from Mobile Circuit Court (DR-15-900007.01)
THOMPSON, PRESIDING JUDGE.
Bosarge ("the mother") and Richard Gerald Bosarge
II ("the father") were divorced by a December 16,
2015, judgment of the Mobile Circuit Court ("the trial
court"). On March 24, 2016, the father filed a petition
seeking to modify the divorce judgment. The mother later
counterclaimed, also seeking to modify the divorce judgment
and seeking to have the father held in contempt. The trial
court conducted an ore tenus hearing.
November 6, 2017, the trial court entered an order addressing
all of the pending issues except the mother's contempt
claim. On December 4, 2017, the mother filed a purported
postjudgment motion in which she raised legal issues and
arguments pertaining to the sufficiency of the evidence
supporting the trial court's November 6, 2017, order. On
December 13, 2017, the trial court entered a judgment that
modified two provisions of its November 6, 2017, order and
determined that the father was in contempt. That December 13,
2017, judgment constituted the final judgment in this action
because it disposed of the last of the pending claims between
the parties. Stockton v. CKPD Dev. Co., 936 So.2d
1065, 1069-70 (Ala. Civ. App. 2005).
judgment, the trial court, in relevant part, awarded the
father supervised visitation with the child, and it specified
that, if no problems arose with that supervised visitation
after four months, the father would be allowed a standardized
schedule of weekend and holiday visitation. The trial court
also reduced the father's monthly child-support
obligation "retroactive to March 2016," and it
awarded the mother a child-support arrearage of $5,
mother first argues that the trial court did not have the
authority to modify the father's child-support obligation
retroactively to the date the father had filed his petition
for a modification. The mother points out that past-due
installments of child support become enforceable money
judgments. See, e.g., State ex rel.
Brown v. Handley, 628 So.2d 726, 727 (Ala. Civ. App.
1993). However, those past-due installments become final
judgments only when they mature before the filing of
a petition to modify the child-support obligation. Ex
parte State ex rel. Lamon, 702 So.2d 449, 450-51 (Ala.
1997); see also State ex rel. Pritchett v.
Pritchett, 771 So.2d 1048, 1051 (Ala. Civ. App. 2000);
Hartley v. Hartley, 42 So.3d 743, 745 (Ala. Civ.
App. 2009) ("[C]hild-support payments that mature or
become due before the filing of a petition to modify are not
modifiable."). Alabama law provides that a modification
of child support may be effective as of the date of the
filing of a modification petition. Rule 32(A)(3), Ala. R.
Jud. Admin. ("The provisions of any judgment respecting
child support shall be modified only as to installments
accruing after the filing of the petition for
modification."). This court has explained that applying
a child-support modification retroactively is a matter within
the trial court's discretion:
"Whether to make a parent's child-support obligation
retroactive to the date the petition to modify was filed is a
decision committed to the sound discretion of the trial
court. Volovecky v. Hoffman, 903 So.2d 844, 850
(Ala. Civ. App. 2004).
"'The trial court may exercise its discretion in
setting the effective date of a modification, but it is not
bound to modify as of the date of the filing of the petition.
Clutts v. Clutts, 54 Ala.App. 43, 304 So.2d 599
(1974); see also, Murphy v. Murphy, 491
So.2d 978 (Ala. Civ. App. 1986). This matter is within the
sound discretion of the trial judge, whose decision will not
be disturbed unless it was so unsupported by the evidence as
to be palpably wrong, manifestly unjust, or plainly
erroneous. Culverhouse v. Culverhouse, 389 So.2d 937
(Ala. Civ. App. 1980).'
"Rogers v. Sims, 671 So.2d 714, 716-17 (Ala.
Civ. App. 1995)."
Walker v. Lanier, 221 So.3d 470, 472 (Ala. Civ. App.
Williams v. Braddy, 689 So.2d 154, 157 (Ala. Civ.
App. 1996), this court determined that a trial court had
erred in failing to properly apply the Rule 32 child-support
guidelines, and it remanded the cause for a redetermination
of the amount of child support. However, this court affirmed
the retroactive application of the reduction in the
father's child-support obligation to the date of the
filing of the father's petition. This court held that if
it changed the amount of child support on remand, the trial
court should recalculate the father's child-support
arrearage as well. 689 So.2d at 157.
mother in the current case argues only that the trial court
lacked the authority to retroactively modify the father's
child-support obligation. As already explained, Rule 32(A)(3)
and Alabama caselaw do not support that argument. Walker
v. Lanier, supra; Williams v. Braddy, supra.
The mother does not argue that the trial court abused its
discretion in retroactively modifying the father's
child-support obligation; in other words, she does not argue
that the evidence did not support the amount of the
child-support obligation or that the facts do not support a
retroactive application of the new child-support amount.
Arguments not asserted in an appellant's brief are deemed
waived. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.
1982) ("When an appellant fails to argue an issue in its
brief, that issue is waived.").
mother next argues that the trial court erred in modifying
the visitation schedule for the father. The mother contends
that the father did not demonstrate a material change in
circumstances sufficient to warrant an award of visitation
with the child. The record indicates that the father did not
appear at the divorce hearing and that, therefore, a default
judgment of divorce was entered. The father testified at the
hearing in this matter that he had terminated his former
counsel's representation during the pendency of the
divorce action and that that attorney had failed to inform
him of the scheduled divorce hearing.
divorce judgment awarded the father supervised visitation at
a place known as the "Family Exchange Center." The
father had last visited with the child, who was three years
old at the time of the modification hearing, in June 2016.
The father testified that he could not afford to pay the fees
charged by the Family Exchange Center for his supervised
visitation. We note that questioning by the trial court
indicated that the Family Exchange Center offered a
sliding-scale payment schedule based on a parent's income
if that parent attended a parenting class through the Family
Exchange Center. The father had not participated in that
class. The record indicates that the father is not ...