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Jacobs v. Jacobs

Alabama Court of Civil Appeals

December 15, 2017

Wendy Jacobs
v.
Byron Jacobs

         Appeal from Hale Circuit Court (DR-13-900001.01)

          PITTMAN, Judge.

         Wendy Jacobs ("the mother") appeals from a judgment entered by the Hale Circuit Court ("the trial court") in a postdivorce action brought by the mother against Byron Jacobs ("the father"), her former husband. We affirm in part, reverse in part, and remand.

         Facts

         The mother and the father married in 1990 and had four children during their marriage, a set of twins born in 1995 and a set of twins born in 2000. The parties divorced in February 2013. The divorce judgment incorporated an agreement entered into by the parties in January 2013 while the father was incarcerated. The divorce judgment awarded the mother sole physical and legal custody of the parties' four children and provided that the father would have no visitation or any contact whatsoever with the children during their minority. The agreement incorporated into the judgment further provided, in pertinent part:

"5. [The father] is self-employed and his income is variable. However, because of [the father's] actions, [he] presently has no income and has no anticipation of earning any income in the immediate future. Therefore, both parties agree that in lieu of current child support, [the mother] will continue to occupy the [parties'] residence located [in Moundville, Alabama], and [the mother] will continue to pay the mortgage on said property. When the younger children reach the age of majority, or if [the mother] remarries, the property will be listed for sale as soon as possible thereafter and the net proceeds of such sale, less one-half (½) of all payments made by [the mother] for principal, interest, insurance, and ad valorem taxes from October 2012 to the date of such sale, shall be divided between [the mother] and [the father]. [The father] agrees to immediately execute and deliver to [the mother] or her agent any and all documents that may be required to accomplish the intention of this paragraph and shall promptly do all things necessary to that end.
"6. When [the father] is gainfully employed, [he] shall pay to [the mother] an amount to be determined by the court based on the parties' incomes at that time as support for the minor children of the parties, said payments to be by income withholding order upon petition by [the mother] or [the father]. Further, when [the father] is gainfully employed, [the father] is to pay for and keep in force all available medical, optical, and dental insurance on the children during their minority. Additionally the parties agree that each party will pay one-half (½) of all medical, dental, prescription drug, and optical expenses not covered by insurance and one-half (½) of all insurance co-pays, school, and college expenses.
"7. All outstanding indebtedness of both [the mother] and [the father] as of the date of this Agreement will be paid by [the father], and [the father] will hold [the mother] harmless therefrom. ..."

         After being released from jail in May 2013, the father was admitted to an alcohol-abuse-rehabilitation facility and remained there until August 2013. The father then held several jobs in the construction industry. His first job was working for Mike's Framing; that job began on August 30, 2013, and ended in May 2014. He worked full time for Mike's Framing; initially, he was paid $12.50 per hour but that was later increased to $14.25 or $14.50 per hour. After his job with Mike's Framing ended, the father was unemployed for several months while he looked for another job. In late August or early September 2014, the father began working for B&B Construction and was paid approximately $14.75 per hour; however, he lost that job in December 2014 when he was arrested on a charge of domestic violence. He was released from jail in January 2015 and applied to the Social Security Administration for disability benefits in February 2015; however, his application for disability benefits was denied after he accepted a job with Humphrey & Associates, another construction company, in March 2015. He was paid $18 per hour by Humphrey & Associates and worked for that company until he suffered an on-the-job injury in June 2015. The father testified that a load of 14 sheets of drywall had fallen on his leg, breaking his leg and damaging the soft tissue of his leg. He had to have surgery on his leg and received workers' compensation benefits in the amount of approximately $1, 000 per month while he recovered from his injury. Since recovering from his injury, the father has successfully bid as a contractor on several construction jobs but has not held a full-time job. He testified that a second application to the Social Security Administration for disability benefits he had submitted a few months before trial had been denied because he was unable to submit all the necessary documents due to his having been incarcerated at the time.

         After the father became gainfully employed, neither he nor the mother sought an order establishing the amount of his child-support obligation; however, between October 4, 2013, and May 12, 2015, the father made periodic payments to the mother in various amounts and on an irregular basis. The father introduced into evidence documents evidencing payments during that period totaling $10, 300. He did not make any payments to the mother after May 2015.

         When the parties' divorced, they owed approximately $4, 000 on a Visa credit card and owed their bank approximately $250 for an overdraft on their checking account. The father neither paid the debts the parties owed when they divorced nor provided medical, dental, and optical insurance for the children. The mother paid the $250 debt the parties owed their bank for an overdraft and paid approximately $2, 000 of the debt the parties owed on their Visa credit card. In addition, the mother provided the children's medical, dental, and optical insurance. When this action was tried in August 2016, the mother had incurred total costs of $13, 381 to provide the children's insurance. In addition, when this action was tried, the mother had paid a total of approximately $750 in medical expenses incurred for treatment of the children that were not covered by insurance, and the father had not reimbursed her for his one-half share of those expenses.

         The mother testified that, shortly after the divorce, she and the father had agreed that she would assume sole liability for the debt secured by a mortgage on the parties' residence in exchange for the father's conveying his interest in the residence to the mother and that the father had executed a quitclaim deed conveying his interest in the residence to her.

         Procedural History

         In May 2015, the mother filed a petition alleging that, despite his having had several jobs since the entry of the divorce judgment, the father had willfully refused to pay the mother child support on a regular basis; had willfully failed to pay the debts the parties owed when the divorce judgment was entered; had willfully failed to pay for the children's medical, dental, and optical insurance; and had willfully failed to pay one-half of the children's medical, dental, and optical expenses that were not covered by insurance. As relief, the mother sought a judgment finding the father in contempt and modifying the divorce judgment so as to establish the amount of child support the father was required to pay.

         Answering the mother's petition, the father admitted that he had had several jobs since the entry of the divorce judgment; however, he denied her allegations that he had willfully failed to pay his obligations under the divorce judgment.

         After several continuances, the action was tried in August 2016. In October 2016, the trial court entered a judgment. In pertinent part, that judgment states:

"1. The [mother] and [the father] submitted an agreement to this Court in settlement of their then pending divorce case and this Court adopted said Agreement of the Parties as its own order and divorced the parties on or about February 11, 2013.
2. In the parties' agreement the [father] agreed to undertake the following obligations:
"a. The payment of child support.
"b. The payment of medical, optical, and dental insurance of the parties' ...

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