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Rivera v. Sanchez

Alabama Court of Civil Appeals

December 20, 2019

Jose Alberto Rivera, Jr.
v.
Lorena Sanchez

          Appeal from Morgan Circuit Court (DR-12-900044.01)

          EDWARDS, Judge.

         Jose Alberto Rivera, Jr. ("the father"), and Lorena Sanchez ("the mother") were divorced by an April 2012 judgment ("the April 2012 divorce judgment") of the Morgan Circuit Court ("the trial court"). Among other things, the April 2012 divorce judgment, which had incorporated a settlement agreement executed by the parties, awarded the parties joint legal custody of their minor child, awarded the mother sole physical custody of the child, required the father to pay child support in the amount of $1, 044 per month, and ordered the father to pay the mother alimony in the amount of $756 per month until the parties' marital residence was sold and $220 per month thereafter. In March 2017, the father filed a complaint seeking a modification of the April 2012 divorce judgment. Specifically, the father sought a reduction in his child-support obligation and a modification of his visitation to increase his custodial time with the child.[1]

         The mother answered the father's complaint and filed a counterclaim in which she sought to have the father held in contempt for failing to pay child support. The mother was later granted leave to amend her counterclaim to seek to have the father held in contempt for failing to pay alimony. At the trial, which was held in November 2018, the trial court allowed the father to seek a modification of custody to joint custody, over the objection of the mother, who had argued that the father had not specifically pleaded a claim for modification of the parties' custody arrangement. On December 31, 2018, the trial court entered a judgment modifying the father's child-support obligation, as agreed upon by the parties; declining to modify the father's visitation or to award him joint physical custody of the child;[2] holding the father in contempt for his failure to pay child support and alimony; ordering the father to pay, in specified installments, $10, 842.25 in past-due child support, including interest, and $11, 144.88 in past-due alimony; and awarding the mother an attorney fee. The father, through new counsel, filed a postjudgment motion in which he asserted the argument that the parties' reconciliation and cohabitation should have nullified or abrogated the child-custody, child-support, and alimony provisions of the April 2012 divorce judgment.[3] After a hearing, the trial court denied the father's postjudgment motion, and the father filed a timely notice of appeal to this court.

         The record reveals the following facts. Immediately after the entry of the April 2012 divorce judgment, the father's Department of Veterans Affairs ("VA") benefit was $699 per month, which amount he had deposited each month into the mother's bank account, and he began paying child support. In October 2012, the father returned to the former marital residence, the parties resumed cohabitation, and they later had a second child; they did not, however, remarry. The father lost his job during that period, and he did not pay the mother child support; however, he continued to have his VA benefit deposited into the mother's bank account.

         In April 2016, the father moved out of the former marital residence. He continued to have his VA benefit deposited into the mother's bank account; however, the father did not pay to the mother the difference between his $699 VA benefit and the $756 alimony obligation between April 2016 and December 2016. The father's VA benefit increased to $702 in January 2017, and, although the VA benefit continued to be deposited into the mother's bank account, the father still did not pay the difference between his VA benefit and his alimony obligation to the mother.

         The father remarried in November 2016. In March 2017, the father stopped having his VA benefit deposited into the mother's bank account and did not otherwise pay his alimony obligation to the mother. According to the testimony of the mother and exhibits admitted at the trial, the father's past-due alimony obligation was $11, 144.88 in principal and $549.11 in interest at the time of the trial. The father did not dispute the mother's calculation of his alimony arrearage at trial.

         In addition to failing to pay alimony, the father failed to pay his monthly child-support obligation between August 2016 and December 2016. The father paid some, but not all, of his monthly child-support obligation in January 2017 and February 2017 and between January 2018 and April 2018. According to the testimony of the mother and an exhibit admitted at trial, the total principal amount of the father's child-support arrearage was $10, 038.50 and he owed interest in the amount of $803.75 at the time of the trial. The father did not dispute the mother's calculation of his child-support arrearage at trial.

         The father suffered two heart attacks in the first two weeks of November 2017. He did not return to work until April 2018. As a result of his heart attacks, which, he said, had been determined to be related to his military service, the father was declared 100% disabled and was awarded full VA disability benefits, which totaled $3, 615.94 per month.

         The father's overarching argument on appeal is that the trial court erred in failing to conclude that the parties' cohabitation between October 2012 and April 2016 "nullified" the April 2012 divorce judgment, rendering the child-custody, child-support, and alimony provisions of the April 2012 divorce judgment ineffective. The father relies on Stone v. Sintz, 572 So.2d 1270, 1272 (Ala. 1990), Ray v. Ohio National Life Insurance Co., 537 So.2d 915, 916 (Ala. 1989), and Ex parte Phillips, 266 Ala. 198, 95 So.2d 77 (1957), to support his argument. He contends that, under the holdings of those authorities, his and the mother's cohabitation nullified the April 2012 divorce judgment. Although this appeal involves issues of child custody, child support, and alimony, the review of the trial court's legal conclusions is de novo. See Hughes v. Hughes, 253 So.3d 423, 432 (Ala. Civ. App. 2017), and Caswell v. Caswell, 101 So.3d 769, 772 (Ala. Civ. App. 2012).

