from Jefferson Circuit Court, Bessemer Division
Joe Green ("the mother") and Stephen Kerry Green
("the father") are the divorced parents of a son
("the child") who was born in September 2007. In
the parties' 2009 divorce judgment, the Jefferson Circuit
Court, Bessemer Division, incorporated an agreement of the
parties and awarded the "care, custody, and
control" of the child to the mother. It awarded the
father visitation and ordered him to pay certain expenses
"in lieu of paying child support." The agreement
provided that the parties could not have overnight guests of
the opposite sex during custodial periods.
record contains an October 4, 2016, modification judgment
that includes a determination that the father had accrued a
$1, 000 "child-support arrearage, " which
apparently resulted from the father's failure to pay
certain expenses he had been ordered to pay in lieu of child
support, and ordered the father to begin paying the mother
$361 per month in child support. The modification judgment
did not modify the child's custody and left "all
other provisions of the divorce judgment in full force and
effect, " with the exception of one provision that is
not relevant to this appeal.
November 17, 2016, the father initiated another modification
action. The father complained that the mother had notified
him that, in violation of the terms of the divorce judgment,
she and the child were moving in with a man. The father
requested an award of "primary" physical custody of
the child. The mother filed an answer in which she asserted,
among other things, that she was not violating the terms of
the divorce judgment because, she argued, she was in a
common-law marriage relationship with the man. The father
filed an amended complaint seeking an emergency hearing, in
which he asserted that the mother and the child had moved
into the man's house, that the mother had enrolled the
child in a new school, and that the child did not have his
own bedroom. The circuit court entered orders setting a
hearing and ordering the mother to bring the child to the
circuit court entered a modification judgment on May 12,
2017, finding the mother in contempt based upon its
determination that she and the man were living together
"under the pretense of a common-law marriage."
Regardless, the circuit court concluded that the mother and
the father would "continue to share joint custody"
of the child and included a detailed custody and
visitation schedule, which provides that the child will live
with the mother during the school year, subject to the
father's right to visitation on odd weekends each month,
and that the child will live with the father 8 of 10 weeks
during the summer. The circuit court also provided a
relatively equal holiday-visitation schedule.The circuit court
did not require either party to pay child support and set out
in writing that it had intentionally deviated from the Rule
32, Ala. R. Jud. Admin., child-support guidelines because the
mother and the father were to "jointly share custody and
expenses." The judgment allows each parent to claim the
child as a dependent on his or her income-tax return every
mother filed a timely postjudgment motion, which the circuit
court denied. The mother filed a timely notice of appeal,
seeking our review of whether the circuit court had erred by
not ordering the father to pay child support, by allowing the
father to claim the child as a dependent for income-tax
purposes every other year, and by limiting the mother to a
two-week custodial period in the summers. Notably, the mother
expressly waives any issue on appeal regarding the
award of joint custody of the child. The mother's
appellate brief reads:
"The Order contains a factual error as it incorrectly
implies that the parties shared joint custody of [the child]
prior to the entry of the Order when, in fact, the Mother had
sole custody of [the child]. Be that as it may, the
Mother does not appeal the award of joint custody."
reporter was not present at the modification hearing, and,
thus, there is no transcript of that hearing. Rule 10(d),
Ala. R. App. P., states, in pertinent part: "If no
report of the evidence or proceedings at a hearing or trial
was made, or if a transcript is unavailable, the appellant
may prepare a statement of the evidence or proceedings from
the best available means, including the appellant's
recollection." The mother prepared a statement of the
evidence. Although the father did not file an objection or
any proposed amendments to the mother's statement of the
evidence, as permitted by Rule 10(d), the circuit court
issued its own statement of the evidence, which is included
in the record on appeal. See Rule 10(d)("The
statement, either as approved by the court or as issued by
the court ..., shall be filed with the clerk of the trial
court, who shall include it in the record on appeal.").
The mother filed in this court a motion to strike the circuit
court's statement of the evidence, which we denied.
circuit court's statement of the evidence consists of
five brief paragraphs. The first paragraph provides that the
mother failed to demonstrate the existence of a common-law
marriage, which is not an issue on appeal. The second
"This Court agrees that neither Party timely submitted
[child-support] forms; however, the [father] filed a CS-41
form on April 24, 2017, after trial, which the Court did not
consider. This Court agrees [that the father] resides in his
parents' home. Evidence was not presented to the Court
with respect to payment of [the father's] bills."
third paragraph provides that a certain witness's
testimony was not relevant to the issue of child support. The
fourth paragraph indicates that the child testified in
camera. The final paragraph provides a short summary of
evidence presented regarding a gun collection, which is not a
subject of this appeal. Our review of the issues presented is
limited by the brevity of the statement of evidence.
the mother argues that the circuit court abused its
discretion by not ordering the father to pay child support.
Matters related to child support, including 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, 507 (Ala. Civ.
with Rule 32(E)[, Ala. R. Jud. Admin., requiring the filing
of certain child-support forms, ] is mandatory, even though
the trial court may find that the application of the
[child-support] guidelines would be unjust or
inequitable."'" DeYoung v. DeYoung,
853 So.2d 967, 970 (Ala. Civ. App. 2002) (quoting M.S.H.
v. C.A.H., 829 So.2d 164, 169 (Ala. Civ. App. 2002),
quoting in turn Thomas v. Norman, 766 So.2d 857, 859
(Ala. Civ. App. 2000)). "Rule 32(A)(1)(a), Ala. R. Jud.
Admin., provides that a trial court may, in its discretion,
deviate from the child-support guidelines under certain
circumstances. Shared physical custody is a recognized basis
for such a deviation." Shewbart v. Shewbart, 19
So.3d 223, 230-31 (Ala. Civ. App. 2009). Pursuant to Rule
32(A)(1)(a), a trial court has the discretion, in a case in
which joint physical custody is awarded, to not award child
support based on the particular circumstances of the case.
See, e.g., Bonner v. Bonner, 170
So.3d 697, 701, 705 (Ala. Civ. App. 2015)(affirming a
judgment that did not award child support when the parties
were to exercise equal custodial periods with the child).
However, even when a trial court states its reasons for
deviating from the child-support guidelines, the decision to
deviate is still subject to review to determine whether the
deviation is justified by the particular circumstances of
that case. See, e.g., State ex rel.
O'Neal v. Jones, 646 So.2d 150, 151 (Ala. Civ. App.
1994)(reversing trial court's judgment deviating from the
child-support guidelines due to the court's providing an
insufficient reason for the deviation). We "'cannot
affirm a child-support order if [we have] to guess at what
facts the trial court found in order to enter the support
order it entered....'" Willis v. Willis, 45
So.3d 347, 349 (Ala. Civ. App. 2010)(quoting Mosley v.
Mosley, 747 So.2d 894, 898 (Ala. Civ. App. 1999)). In
this case, pursuant to the May 12, 2017, modification
judgment under review, the child lives with the mother for
substantially longer periods than he lives with the father.
Although a deviation from the child-support guidelines would
be permissible in this case, by going so ...