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D.W. v. W.C.

Alabama Court of Civil Appeals

July 27, 2018

D.W.
v.
W.C.

          Appeal from Montgomery Circuit Court (DR-17-405)

          MOORE, JUDGE.

         D.W. ("the mother") appeals from a judgment entered by the Montgomery Circuit Court ("the trial court") to the extent that it awarded W.C. ("the father") visitation with B.W. ("the child"), whose date of birth is May 26, 2016, and determined the father's child-support obligation. We affirm the judgment in part and reverse it in part.

         Procedural History

         On May 18, 2017, the mother filed a complaint seeking a judgment awarding her custody of the child and requiring the father to pay child support. The father subsequently filed a letter responding to the mother's complaint; the father asserted that he should be awarded joint custody of, and visitation with, the child.

         After an October 18, 2017, trial, the trial court entered a judgment that same day declaring that the father is the father of the child, awarding the parties joint legal custody of the child, awarding the mother sole physical custody of the child, awarding the father visitation with the child, and ordering the father to pay $509.28 per month in child support. With regard to child support, the trial court specifically stated:

"That the award of child support made herein was determined by application of the Child Support Guidelines established by Rule 32, Alabama Rules of Judicial Administration. The Child Support Guidelines (CS-42) and the Child Support Obligation Income Affidavit (CS-41) forms have been filed herein and are made a part of the record in this case. The said child support amount is not in compliance with the guidelines and is a downward deviation. The Father has two other minor children residing with him who he provides and cares for."

         On October 31, 2017, the mother filed a postjudgment motion. She withdrew that motion on November 1, 2017, and subsequently filed a new postjudgment motion on November 15, 2017. On November 17, 2017, the mother filed a notice of appeal; that notice of appeal was held in abeyance until February 5, 2018, when the trial court entered an order disposing of the mother's postjudgment motion.

         Facts

         The mother and the father were never married to one another. At the time the child was conceived, the father was married but was living separately from his wife. The father had subsequently reconciled with his wife, and they remained married at the time of the trial.

         The mother has an older child in addition to the child. The father and his wife have two children together; one of those children is older than the child, and the other is younger. The younger of the father and his wife's children was born prematurely.

         The evidence indicated that the mother had allowed the father to visit the child at her house and that the father had provided some support for the child. Approximately one month before the mother filed her complaint, the mother and the father had had an argument, and the father had not visited or provided support since that time.

         The father submitted a Form CS-41 "Child-Support-Obligation Income Statement/Affidavit" indicating that he earns $2, 581 per month. The mother submitted a Form CS-41 indicating that she earns $1, 440 per month and that she incurs day-care costs for the child in the amount of $440 per month. The trial court completed a CS-42 form using those figures. The calculations on that form resulted in the father's monthly child-support obligation being $709.28.

         The father testified that he earns $14.91 per hour and that he earns overtime pay once or twice per month. His most recent pay stub for the week of October 2 through October 9, 2017, was introduced into evidence. That pay stub indicated that his hourly salary is $14.90, that his gross salary for the period October 2 through October 9 was $619.18, and that his year-to-date gross salary was $31, 798.69. The father testified that his wife does not work, that she is in school, and that she had been taking care of their youngest child. He testified that his monthly expenses include $800 for rent, $375 for utilities, $80 for diapers for his youngest child, $135 for ...


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