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10/07/94 DEBORAH ALLSUP v. STATE ALABAMA EX REL.

October 7, 1994

DEBORAH ALLSUP
v.
STATE OF ALABAMA EX REL. J.C. SALAS



Appeals from St. Clair Circuit Court. (DR-93-224). William E. Hereford, TRIAL JUDGE.

Released for Publication December 7, 1994.

Thigpen, Robertson, Yates

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

These consolidated appeals involve the Uniform Reciprocal Enforcement of Support Act (URESA). Ala. Code 1975, § 30-4-80 et seq.

Deborah Allsup (mother) and J.C. Salas (father) divorced in Florida in October 1983. The divorce judgment provided that the parties were to have "shared parental responsibility" of their two minor children, with the mother having their primary residence and the father having "liberal visitation rights." The parties stipulated that the father had actual and legal custody of the children at the time of these proceedings, and that pursuant to a Florida modification order, the mother was to pay child support. In May 1993, the father initiated URESA proceedings in New Jersey, alleging that the mother was in arrears in her support obligation. Based upon the mother's residency in St. Clair County, Alabama, the father's petition was forwarded to the St. Clair County District Court. The mother filed an answer and a counterclaim, seeking custody of her children.

In August 1993, the mother filed a motion to transfer the action to the circuit court, alleging that the district court did not have jurisdiction to adjudicate all relevant issues, specifically her counterclaim for a change of custody. The mother's motion was granted. In September 1993, the father filed a motion to dismiss the mother's counterclaim.

The issues were submitted to the trial court on stipulated facts. In November 1993, the trial court entered an order which, in pertinent part, stated:

"1. [Judgment] is hereby rendered in favor of the [father] and against the [mother] in the amount of $1,750.00 as of February 16, 1993.

"2. The [mother] is hereby ordered by this Court to pay the sum of $633.00 per month commencing on December 10, 1993 for the current support and maintenance of the said minor children . . . and in addition, the [mother] is to pay $10.00 per month toward the stated arrearage of $1750.00 for a total amount of $643.00 per month. Said amount being derived in accordance with child support guidelines, a copy of which has heretofore been filed with this Court."

That order reserved ruling on the mother's counterclaim for custody.

The mother appealed from that order. In January 1994, the trial court granted the father's motion to dismiss the mother's counterclaim, and the mother appealed. On the mother's motion, the appeals were consolidated.

We first note that when a case is presented on stipulated facts, the ore tenus rule is inapplicable and this court must determine whether the trial court properly applied the law to the facts. Burton Manufacturing Co. v. State, 469 So. 2d 620 (Ala. Civ. App. 1985).

First, the mother contends that the trial court erred in dismissing her counterclaim for custody, because, she argues, her counterclaim for custody may ...


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