William Shaddock Hodgin v. Jeannie R. Chance
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REL: June 18, 2021 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2020-2021 _________________________ 2190648 _________________________ William Shaddock Hodgin v. Jeannie R. Chance Appeal from Morgan Circuit Court (DR-00-19.01) EDWARDS, Judge. William Shaddock Hodgin ("the father") and Jeannie R. Chance ("the mother") were divorced in February 2000 by a judgment entered by the 2190648 Morgan Circuit Court ("the trial court"). Pursuant to the agreement incorporated into the divorce judgment, the parties were awarded joint legal custody of their child, William Chase Hodgin ("the son"), whose date of birth was December 18, 1996; the mother was awarded sole physical custody of the son; and the father was ordered to pay $352.80 per month in child support. In October 2017, well over a year after the son had reached the age of majority, the mother commenced an action seeking to have the father held in contempt for failing to pay child support as ordered in the divorce judgment; the mother also requested that the amount of the father's arrearage be established. The father answered the mother's complaint and contended that he was due credits against his arrearage for several expenditures that he claimed he or his mother, Betty Jean Hodgin ("the paternal grandmother"), had made on behalf of the son. After a trial held in January 2020, the trial court entered a judgment establishing the father's arrearage as totaling $33,999.45 in past-due support and interest; the trial court did not hold the father in contempt and indicated that all relief requested that was not otherwise addressed in the judgment was denied. In response to the father's postjudgment 2 2190648 motion, the trial court amended its judgment to establish the father's arrearage as $7,673 in past-due child support and $24,585.06 in interest. In the amended judgment, the trial court explained which of the father's claimed credits had been applied to the father's child-support arrearage. After his postjudgment motion directed to the application of certain credits and the calculation of interest in the amended judgment was denied, the father filed a timely notice of appeal. We have long held that a parent may be "given credit for those periods in which [that parent] (or some third party) supports the child or in which the child is self-supporting." Nabors v. Nabors, 354 So. 2d 277, 279 (Ala. Civ. App. 1978). "The key factor to be considered in giving credit for child support arrearage is whether the evidence shows that the [parent] contributed to the actual support of the child. Keller v. Keller, 370 So. 2d 306 (Ala. Civ. App. 1979). In order for a [parent] to receive credit he [or she] must present proof establishing the monetary amount of the credits to be given. O'Neal v. O'Neal, 532 So. 2d 649 (Ala. Civ. App. 1988)." Snyder v. Snyder, 579 So. 2d 671, 673 (Ala. Civ. App. 1991). In addition, we have explained that a parent "may be credited for expenses that he [or she] assumes gratuitously"; however, we have cautioned that "these 3 2190648 expenses must clearly be categorized as essential to basic child support." Hillis v. Boggs, 646 So. 2d 124, 126 (Ala. Civ. App. 1994). That is, "[a] noncustodial parent may not receive credit against his or her child-support obligation by providing the child with gifts, luxuries, or other nonessential 'extras' that do not directly go to the basic support of the child." Caswell v. Caswell, 101 So. 3d 769, 775-76 (Ala. Civ. App. 2012). We have also cautioned that "such credits are not automatically awarded," that "the decision to do so is made by the trial court in its discretion, after it reviews all the surrounding circumstances," and that "[w]e will not disturb the court's decision unless it is so erroneous as to be an abuse of discretion." Lewis v. Winslow, 587 So. 2d 1006, 1008 (Ala. Civ. App. 1991). "When a decision is within the trial court's discretionary powers, the trial court 'has the power to choose between two or more courses of action and is therefore not bound in all cases to select one over another.' " Swindle v. Swindle, 157 So. 3d 983, 992 (Ala. Civ. App. 2014) (quoting In re 2010 Denver Cnty. Grand Jury, 296 P.3d 168, 176 (Colo. Ct. App. 2012)). Thus, when we review a trial court's decision regarding an 4 2190648 award or denial of requested credits, "the factual aspects of each case must be considered together with the trial court's discretion." Crawford v. Bullock, 587 So. 2d 363, 366 (Ala. Civ. App. 1991). Moreover, the trial court, and not this court, is the fact-finder, and it is permitted to weigh the credibility of the witnesses and to resolve the conflicts in the evidence; we are bound to presume that the trial court's factual findings are correct. Pardue v. Pardue, 917 So. 2d 857, 859 (Ala. Civ. App. 2005). We will review the evidence presented with these principles in mind. The mother testified that the father had never made a child-support payment to her. According to the mother, she and the father had both worked for ControTech Construction Company ("ControTech") at the time of their divorce; she explained that ControTech had been owned by the father's father, William Clark Hodgin, and that she had continued to work for ControTech until it closed in October 2001. The mother admitted that the paternal grandmother had paid the mortgage payment on the former marital residence, which the mother had been awarded in the divorce judgment, for several months, but, the mother said, she had