly more than the father’s monthly income. The trial court increased the mother’s child-support obligation to $722 monthly, retroactive to the filing of the father’s petition. The trial court also ordered the mother to reimburse the father $2,443.48, representing one-half of medical and extracurricular expenses the father had incurred on behalf of the children in 2008, [138]*1382009, and 2010. With regard to the father’s request for an attorney fee, the trial court wrote:

“The [father] testified that in pursuing this matter he has incurred attorney fees and expenses totaling $3,609.88, and requests that the [mother] be ordered to reimburse him for these fees/expenses. In support of his request, the [father] testified that prior to the filing of this action, he, through counsel, requested that the [mother] voluntarily produce a copy of her 2009 tax filings so that he could determine whether an increase in child support may be warranted. The [mother], through counsel, refused to do so. The tax filings were only produced after the filing of this action and pursuant to a formal discovery request submitted to the [mother] by the [father’s counsel. The Court takes particular note of the fact that in refusing to voluntarily produce the tax filings, in an email dated April 22, 2010, counsel for the [mother] represented that: ‘... my client’s income has remained relatively static in 2009; there have been a few commission checks on top of the draws, but nothing very significant.’ While the [mother] is under no legal obligation to voluntarily produce her tax filings, her failure/refusal to comply with this request resulted in increased attorney fees and expenses to the [father].”

The trial court awarded the father an attorney fee of $3,609.88.

Both parties filed motions to alter, amend, or vacate the trial court’s judgment. Among other things, the mother argued that the father had failed to present evidence supporting his request for an attorney fee and that the trial court had considered certain evidence it should not have in awarding the attorney fee. In his postjudgment motion, the father argued that the trial court had not increased the mother’s child-support obligation sufficiently.

On January 6, 2011, the father filed a response to the mother’s postjudgment motion, which included a motion to show cause, requesting that the trial court hold the mother in contempt of court for failing to pay the attorney fee and her share of the children’s expenses within 90 days of the date of the entry of the judgment, as had been required by the judgment. The father sought an additional award of an attorney fee and expenses incurred in pursuing his show-cause motion.

On January 31, 2011, the trial court entered a judgment disposing of the post-judgment motions in which, among other things, it set the mother’s child-support obligation at $601.02 per month, to be paid 12 months of the year, and denied the father’s motion to hold the mother in contempt of court. As to the award of an attorney fee and costs to the father, the trial court wrote:

“The [mother] requests that this Court vacate the award of attorney fees to the [father] on a variety of grounds. The Court notes that it has the authority to grant an award of fees on the modification petition filed by the [father], and further notes that all relevant factors set out by law for making the award were considered. The Court finds that an award of attorney fees/costs is appropriate in this case.
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“4. The prior award of attorney fees to the [father] is hereby vacated. The [father] is hereby awarded the sum of $4,500 as attorney fees/costs incurred in pursuit of the original modification petition and his postjudgment show cause motion.”

The mother appeals.

On appeal, the mother contends that, in awarding an attorney fee, the trial court [139]*139improperly considered electronic-mail (“email”) communications between the parties’ attorneys that occurred before the father filed his modification petition. She argues that those communications constituted “some sort of settlement discussions and/or negotiations and would have never been appropriate for the trial court to consider.”

The e-mail communications the father offered into evidence at the trial appear to involve the father’s attorney’s attempt to obtain the mother’s tax returns in order to determine whether the father should file a petition to increase the mother’s child-support obligation.1 The father offered those communications into evidence as part of his request for an attorney fee.

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Bluebook (online)
84 So. 3d 136, 2011 WL 5252564, 2011 Ala. Civ. App. LEXIS 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robbins-v-payne-2100427-alacivapp-11-4-2011-alacivapp-2011.