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Adcock v. Fronk

Alabama Court of Civil Appeals

May 3, 2019

Elton T. Adcock
Gretchen L. Fronk

          Appeal from Madison Circuit Court (DR-11-900145.01)

          EDWARDS, JUDGE.

         Elton T. Adcock ("the father") and Gretchen L. Fronk ("the mother") were divorced in 2013. The 2013 divorce judgment, among other things, awarded the parties joint legal custody of their children and designated the mother as the sole physical custodian, awarded the father limited supervised visitation, ordered the father to pay child support in the amount of $958 per month, required the father to maintain medical insurance covering the children subject to certain conditions, and required the parties to equally split the cost of noncovered reasonable and necessary medical expenses of the children. In addition, the 2013 divorce judgment ordered the father to pay the mother $5, 000 as a property settlement and to maintain in effect an existing life-insurance policy designating the mother as beneficiary ("the life-insurance policy").

         In December 2016, the father filed a complaint seeking to modify his child-support obligation. The mother answered the father's complaint and later filed a counterclaim seeking to hold the father in contempt for his failure to pay child support as ordered, to maintain health insurance covering the children, to maintain the life-insurance policy, to pay her the $5, 000 property settlement, and to pay one-half of the noncovered medical expenses incurred on behalf of the children. The father amended his complaint to add a claim seeking to hold the mother in contempt for failing to allow the father to exercise visitation; in his amended complaint, he sought to modify certain provisions of the 2013 divorce judgment relating to visitation.

         After a trial on July 18, 2018, the trial court entered a judgment on July 31, 2018 ("the 2018 modification judgment"), denying the father's request for a modification of child support, suspending the father's duty to pay child support so long as the children continued to receive monthly Social Security disability payments in an amount at least equivalent to the father's monthly child-support obligation, and determining that the father was due a credit for overpayment of child support in the amount of $7, 611.43. In the 2018 modification judgment, the trial court also determined that the father owed the mother $4, 742.17 for one-half of the noncovered medical expenses she had incurred on behalf of the children. The 2018 modification judgment further ordered the father to pay the mother $3, 159.42 for reimbursement of one-half of the cost of the health insurance covering the children and to pay one-half of the cost of that insurance going forward. The trial court also declared that the father was in contempt of the 2013 divorce judgment, but it did not set a purger or impose any punishment. Finally, the 2018 modification judgment terminated the provision in the 2013 divorce judgment permitting the father to exercise visitation at the Family Services Center in Huntsville and awarded the mother a $6, 836.40 attorney's fee. The father timely filed a notice of appeal.

         At the trial, the trial court heard testimony from the father, the mother, and Timothy Roy Callins, who formerly served as an attorney in the child-support division of the Department of Human Resources. The father testified that he and the mother had divorced in 2013 and that, at that time, the mother and the children had already relocated to Lavonia, Georgia. According to the father, the distance between Huntsville and Lavonia is approximately 350 miles and takes between 5 and 6 hours to traverse. The father explained that he had been awarded supervised visitation with the children twice per month for no more than three hours per visit and that he was entitled to exercise at least one of those visits each month at the Family Services Center in Huntsville. However, he testified that he had had only one visit with the children since the divorce, which, he said, had been held at the Family Services Center on May 20, 2017, and had been limited to only one hour. He said that he had asked for visits multiple times and that the mother had told him that the children were too busy with their extracurricular activities or were going on vacation; he said that he and the mother could never arrive at an agreeable time for any visits.

         The father testified that he had retired from his employment with the State of Alabama on September 28, 2012, before the entry of the 2013 divorce judgment. He testified that, upon his retirement from the State of Alabama, the children were covered by his former employer's medical-insurance policy pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA"), but, he said, coverage under COBRA "abruptly stopped" in September 2014. After that time, the father explained, he purchased private medical insurance to cover the children at the cost of $453 per month, which he maintained through August 2017. The father testified that, once he was declared disabled, he was entitled to Medicare but that the children were not.

