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Tolbert v. Tolbert

Alabama Court of Civil Appeals

March 2, 2018

Judith M. Tolbert
Damon G. Tolbert

         Appeal from Madison Circuit Court DR-13-901139.01


         Judith M. Tolbert ("the mother") appeals from a judgment of the Madison Circuit Court ("the trial court") denying her request for a modification of custody and child support.[1] In response to the mother's complaint, Damon G. Tolbert ("the father") filed a counterclaim in which he, too, sought a modification of custody and child support. The trial court denied the father's request as well.

         The record indicates the following evidence relevant to the issues on appeal. On January 6, 2014, the trial court entered a judgment divorcing the parties and incorporating a settlement agreement ("the agreement") they had reached. At the time of the divorce, the parties had four minor children. The agreement provided that the parties

"shall exercise joint legal and joint physical custody of the minor children, with primary physical custody vested in the [mother]. The parties shall exercise periods of visitation at any and all times agreed upon by both parties; however, if the parties cannot agree, the [father] shall exercise visitation based upon this Court's Standard Visitation Schedule, attached hereto as Exhibit A.
"The parties agree that no child support shall be paid from one to the other based upon the joint custodial arrangement and the liberal visitation agreement; however, both parties agree to be responsible for one half of any particular child's expenses. Whenever one of the parties shall incur an expense related to a child's extracurricular expenses, [the other] party shall pay half of the expense within thirty (30) days of receipt of the expense. The [father] agrees to be responsible for the clothing and essentials of [the first-born child and the third-born child]."

         The parties further agreed that the father would be responsible for obtaining and maintaining the children's health insurance and that each party would equally divide health and dental costs incurred by the children that were not covered by insurance.

         At the hearing on the parties' respective modification requests, the mother testified that, "verbally, we agreed that we would each have the kids the same amount of time; and if at one point we couldn't agree, we would go back to standardized visitation." At the time the agreement was reached, the mother said, the father lived within four miles of the mother. About six months after the parties divorced, the father moved from Madison County to Hartselle, where his then girlfriend lived. That woman and the father have since married, and the father continues to reside in Hartselle. The mother said that the father's house is about 45 minutes from her house.

         At first, the parties alternated custody of the children weekly. After the father moved to Hartselle, the mother said, when the children stayed with the father, they were often late for school. That, the mother said, is when she made the decision to implement the default standard-visitation schedule. The father testified that he had not wanted to end the alternating, weekly custody arrangement and that the mother unilaterally made the decision to do so. Nonetheless, at the time of the modification hearing, the parties had been adhering to the standard-visitation schedule for approximately three and one-half years. The mother testified that that schedule was working well. The standard-visitation schedule allowed the children to spend Wednesday nights with the father. The mother acknowledged that, in the six months before the modification hearing, the children had not been late for school after staying with the father on Wednesday nights.

         The oldest child had reached the age of majority and appeared to be living independently. The father said that he had not seen the oldest child in three years and had not purchased any clothing or other items for her during that time. We note that there is nothing in the record to indicate that the mother was providing support to the oldest child. The father picked up the eldest minor child from school every day and took that child to the mother's office. The father also took the minor children (hereinafter referred to collectively as "the children") to softball practice in Hartselle and to softball tournaments on the weekends. One of the children testified that, except for softball, none of the children were involved in extracurricular activities. The mother said that the father has been available to pick up the children if they become sick at school. The father attended field trips with the youngest child. The mother acknowledged that the father was active with the children.

         Regarding financial support of the children, the mother testified that she had not reimbursed the father for her share of any of the children's expenses while they were playing softball, including registration fees, the costs of their uniforms, and "participation" expenses. At the modification hearing, the mother testified that she had not agreed to register the children to play softball in Hartselle and that she had told the father that, because of her work schedule, she would not be able to take them to practice. She acknowledged that there is not a softball team available for the children near her house.

         The mother also testified that she had not reimbursed the father for her share of the expenses for the children's field trips for which the father had paid or for the medical copays he had paid. The mother said that the father had not provided her with receipts for which he sought reimbursement and that, by the same token, she had not provided the father with any receipts for expenses for which she could have been reimbursed. The father echoed the mother's testimony, and it appears that each parent paid for items for the children as needed and neither sought reimbursement from the other. The father acknowledged that the mother probably bought more clothes for the children, but, he said, he bought them clothes or shoes when they asked him for something. However, the father said that he had not paid anything in the way of support to the mother because, he said, she had neither asked him for money nor let him know she needed additional money.

         When asked what the change in circumstances was that prompted her to seek a modification of the child-support arrangement, the mother said: "Groceries increased, clothing costs, activities for them to do, daycare costs--just, you know, the costs of raising daughters." Other than pointing out that the eldest minor child would have to have automobile insurance when she begins driving, the mother did not provide the court with any specific cost increases that it could consider. The mother said that, when she entered into the agreement, she believed the children would be spending more time with the father.

         The trial court entered a judgment on March 21, 2017, denying both parties' requests for a modification of the custody and child-support arrangement the parties had reached in their agreement. The mother filed a postjudgment motion, which was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. The mother then filed ...

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