given the paternal grandmother the money to make those payments. The mother 5 2190648 testified that she did not recall whether the father's paychecks from ControTech had been assigned to her and said that she had no knowledge that the father had paid $5,600 to bring the mortgage balance on the former marital residence current sometime in 2001, after the mother had failed to make the mortgage payments for the 10 months following the entry of the divorce judgment. The mother also testified that, although she had been aware that the paternal grandmother had opened a bank account for the son, she was not aware that she had had access to that account; she said that she had never made a withdrawal from that account. The father testified that he was employed as a nurse at the time of the trial but that, at the time of the entry of the divorce judgment, he had worked for ControTech and had owned and operated a nightclub. He testified that he and the mother had agreed that his ControTech paychecks, which were $464 per week, would be directed to the mother after the entry of the divorce judgment. The father explained that, in addition to paying the mother his income from ControTech, he had also, at some point in 2001, assisted the mother by paying $5,600 to bring the 6 2190648 mortgage on the former marital residence, which the mother was awarded in the divorce judgment, current, after he discovered that the mother had not paid the mortgage payment for approximately 10 months after the entry of the divorce judgment. Additionally, the father said, he had paid for a new roof to be put on the former marital residence in either 2003 or 2004 and had purchased a new air-conditioning unit for the former marital residence around the same time in 2003 or 2004. He stated that he had expended $3,500 to replace the roof and $3,000 to replace the airconditioning unit. According to the father, the son began living in his home in October 2011 and had lived there most of the time until May 2015. The mother, however, testified that the son had moved into the father's residence in March 2013 and had lived with the father on weekdays during the school year but had spent most weekends and the summer living with her. The son testified that he had spent his weekdays during the school year with the father beginning either "late in his sophomore year," which he testified would have been in spring 2012, or in June 2012, when the 7 2190648 renovations on his room were completed.1 He said that he had continued to live with the father on weekdays during the school year until his graduation in May 2015. He, like the mother, testified that he had spent most weekends and almost all of the summer with the mother each year. The father's daughter, Fiona Hodgin, testified that the son had begun living in the father's home in 2011 and 2012, when the father renovated a room for the son. Documentary exhibits indicated that expenditures on the room renovation occurred in May and June 2012. The father said that the mother had not paid him child support for the son during the periods that the son had lived with him. The son testified that the mother had paid for the costs associated with his schooling and for his automobile insurance throughout his high-school years and that, although she had not provided him with an allowance, she had given him spending money and "made sure I got by." The mother 1 We recognize that the son's testimony regarding when he began to live with the father is somewhat inconsistent, because his sophomore year would have concluded in spring 2013, not 2012. 8 2190648 testified that she had paid the son's "other expenses" during the periods when he lived with the father during the school week. The paternal grandmother testified at length about expenditures she had made for the benefit of the son. The record contains exhibits outlining expenses that the paternal grandmother claimed had been incurred on the son's behalf; however, on cross-examination, the paternal grandmother admitted that those exhibits might reflect expenses incurred on behalf of herself and the son, like haircuts or meals for both of them, and expenses for items like video games. In addition, an exhibit outlining those expenses included medical expenses incurred by the son, which the father's counsel admitted was addressed by a separate provision of the divorce judgment and was not to be considered child support. Quite a few of the entries on the exhibit do not indicate the reason for the expense and simply list the son's name and an amount. The paternal grandmother explained that, in addition to the amounts she had paid on the son's behalf, she had opened a savings account for the son in 2006 that she had funded with regular deposits, typically $200 per month. According to the documentary exhibits, the 9 2190648 paternal grandmother had deposited a total of $26,600 into the savings account by the time the son reached the age of majority in December 2015. The paternal grandmother explained that the mother had had access to the account to make withdrawals, but the documentary evidence indicates that, as the mother testified, the mother had never accessed the account. The mother explained that she had understood the savings account to be "a savings account for college." The paternal grandmother also testified that she had made mortgage payments on the mother's behalf once the father had learned that she was not making the mortgage payments on the former marital residence. According to an exhibit prepared by the paternal grandmother, she had paid a total of $23,392.17 toward the mortgage on the former marital residence. As stated above, the mother testified that she had provided the paternal grandmother money with which to make those mortgage payments, and she also testified that she did not believe that the paternal grandmother had made the mortgage payments in 2004 and 2005, because, she said, she had taken over paying the mortgage during those years. 