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Collins v. O'Neil

Alabama Court of Civil Appeals

January 27, 2017

Lauren Adelle Collins
Brian Patrick O'Neil

         Appeal from Lee Circuit Court (DR-11-900151.01)

          MOORE, Judge.

         Lauren Adelle Collins ("the mother") appeals from a judgment entered by the Lee Circuit Court ("the trial court") to the extent that it modified the child-support obligation of Brian Patrick O'Neil ("the father"); ordered the father's child-support obligation abated during his six-week summer visitation with the parties' three minor children ("the children"); declined to allow the mother any visitation with the children during the father's six-week summer-visitation period; declined to award interest on the father's child-support arrearage; and declined to hold the father in contempt for failure to pay child support. We affirm the trial court's judgment in part and reverse it in part.

         Background and Procedural History

         On September 25, 2012, the parties were divorced by a judgment of the trial court, which incorporated an agreement of the parties. The mother was awarded sole physical custody of the children and the father was awarded visitation every other week from Friday until the following Wednesday, as well as certain holiday and summer visitation. The father was ordered to pay $1, 191.67 in monthly child support and to maintain the children on his health-insurance plan. The parties were to split the children's child-care expenses.

         At the time of the divorce, both parties were living in New Market; however, in May 2013, the mother moved to Tennessee and the father moved to Georgia. The father subsequently moved from Georgia to Auburn. Because of the logistics of travel between the parties' residences, the parties negotiated an amended settlement agreement, which provided that the husband would have visitation with the children every other weekend and every other week during the summer, that the mother would meet the father halfway between their residences for visitation purposes, that the mother would be responsible for the children's health-insurance premiums and child-care expenses during the school year, and that the father's child-support obligation would increase to $1, 950 per month. The evidence indicated that the father had signed the amended settlement agreement and had had it delivered to the mother for her to sign and to file with the trial court; the mother, however, never signed the amended settlement agreement, and it was never filed. The mother testified that that failure had been an oversight on her part. The father did not find out that the amended settlement agreement had not been filed until May 2014. It was undisputed that the parties began operating under the amended settlement agreement in the summer of 2013 and that they continued to abide by the terms of the amended settlement agreement for the remainder of 2013 and the entirety of 2014.

         On September 19, 2014, the father filed a petition for modification of, among other things, his child-support obligation and his visitation with the children. On October 24, 2014, the mother filed an answer and a counterclaim seeking to hold the father in contempt for failure to pay child support. On December 18, 2014, the father filed a reply to the counterclaim.

         The mother contended that, in January 2015, the father had been delinquent on his child-support obligation and that, therefore, she had refused to meet him halfway for his visitation. The father stopped paying child support altogether in May 2015. He testified that, per the advice of his attorney, he believed that, because the amended settlement agreement had not been approved by the trial court, that agreement was void and, therefore, he was entitled to a credit for overpayment of child support.

         After a trial, the trial court entered a judgment on February 9, 2016, adopting the amended settlement agreement of the parties and concluding that the father had accrued a child-support arrearage from May 2015 through January 2016 in the amount of $ 16, 575.00.[1] The trial court modified the father's child-support obligation from the date of the judgment forward to $928.56 per month. The trial court also modified the father's visitation to include six consecutive weeks of summer visitation.

         On February 15, 2016, the mother filed a postjudgment motion. The father filed a postjudgment motion on February 23, 2016. On April 14, 2015, the mother filed an amended postjudgment motion. After a hearing, the trial court entered an amended judgment providing, among other things, that, during the father's six-week summer-visitation period, he would not be required to pay child support but would be responsible for the children's child-care expenses during that period. On June 8, 2016, the mother filed her notice of appeal.



         On appeal, the mother first argues that the trial court erred in not including all the father's income in calculating his child-support obligation. She notes that, although the father claimed that his monthly income was anywhere between $2, 400 and $2, 895.90, his annual deposits into his bank account were $70, 678.21 for 2013, $60, 181.66 for 2014, and $21, 423.56 for the first 3 months of 2015. Neither party presented evidence of the nature of each and every deposit.

         The mother relies on Chunn v. Chunn, 183 So.3d 985, 992 (Ala. Civ. App. 2015), and argues that, because the father failed to explain the deposits made into his bank account, the trial court was bound to accept those deposits as his true income for child-support purposes. 183 So.3d at 991-98. In Chunn, the father in that case appealed from a judgment determining his child-support obligation, and, on appeal, he contended that the trial court had improperly considered unexplained deposits made into his account as income. Id. This court concluded, however, ...

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