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12/16/94 ROSS HAVARD v. JOLEE HAVARD

December 16, 1994

ROSS HAVARD
v.
JOLEE HAVARD



Appeal from Baldwin Circuit Court. (DR-90-001.02). James Reid, TRIAL JUDGE.

Released for Publication March 25, 1995.

Robertson, Presiding Judge. Thigpen and Yates, JJ., concur.

The opinion of the court was delivered by: Robertson

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 arrears in the amount of $1,108 plus interest; that the father was required to pay 75% of all the uninsured prescription drug, medical, and dental expenses incurred by the parties' minor children; and that the father owed the mother $2,133.69 plus interest, $1,710.44 awarded in the divorce judgment, and $423.35 awarded in a subsequent judgment for medical expenses that the minor children had incurred.

On 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 counterpetition, requesting that the trial court modify the divorce 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 February 4, 1994, the father filed a motion to have a guardian ad litem appointed for Wren. On February 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 discovery and a motion to shorten the time for responding to his motion for discovery; both motions were granted.

Following 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 75% 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 palpable 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, ...


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