10 2190648 On appeal, the father asserts four arguments. He first complains that the trial court erred by failing to award to him a credit for the entirety of each mortgage payment made by the paternal grandmother. Secondly, he contends that the trial court abused its discretion by failing to award him a $26,600 credit for the funds the paternal grandmother deposited into the son's savings account. He next argues that he was entitled to a credit for in-kind support provided during the years that the son lived primarily with him. Finally, he argues that the trial court did not properly apply the credits that he was awarded to extend the period that he was in compliance with the child-support order and that, as a result, the trial court improperly calculated interest. To better understand the father's arguments, we will quote the trial court's amended judgment, which explains the credits it awarded to the father and how it calculated the arrearage and interest. "After review of the evidence, exhibits, and arguments, the Court finds that the weekly $464.00 payments made from the [father] to the [mother] were made in the form of direct child support payments. Therefore, the Court finds that the [father] paid $35,264.00 in child support directly to the [mother] from March 2000 through September 2001. These payments constitute a significant overpayment of child 11 2190648 support. However, the overpayment was depleted as of June 2008. Thereafter, arrears and interest began to enter the equation for determining judgment. The arrears in child support total $31,768.00. The interest on said arrears totals $24,585.06 through January 31, 2020. Arrears and interest together total $56,353.06. "The Court awards a credit to the [father] for the payment of a roof repair ($3,500.00), an air conditioning repair ($3,000.00), mortgage assistance ($11,995.00), and a payment to save the home from a mortgage foreclosure/delinquency ($5,600.00). These total $24,095.00. The Court determined the entire amount owed by taking the amount of arrears plus interest and subtracting the credit. The Court has applied this credit to the arrears. After allowing for the credits set out above, the Court finds that the [father] owes unpaid child support in the amount of $7,673.00 and interest in the amount of $24,585.06 for a total of $32,258.06." As is evident from the trial court's amended judgment, the trial court awarded the father credit for only a portion of the mortgage payments the paternal grandmother claimed that she had made on the former marital residence. At trial, the mother's counsel claimed that only a portion of the mortgage payments paid by the paternal grandmother should be credited as child support because, she said, the mortgage payments had also supported the mother, who the father had no duty to support, and had increased the equity in an asset awarded to the mother 12 2190648 in the divorce judgment.2 In addition, the mother testified that she had paid the paternal grandmother at least a portion of the mortgage payment each month, and she disputed the paternal grandmother's claim that she had paid the mortgage in 2004 and 2005. We cannot discern the reason the trial court determined that the father was due only $11,995 in credit for the paternal grandmother's payments on the mortgage, but, because the evidence concerning whether the mother paid any amount toward the mortgage payments and whether the paternal grandmother made the 2 We note that, although the February 2000 divorce judgment awarded the mother the former marital residence and directed her to be responsible for making the mortgage payments, the February 2000 divorce judgment did not require the mother to hold the father harmless for any liability for the payments due under the mortgage and/or promissory note secured by the mortgage and did not require the mother to refinance the debt secured by the mortgage in her own name. Thus, the father remained liable on the mortgage and/or promissory note, and this may have been, in part, a basis for not characterizing the entirety of the mortgage payments made by the paternal grandmother as child support. See Barnes v. Barnes, 28 So. 3d 800, 803 (Ala. Civ. App. 2009) (quoting Eaton v. Grau, 368 N.J. Super. 215, 221, 845 A.2d 707, 711 (App. Div. 2004)) (" 'And while it is possible to stipulate in the [settlement agreement] who is to make the monthly payment, that does not absolve the other party from his or her obligation to the lender. Thus, if the party who is supposed to make the monthly payment defaults, not only will the other party be responsible for the amount due -- plus late charges -- but his or her credit rating could be significantly damaged.' "). 