         In November 2016, the Social Security Administration determined that the father was disabled as of February 17, 2015. The children were each awarded a $9, 284 lump-sum payment representing the amount they were entitled to receive from the date of the onset of the father's disability and $548 per month in Social Security disability benefits each month after December 2016. The combined amount of the children's Social Security disability benefits exceeds the father's monthly child-support obligation of $958.

         The father testified that he had not maintained the life-insurance policy as required by the 2013 divorce judgment. According to the father, "[t]hat was impossible to do at the time that the [trial] court ordered it, and I have a document." However, the father did not further explain the alleged impossibility or provide documentary evidence regarding the alleged impossibility.

         The father further admitted that he had not always paid his entire monthly child-support obligation of $958. The father admitted that, at the time the 2013 divorce judgment was entered, he had a child-support arrearage in the amount of $1, 616. Exhibits admitted by both parties indicate that the father failed to make child-support payments in February, March, April, and August 2013; in September 2013, he paid the mother $1, 916 in child support. Those same exhibits show that, from January 2015 through March 2016, the father paid $4, 580.27 in child support; he was obligated to pay $14, 370 during that 15-month period.

         The mother testified that she had encouraged the children to visit the father. The mother explained that she had attempted to schedule a visit between the father and the children in 2014, but, she said, the father had suggested a facility in Georgia that was some distance away from her and the children's home in Lavonia. She testified that she had offered the father some alternative facilities in Georgia that could supervise his visitation, but, she said, he never contacted her further about a facility. According to the mother, after the 2014 attempt, the father did not contact her about visiting the children until March 2017, after he had commenced this action.

         The mother explained that the children were very busy with activities; both children were active in the Farmer's Federation of America, one was a competitive cheerleader for a period, one had a part-time job, one was editor of her high-school yearbook, both taught Sunday school at their church and participated in mission trips, and both were members of the Beta Club. The mother testified that she had located a facility near her home in Lavonia at which the father could have visited, but, she said, the father had declined to use that facility because he did not want to hire an officer to supervise the visit. The mother said that she had offered to pay the expense associated with the supervisor but that the father had declined her offer. Furthermore, the mother explained that the father never contacted her to work out a mutually agreeable date; she said that he had desired her to bring the children to visit him in Huntsville on a school day. According to the mother, whenever she had offered alternative dates to the father or to the Family Services Center's personnel, either the father would indicate that he had a conflict or the Family Services Center's personnel would take so long to get back to her that the one child would have already been scheduled to work on the proposed date.

         The mother complained that the father had not paid his half of the children's noncovered medical expenses. Although she admitted that the divorce judgment required her to provide the father notice of those expenses on a monthly basis, the mother testified that she had sent the father statements and bills "at least ... quarterly." She presented exhibits containing the total amount of noncovered medical expenses incurred on behalf of each child; the combined total for both children was $9, 484.34. She also testified that she had begun providing health insurance for the children as of August 1, 2017.[1]

         Callins testified at trial about the calculation of the father's child-support arrearage and about the credit he had received for the lump-sum Social Security disability payments received by the children. Callins explained that the lump-sum payments could be used to offset any arrearage that had accrued from the date of the onset of the father's disability forward but that any amount of the lump-sum payments over and above that arrearage could not be used as a credit in his favor toward any arrearage accumulated before the onset of the father's disability. Callins prepared an exhibit calculating the father's arrearage, which, as of the date the father was declared disabled in February 2015, was $3, 001.73. According to that exhibit, between the date of the onset of his disability and the payment of the lump sum in January 2017, the father accrued a child-support arrearage of $9, 662. The lump-sum payments of $18, 568 were larger than that amount, so, based on the exhibit, only $10, 620 was used to pay that portion of the father's arrearage accumulated between February 2015 and January 2016 -- or $9, 662 -- and to pay the father's January 2016 child-support payment of $958. Callins explained that the amount of the lump-sum ...

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