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Larue v. Patterson

Alabama Court of Civil Appeals

September 5, 2014

Brandon Larue
v.
Serena Patterson

Released for Publication May 15, 2015.

Appeal from Marshall Circuit Court. (DR-10-228.01). Howard G. Hawk, Trial Judge.

For Appellant: Dave Beuoy, Burke, Beuoy & Maze, PC, Arab.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur. Thomas, J., concurs specially.

OPINION

Page 357

PER CURIAM.

Brandon Larue (" the father" ) and Serena Patterson (" the mother" ) were married on March 11, 2004; there are two children of the marriage. In 2010, the Marshall Circuit Court entered a judgment divorcing the parties. By incorporation of the agreement of the parties, the circuit court awarded the parties " joint legal and physical custody," awarded the mother primary physical custody, and awarded the father visitation; the circuit court ordered the father to pay child support.

In December 2011, the mother relocated the children to Murfreesboro, Tennessee. On December 30, 2011, the father filed an objection to the relocation and a petition for a modification of the divorce judgment. The father alleged that the mother had relocated with the children without providing notice as required by Alabama Parent-Child Relationship Protection Act (" the Act" ), codified at § 30-3-160 et seq., Ala. Code 1975. He requested various forms of relief, including a finding of contempt against the mother. On February 20, 2012, the mother filed an answer to the father's petition in which she admitted that she had relocated the children. She filed a counterclaim and a motion for contempt in which she alleged, among other things, that the father was in arrears on his child-support obligation.

The circuit court conducted a trial on September 25, 2012, and, on September 27, 2012, it entered a judgment, which neither modified the children's custody nor specifically addressed the Act; however, it impliedly sanctioned the children's relocation because the mother remained the primary physical custodian. The circuit court ordered the father to pay the modified amount of $519.93 per month in child support and an additional $100 per month toward his alleged child-support arrearage " until the arrearage [was] eliminated." It denied all other requested relief.

The father filed a motion requesting a new trial or an amended judgment in which he asserted that the circuit court had failed to properly consider the requirements of the Act. Specifically, the father argued that the circuit court had

Page 358

erred by determining that the mother had overcome the rebuttable presumption that a change of principal residence is not in the best interest of the children because, he argued, she had failed to address the issue at the trial. The father also argued that the circuit court had erred by failing to include a determination of the total amount of his alleged child-support arrearage.

The circuit court conducted a hearing, and, on January 16, 2013, it denied the father's postjudgment motion.[1] The father filed a notice of appeal on February 20, 2013. That appeal was assigned case no. 2120413. On August 1, 2013, this court reinvested the circuit court with jurisdiction to enter a judgment determining the total amount of the father's alleged child-support arrearage. On August 20, 2013, the circuit court entered an order requiring the parties to " submit their position[s] on the pending child support arrearage." The father filed a response to the circuit court's order; the mother failed to file a response. On September 5, 2013, this court dismissed case no. 2120413 as having been taken from a nonfinal judgment. See Larue v. Patterson, (No. 2120413, Sept. 5, 2013) So.3d (Ala.Civ.App. 2013)(table).

On November 22, 2013, the father filed a motion requesting a trial to determine the amount of his alleged child-support arrearage. After a hearing at which the mother failed to appear, the circuit court entered a judgment on March 19, 2014.[2] The circuit court " set aside and rendered null and void" that portion of the September 27, 2012, judgment that had required the father to repay his alleged child-support arrearage because the mother had failed to present evidence demonstrating the existence of the alleged arrearage. All other portions of the September 27, 2012, judgment remained unchanged. On April 25, 2014, the father filed a timely notice of appeal; the current appeal had been assigned case no. 2130633.[3]

The father seeks our review of whether the circuit court failed to properly consider the requirements of the Act. The mother has not favored this court with an appellate brief.

" '[Alabama's Parent--Child Relationship Protection] Act does not require the trial court to make specific findings of fact in its judgment, see Clements v. Clements,906 So.2d 952, 957 (Ala.Civ.App. 2005), and, in the absence of specific findings of fact, " 'this court must assume that the trial court made those findings necessary to support its ...

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