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M.K.F. v. K.D.K.

Alabama Court of Civil Appeals

March 29, 2019

M.K.F.
v.
K.D.K.

Page 16

[Copyrighted Material Omitted]

Page 17

          Appeal from Madison District Court (CS-09-30.03). Schuyler H. Richardson, Judge

         Clement J. Cartron, Huntsville, for appellant.

          Submitted on appellant’s brief only.

         OPINION

         THOMPSON, Presiding Judge.

Page 18

          In May 2009, the Madison District Court ("the juvenile court") entered a judgment adjudicating the paternity of K.D.K. ("the father") of the minor child born in 2007 of his relationship with M.K.F. ("the mother") and ordering the father to pay child support. A December 21, 2009, judgment of the juvenile court modified the father’s child-support obligation.

          In 2011, the juvenile court entered another judgment modifying the father’s child-support obligation, determining that the father owed a child-support arrearage of $ 11,349.39, and awarding the mother an attorney fee of $ 4,025. The parties and the juvenile court refer to that judgment as the "February 15, 2011," judgment. That judgment was signed by the juvenile-court judge on February 15, 2011; however, it was date-stamped as having been filed in the juvenile-court clerk’s office on March 14, 2011. For ease of reference, in this opinion, we use the same terminology used by the parties and the juvenile court, and we refer to that 2011 judgment as the "February 15, 2011, judgment." In the February 15, 2011, judgment, the juvenile court found the father to be in contempt for his failure to pay child support on nine separate occasions. The juvenile court also ordered that, "[i]n addition to monthly child support ordered herein, [the father] shall pay to [the mother] the monthly sum of $ 150 toward the satisfaction of the judgment for arrearage as provided herein."

          On April 28, 2017, the father filed in the juvenile court a petition seeking to modify his child-support obligation. On May 15, 2017, the mother answered and opposed the request for a modification. On that same date, the mother filed a document that she titled as a "counterclaim for contempt" in which she alleged that the father owed her $ 16,487.25 from his failure to pay required monthly payments toward the child-support arrearage established in the February 15, 2011, judgment. The father filed an answer opposing the mother’s May 15, 2017, counterclaim.

          On October 19, 2017, the mother sought the permission of the juvenile court to amend her "answer," i.e., her counterclaim, to assert another counterclaim seeking a modification of the father’s child-support obligation. The juvenile court entered an order allowing that amendment.

          On November 17, 2017, four days before the scheduled ore tenus hearing, the mother again moved to amend her counterclaim. In her November 17, 2017, proposed amended counterclaim, the mother sought to update the amounts that the father allegedly continued to owe pursuant to the February 15, 2011, judgment, including the amount of interest that had accrued on the attorney-fee award in the February 15, 2011, judgment, and she sought a judgment redetermining the amounts still owed under the February 15, 2011, judgment. In addition, the mother sought an award of an attorney fee in this action.

          The father objected to that proposed, November 17, 2017, amendment to the mother’s counterclaim. On November 21, 2017, the juvenile court entered an order denying the mother’s November 17, 2017, motion to amend.

          The juvenile court conducted an ore tenus hearing on November 21, 2017. During that ore tenus hearing, the juvenile court ruled that the mother’s only pending counterclaim was her claim seeking a modification of child support. The juvenile court disallowed the mother’s attempts to present evidence on the issue of contempt and pertaining to her request for an attorney fee.

Page 19

          On June 29, 2018, the juvenile court entered an order in which it, among other things, modified the father’s child-support obligation, ordered him to pay $ 150 each month toward the arrearage established in the February 15, 2011, judgment, awarded the mother a judgment of $ 6,226.17 for a new child-support arrearage that had accumulated since the entry of the February 15, 2011, judgment, and ordered that the father pay interest on that new child-support arrearage.[1] In its June 29, 2018, order, the juvenile court determined that the attorney-fee award established in the February 15, 2011, judgment "was included in and made a part of the additional $ 150 per month to be paid by the father" toward the satisfaction of that February 15, 2011, judgment. In addition, the juvenile court denied the parties’ claims, asserted during the pendency of this action, seeking sanctions for various alleged failures to comply with discovery requests.

         The mother filed a notice of appeal on July 12, 2018. On November 27, 2018, this court entered an order reinvesting the juvenile court with jurisdiction to enter a final judgment. On December 10, 2018, the juvenile court entered an order determining the interest owed on the child-support arrearage that had accumulated since the entry of the February 15, 2011, judgment to be $ 3,430.20. That order resolved the last of the pending claims between the parties, and, therefore, it constituted the final judgment in the action below. Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1069-70 (Ala.Civ.App. 2005). The appeal was deemed effective upon the entry of the final judgment. Rule 4(a)(4), Ala. R. App. P. However, for ease of reference, in this opinion, we refer to the June 29, 2018, order as "the June 29, 2018, judgment."

         As an initial matter, we note that the mother argues on appeal that the juvenile court erred in considering the father’s child-support-modification claim. The mother cites Hilson v. Hilson,598 So.2d 955, 956 (Ala.Civ.App. 1992), for the proposition that "[a] party in contempt who has violated a [judgment] of the court is not entitled to be heard on a petition for modification until he purges himself" of contempt. However, the mother did not raise this argument before the juvenile court, and she may not seek, for the first time on appeal, to hold the juvenile court in error with regard to an issue ...


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