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Tanner v. Tanner

Alabama Court of Civil Appeals

June 23, 2017

Roxanne Michelle Tanner
v.
Justin Clay Tanner

         Appeal from Mobile Circuit Court (DR-04-501637.11 and DR-04-501637.12)

          MOORE, Judge.

         Roxanne Michelle Tanner ("the mother") appeals from judgments entered by the Mobile Circuit Court ("the trial court") that, among other things, require her visitation with her son, M.C.T. ("the son"), to be supervised, denied her request to modify her child-support obligation to Justin Clay Tanner ("the father"), and ordered her to pay a portion of the fees of the son's guardian ad litem. We affirm the judgments in part, reverse the judgments in part, and remand the causes for further proceedings.

         Procedural History

         The parties were divorced by a judgment entered by the trial court in 2004; pursuant to that judgment, the mother was awarded sole physical custody of the son and the parties' daughter, V.T. ("the daughter"). Through a series of postdivorce proceedings, the divorce judgment was modified so that the father obtained sole physical custody of the son and the daughter, the mother was ordered to pay $320 per month in child support, the mother was allowed visitation with the daughter at the daughter's discretion, and the mother was allowed visitation with the son under the supervision of the mother's current husband.

         On December 22, 2014, the father filed a petition, assigned case number DR-04-501637.11, requesting that the trial court suspend, terminate, or restrict the mother's visitation; he also requested that the mother be held in contempt of court for her failure to pay child support. The mother answered and asserted a counterclaim, requesting that the trial court hold the father in contempt for his failure to allow her to visit with the son. At the father's request, a guardian ad litem was appointed to represent the interests of the son, who is a child with special needs. On November 9, 2015, the mother filed a petition, assigned case number DR-04-501637.12, seeking sole physical custody of the son and the daughter on an emergency basis.[1]

         The trial court conducted a consolidated trial. During the trial, the mother requested that the trial court reduce her child-support obligation. On May 31, 2016, the trial court entered separate, but identical, judgments in both cases. Among other things, the judgments denied the mother's request to reduce her child-support obligation, awarded the father a judgment against the mother in the amount of $5, 911 for her child-support arrearage, and required the mother's visitation with the son to be supervised at the Family Center in Mobile for at least six months and provided that, if the visitation is without incident during that six-month period, future visitation can be supervised by the mother's current husband. On June 1, 2016, the trial court entered separate, but identical, orders in both cases, requiring that the father pay $500 of the guardian ad litem's fees and that the mother pay the remaining $1, 400 of those fees.

         On June 30, 2016, the mother filed a postjudgment motion in both cases. On September 26, 2016, the trial court entered separate, but identical, orders in both cases allowing the mother to "deduct ½ of the cost of visitation from her child support" and providing that "[t]he father will not have to come 'out of pocket' for the visitation so long as he is owed child support arrearages." All other claims for relief were denied. On November 3, 2016, the mother filed her notice of appeal.

         Discussion

         I.

         On appeal, the mother first argues that the trial court erred by requiring that her visitation with the son be supervised at the Family Center because, she says, that requirement would be cost-prohibitive to the mother.[2] We note, however, that the mother failed to present any evidence of the cost of having her visitation supervised at the Family Center. Instead, in her unverified postjudgment motion, she simply made an assertion as to the cost of visitation without providing any supporting authority. "'[S]tatements or arguments ... made in a motion do not constitute evidence.'" Guthrie v. Alabama Dep't of Labor, 160 So.3d 815, 818-19 (Ala. Civ. App. 2014) (declining to consider allegations made in unverified postjudgment motion) (quoting Griffin v. Griffin, 159 So.3d 67, 70 (Ala. Civ. App. 2014)). Because the mother's argument is not supported by evidence in the record, Guthrie, supra, we decline to reverse the trial court's judgment, entered in case number DR-04-501637.11, on this point.

         II.

         The mother next argues that the trial court erred in declining to reduce her child-support obligation. Rule 32(E), Ala. R. Jud. Adm., provides, in pertinent part:

"A standardized Child-Support Guidelines form (Form CS-42 as appended to this rule) and a Child-Support-Obligation Income Statement/Affidavit form (Form CS-41 as appended to this rule) shall be filed in each action to establish or modify child-support obligations and shall be of record and shall be deemed to be ...

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