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Farquhar v. Farquhar

Alabama Court of Civil Appeals

July 31, 2015

Loren A. Farquhar
v.
Christopher L. Farquhar

         Released for Publication April 28, 2016.

          Appeal from Montgomery Circuit Court. (DR-11-333.01). Anita L. Kelley, Trial Judge.

         DONALDSON, Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

          OPINION

          DONALDSON, Judge.

         Loren A. Farquhar (" the mother" ) appeals from a judgment of the Montgomery Circuit Court (" the trial court" ) modifying the child-support obligation of Christopher L. Farquhar (" the father" ) and calculating an arrearage amount owed by the father. We reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.

         The parties were divorced by a 2011 judgment entered by the trial court. That judgment directed the father to pay the mother $1,050 per month as child support for their two minor daughters. On December 19, 2012, the mother filed a petition in the trial court seeking the entry of an income-withholding order and an order holding the father in contempt for his child-support arrearage. The mother attached a Form CS-41 Child-Support-Obligation Income Statement/Affidavit (" CS-41 income affidavit" ) to her motion. On January 22, 2013, the trial court entered an order directing the father to appear and show cause why the mother's motion for the entry of the income-withholding order should not be granted. After the father did not respond to the trial court's order, the trial court entered an income-withholding order on February 26, 2013.

         On August 8, 2013, a hearing was held on the mother's petition for contempt. Both parties were present at the hearing and testified. The father did not submit a CS-41 income affidavit. On August 20, 2013, the mother filed a motion to substitute an amended CS-41 income affidavit to correct a miscalculation of the cost of

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monthly healthinsurance premiums she was paying for the children. On August 29, 2014, the trial court entered a judgment finding the father in contempt for failing to pay child support as had been ordered. The trial court determined the father's total arrearage to be $12,782.24, after allowing for various credits. The trial court also awarded interest on the arrearage, but it did not calculate the amount of that interest. The trial court further ordered that, effective August 9, 2013, the father's child-support obligation would be $704.55 per month, and it ordered the father to pay an additional $95.45 per month toward the child-support arrearage. The trial court's judgment did not include as appendices or incorporate by reference a CS-42 Child-Support Guidelines form or a CS-41 income affidavit from either party. The mother filed a timely notice of appeal.

         We initially determined that the judgment was not final because it did not award a sum-certain interest amount. See Swindle v. Swindle, 157 So.3d 983, 989 n.3 (Ala.Civ.App. 2014). On June 24, 2015, we remanded the case by order to the trial court for 14 days for it to adjudicate the amount of interest. On July 7, 2015, on remand, the trial court entered an order (" the amended order" ) finding as follows:

" [T]his Court reviewed the record to ascertain dates when payments were made by the Defendant/Father to the Mother to calculate interest due on each installment from its due date. This calculation could not be done, as the Father testified to 'lots' of direct payments to the Mother, but did not specify dates when payments were made. Notwithstanding the same, the Court credited the testimony of the Father.[1] The undersigned further notes that this testimony of 'lots' of direct payments to the Mother was not disputed by the Mother.
" The Mother asserts that she is due interest in the amount of $965.75. The Father did not dispute the same. As the Court reviewed Mother's Exhibit one, and finds no obvious error, interest is ordered in the amount of $965.75.

         The mother raises three issues on appeal: 1) whether the trial court erred by modifying the father's child-support obligation without complying with Rule 32(E), Ala. R. Jud. Admin.; 2) whether the trial court exceeded its discretion by failing to impute additional income to the father; and 3) whether the trial court exceeded its discretion by calculating an arrearage amount that is unsupported by the evidence and by failing to award a sum certain in interest on that arrearage.

         The mother first argues that the trial court erred in modifying the father's child-support obligation without complying with Rule 32(E), Ala. R. ...


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