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Bosarge v. Bosarge

Alabama Court of Civil Appeals

July 27, 2018

Lauren Bosarge
v.
Richard Gerald Bosarge II

          Appeal from Mobile Circuit Court (DR-15-900007.01)

          THOMPSON, PRESIDING JUDGE.

         Lauren 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.

         On 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).

         In its 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, 502.[1]

         The 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. 2016).

         In 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.

         The 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.").

         The 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.

         The 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 ...


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