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Gordon v. Gordon

Alabama Court of Civil Appeals

January 20, 2017

Tandra Gordon
Brian Gordon

         Appeal from Tuscaloosa Circuit Court (DR-10-751.01 and DR-10-751.02)

          THOMAS, Judge.

         Tandra Gordon ("the mother") and Brian Gordon ("the father") are the parents of a child ("the child") born in October 2006. In 2007 the mother began attending medical school in Illinois; the child and the father remained in Alabama. At some point in 2011, the mother graduated from medical school and returned to Alabama to begin a medical-residency program.

         On March 10, 2012, the parties were divorced by a judgment entered by the Tuscaloosa Circuit Court. The circuit court adopted the parties' mediated agreement and, among other things, awarded the parties joint legal custody of the child, named the father as the sole physical custodian, and ordered the mother to pay child support.[1] The father, an assistant professor at the University of Alabama, worked and resided in Tuscaloosa; the mother practiced medicine in the Birmingham area, resided in Birmingham, and leased an apartment in Tuscaloosa to facilitate her visitation with the child.

         In September 2014, the father filed a petition seeking, among other things, a modification of the child's custody and a recalculation of the mother's child-support obligation. The father's action was assigned case number DR-10-751.01 ("the .01 action"). That same month, the mother filed an answer to the father's petition and a counterclaim seeking a modification of the child's custody and a termination of her obligation to pay child support. The mother's action was assigned case number DR-10-751.02 ("the .02 action"). On March 13, 2015, the mother filed a motion seeking, among other things, consolidation of the .01 action and the .02 action. On March 19, 2015, the circuit court entered an order, which provides, in pertinent part:

"It is hereby ORDERED, ADJUDGED and DECREED that [the .01 action] and [the .02 action] shall be consolidated for trial purposes and that all future pleadings shall be filed under DR-10-751.01."

         A trial was held on November 4, 2015, and January 12, 2016. On March 17, 2016, the circuit court entered a judgment, increasing the amount of the mother's child-support obligation and denying her request for a modification of custody upon its express determination that the mother had failed to provide evidence to meet the custody-modification requirements set out in Ex parte McLendon, 455 So.2d 463 (Ala. 1984)("the McLendon standard"); however, the circuit court increased the mother's "parenting time."

         The record reflects that the mother filed her postjudgment motion on Sunday, April 17, 2016.[2] The circuit court held a postjudgment hearing, and, on May 20, 2016, it entered an order in which it amended certain custody-exchange and visitation provisions. On June 8, 2016, the mother filed a timely notice of appeal, seeking this court's review of two issues.[3]

         The Propriety of the Child-Support Modification

         The mother contends that the circuit court erred by increasing her child-support obligation "solely on income and not the needs of the child."

"'Our standard of review in a case involving a modification of a child-support order is well settled. Matters related to child support, including subsequent modifications of a child-support order, rest soundly within the trial court's discretion and will not be disturbed on appeal, absent a showing that the ruling is unsupported by the evidence and thus is plainly and palpably wrong. Berryhill v. Reeves, 705 So.2d 505 (Ala. Civ. App. 1997); Williams v. Braddy, 689 So.2d 154 (Ala. Civ. App. 1996). A child-support award may be modified upon a showing of a material change of circumstances that is substantial and continuing. Id.; State ex rel. Shellhouse v. Bentley, 666 So.2d 517 (Ala. Civ. App. 1995). "Factors indicating a change of circumstances include a material change in the needs, conditions, and circumstances of the child." Id. at 518. The primary consideration in awarding child support is the welfare and best interests of the child. Balfour v. Balfour, 660 So.2d 1015 (Ala. Civ. App. 1995).
"'This court has further held that a trial court is required to determine if a deduction is to be allowed in a monthly child-support obligation based on the fact that health-insurance premiums are being paid on behalf of the child in accordance with Rule 32(B)(7), Ala. R. Jud. Admin. See Jordan v. Jordan, 688 So.2d 839 (Ala. Civ. App. 1997), Kennamore v. State ex rel. Jinnette, 686 So.2d 295 (Ala. Civ. App. 1996).'
"Jackson v. Jackson, 777 So.2d 155, 158 (Ala. Civ. App. 2000)."

Volovecky v. Hoffman, 903 So.2d 844, 847-48 (Ala. Civ. App. 2004).

"Rule 32(A) and (C), Ala. R. Jud. Admin., provide a method for determining the amount of child support according to the parents' combined incomes and a schedule of basic child-support obligations. There is a rebuttable presumption that the amount of child support calculated pursuant to the Rule 32 guidelines is the 'correct amount of child support to be awarded.' Rule 32(A), Ala. R. Jud. Admin."

Batchelor v. Batchelor, 188 So.3d 704, 707 (Ala. Civ. App. 2015).

         The mother had been obligated to pay $678 per month in child support. The parents each submitted a CS-41 Child-Support-Obligation Income Statement/Affidavit form. In its Form CS-42, the circuit court correctly indicates that the father had reported a monthly gross income of $6, 131 and that the mother had reported a monthly gross income of $10, 769.24. After certain deductions, the mother's share of the child-support ...

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