13 2190648 mortgage payments in 2004 and 2005 was conflicting, we cannot substitute our judgment for that of the trial court on this factual issue. The father next argues that the $26,600 the paternal grandmother deposited into the savings account set up for the son should also be credited against his child-support arrearage. He contends that that money was intended by the paternal grandmother to be child support, and, he says, the fact that the mother did not avail herself of the money in the account does not discount the fact that it was intended to be child support. He relies on Namati v. Lowhorn, 201 So. 3d 1191, 1195 (Ala. Civ. App. 2016), in which we determined that the fact that the mother in Namati had testified that she had placed the monthly Social Security benefits that the child had received into an account in the child's name and that she had not used that money for the support and maintenance of the child" was not a legal basis for failing to award the father a credit against his child-support arrearage in the amount of those benefits. As we pointed out in Namati, 201 So. 3d at 1195-96, and in Adams v. Adams, 107 So. 3d 194, 201 (Ala. Civ. App. 2012), the Social Security Administration requires that the custodial parent act as payee for a minor 14 2190648 child, that a separate account be set up for the Social Security benefits, and that the parent account for the use of those benefits. Those facts, we explained in Adams, do not change the fact that the Social Security benefits were essentially the same as child-support payments based on the fact that both are intended to be used for the benefit of the child. Adams, 107 So. 3d at 201. Thus, in both Adams and Namati, we reversed each trial court's denial of a credit against a child-support arrearage in an amount equal to the Social Security benefits the child at issue in each case had received. However, in the present case, the paternal grandmother set up and funded, at her discretion, the savings account for the son. The mother testified that, to her understanding, she did not have access to the savings account, which she understood to be a college-savings account for the son. The mother never once accessed the account, which both the paternal grandmother and the son had used for paying various expenses, including the purchase of an automobile, which would be considered to be a "nonessential 'extra[]' " as opposed to a necessity. See Caswell, 101 So. 3d at 776. Thus, the funds in the son's savings account in the present case 15 2190648 are not like the Social Security benefits at issue in Namati, which were paid to the mother as payee for the child, placed into a separate account as required by the Social Security Administration, and required by law to be used only for the benefit of the child, as proved by an accounting. The trial court was free to consider whether the money placed in the savings account by the paternal grandmother was actually intended by the paternal grandmother to be used for the day-to-day support of the son or whether, as the mother testified, was intended to be a college fund provided as a gift to the son by the paternal grandmother. Based on the judgment, we presume that the trial court resolved the conflict in the testimony in favor of the mother. We cannot substitute our judgment for that of the trial court on this issue. The father next contends that he was due credit for the period the son lived with him. He relies on Pardue, 917 So. 2d at 861, in which this court explained that "an obligated parent can prove his or her entitlement to a credit equal to the amount of child support due in a specified period by introducing evidence that the child primarily lived with the obligated parent during that period, that the 16 2190648 obligated parent provided all of the child's support during that period, and that the custodial parent provided none of it." According to the father, because the son lived primarily with him between June 2012 and May 2015, he is entitled to a credit of $12,348 ($352.80 x 35 months). We disagree. In order to be entitled to a credit equivalent to his child-support obligation, the father was required to prove that the son lived primarily with him. The father proved that the son lived primarily with him during the school year during the applicable period, as that fact appears to be uncontroverted; however, both the mother and the son testified that the son spent nearly all of the summer months living with the mother. Thus, the father did not prove that he was entitled to 35 months of credit, as he claims. Although the father testified that the mother had not paid him child support during the periods when the son lived primarily with him, the son testified that the mother had paid certain of his expenses relating to school and that she had provided him other moneys during the time when he lived with the father on weekdays during the school year. The mother 17 2190648 also points out that she testified that she had paid for the son's "other expenses."3 In addition, as pointed out above, the evidence was in conflict regarding whether the son actually lived primarily with the mother during the summers, when she would certainly have been providing the same basic support that the father claims he provided when the son lived with him. Because the evidence was in conflict regarding whether the mother provided any support for the son during the periods when he lived with the father, we cannot reverse the trial court's judgment declining to award the father credit for the 35-month period the father claimed that the son lived with him, which is based on its implicit finding that the father did not prove that the mother had contributed nothing to the support of the son for those 35 months. 3 We realize that the expenses related to the son's automobile are not considered to be essential to child support. See Caswell, 101 So. 3d at 775 (quoting Hillis, 646 So. 2d at 126) (concluding that "expenditures such as vehicle purchases, vehicle accessories, vehicle-registration fees, vehicle servicing, vehicle parts, [and] automobile insurance" are not " 'essential to basic child support' "). 