         The Effect of the Cohabitation of a Divorced Couple on Child Support and Child Custody

         Certainly, there is legal precedent to the effect that the remarriage of previously divorced parents abrogates the child-custody and child-support provisions of a prior divorce judgment. See Ray, 537 So.2d at 916, and Ex parte Phillips, 266 Ala. at 200, 95 So.2d at 79. In Ray, our supreme court considered whether the remarriage of divorced spouses terminated one former spouse's obligation under the divorce judgment to name his three children as beneficiaries of a life-insurance policy. Ray, 537 So.2d at 916. Our supreme court stated, based on its earlier holding in Ex parte Phillips, that "remarriage of the spouses to each other terminates the divorce court's jurisdiction and nullifies the provisions as to custody" and "support." Ray, 537 So.2d at 916. Thus, it concluded that the provision requiring the former spouse to name his three children as beneficiaries was no longer enforceable after the remarriage. Id.

         The discussion in Ex parte Phillips is especially instructive regarding the effect of the remarriage of previously divorced parents on the child-custody and child-support provisions contained in their divorce judgment.

"'Where a decree of divorce makes provision for the custody, care, control, and support of minor children of divorced parents, during their minority, or during a less period named in the decree, the jurisdiction of the court over custody continues during such period, even though there is no express reservation of jurisdiction in the decree. Corbett v. Corbett, 123 Ohio St. 76, 174 N.E. 10');">174 N.E. 10 [(1930)].
"['....]
"'But if the parties remarry they no longer have separate rights of custody which require supervision by the court. Instead there is a resumption of the same joint right to custody which antedated the separation and the divorce.
"'With the parties reunited in marriage, and with their several rights of custody remerged into one common right of custody, the basis for the court's further jurisdiction ceases.
"'It is generally the law that remarriage of the parents terminates a divorce court's jurisdiction over the parties and their minor children. Thus it is said in Nelson Divorce and Annulment, 2nd Edition 15.40 that "... if the divorced parents of minor children are reunited in lawful marriage to each other, the parental rights of each parent are restored the same as if no divorce had ever been granted, even though the custody of the children was awarded to one of the parents by the divorce decree." Citing McAlhany v. Allen, 195 Ga. 150, 23 S.E.2d 676');">23 S.E.2d 676 [(1951)].'"

Ex parte Phillips, 266 Ala. at 200, 95 So.2d at 79 (quoting Lockard v. Lockard, 102 N.E.2d 747, 747-48 (Ohio Ct. Com. Pl. 1951)).

         In the present case, although the mother and the father had resumed living together for over three years and apparently resumed sexual relations, producing a second child, the father and the mother, unlike the parties in Ex parte Phillips, did not remarry. As the trial court commented at the hearing on the postjudgment motion, neither party contended that they had entered into a common-law marriage. In fact, as the trial court further observed, the father's conduct after the parties' second separation in April 2016, which was to marry another woman, belies any belief on the father's part that a common-law marriage resulted from the parties' cohabitation.

         The father contends that his resuming cohabitation with the mother resulted in a sharing of parental responsibilities and a continuation of their lives as a united family unit. Although the father's factual assertions might be true, the cohabitation of divorced parents does not legally restore their marital status or the legal rights that attend that status. Thus, we reject the father's argument because the postdivorce relationship that he and the mother established was not legally sufficient to establish a basis to apply the principles set out in Ex parte Phillips or Ray such that the child-custody and child-support provisions of the April 2012 divorce judgment should be considered nullified.

         From that conclusion flows the further conclusion that, contrary to the father's argument, the trial court correctly applied the burden established in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), to the father's request to modify the custody provisions of the April 2012 divorce judgment. The father makes no argument that the trial court erred in concluding that he had not satisfied the burden imposed by Ex parte McLendon, so any such argument is waived. See D.E.F. v. L.M.D., 76 So.3d 834, 837 (Ala. Civ. App. 2011) (determining that the failure of the father in that case to argue that the trial court had erred in concluding that he had not presented sufficient evidence to meet the standard imposed by Ex parte McLendon resulted in a waiver of that issue on appeal). The trial court's judgment, insofar as it denied the father's request that the custody provisions of the April 2012 divorce judgment be modified, is therefore affirmed. Similarly, the father's argument that his child-support arrearage would not have existed because the child-support provisions of the April 2012 divorce judgment were nullified by his resuming cohabitation with the mother fails, and the trial court's ...


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