18 2190648 Finally, the father argues that the trial court improperly computed interest on his child-support arrearage. The father contends that, because the credits the trial court awarded were all paid by the father or the paternal grandmother before he began accruing a child-support arrearage in June 2008, the trial court should have considered those credits to have extended the period during which he had paid "child support" and thereby extended his "compliance date" through January 2014 for the purpose of calculating interest. That is, he contends that, because the trial court determined that he had paid the mother an additional total of $24,095 before June 2008, the trial court should have determined that the father was not delinquent in paying child support until after an additional 68 months ($24,095 รท 352.80 = 68.29) had elapsed, making his arrearage and associated interest begin to accrue in January 2014. He cites Kuhn v. Kuhn, 706 So. 2d 1275, 1278 (Ala. Civ. App. 1997), to support his argument. However, Kuhn is not very instructive. The father contends in his brief that the Kuhn court indicated that credits are to be credited to the arrearage as of the date they are made and that interest should be 19 2190648 "imposed prospectively ... after the credit proven by the father had been applied to the obligation due." However, the Kuhn court does not indicate whether a credit was actually awarded to the father in that case or state that interest should be calculated only prospectively, after deducting an awarded credit from the calculation of the arrearage. The paragraphs upon which the father relies read: "The court, in its May 8, 1997, judgment, determined the father's total arrearage to be $8,240.75, composed of $2,341.50, 'representing the prior judgment previously rendered by the Circuit Court of Dallas County, Alabama plus interest'; $810.75, representing the life insurance premiums that the father had failed to pay; and $5,088.50, representing the father's child support arrearage through May 1997. We cannot determine how the court reached its total in calculating the arrearage. "The father's total support obligation for the son from April 1988, the date of the last support modification, to April 1997 is $8,100 (108 months x $75 = $8,100). The father's total support obligation for the daughter from April 1988 to the date that she attained majority on November 21, 1996, is $37,894 (441 weeks x $84 + 9 weeks x $90 = $37,894). The father's total child support obligation for both children for those periods is $45,994 ($8,100 + $37,894 = $45,994). Thus, it appears that the father's total obligation is $49,571.25 ($2,766.5 + $45,994 + 810.75 = $49,571.25). The evidence indicates that the father has from May 1988 to April 1997 paid a total of $47,576 to the Dallas circuit clerk's office. Therefore, it appears that the father's total arrearage is $1,995.25, plus interest ($49,571.25 20 2190648 $47,576 = $1,995.25). The court's determination that the father owes an arrearage of $8,240.75 is not supported by the evidence. Insofar as it sets the amount of an arrearage, the judgment is reversed; on remand, the court is to recalculate the arrearage." Kuhn, 706 So. 2d at 1278 (footnotes omitted). The Kuhn opinion does not indicate whether the $47,576 the opinion states that the father had paid to the Dallas Circuit Clerk's Office was his monthly child-support payment or some other "credit" due the father.4 In fact, the first and only mention of the moneys paid to the clerk's office by the father is the one contained in the above-quoted paragraph. The Kuhn court did not attempt to calculate interest; instead, it calculated the total arrearage as "$1,995.25, plus interest," but instructed the trial court to recalculate the arrearage, and, presumably, interest, on remand. Thus, we cannot agree with the father that Kuhn stands for the proposition that a credit to a child-support arrearage should be credited as of the date it 4 The credit the father sought in Kuhn was apparently for in-kind support supplied during the periods, he said, "the daughter had visited him during the Christmas school breaks and during the summers of 1988 through 1993." Kuhn, 706 So. 2d at 1278. 21 2190648 was made so as to prevent the accrual of interest on the unpaid childsupport obligation. Because Kuhn does not support the father's argument, he has failed to provide legal support for his argument that the trial court was required to apply the credits against his arrearage as of the date he paid those amounts to the mother, so as to prevent the accumulation of an arrearage and the interest due on that arrearage. See Rule 28(a)(10), Ala. R. App. P. (requiring an appellant to support his or her argument with appropriate legal authority). We note that the father had paid no child support to the mother after the exhaustion of the funds accumulated upon the assignment of his paychecks in June 2008. Thus, each month thereafter, he accumulated a child-support arrearage upon which interest accrued. Until the trial court, in its discretion, deemed the father's various payments to the mother to be appropriate credits against his existing obligation, the father had a significant child-support arrearage. Credits are not automatically awarded, Lewis, 587 So. 2d at 1008, and an awarded credit serves to reduce an existing child-support arrearage and is not an actual child-support payment. Therefore, we reject the father's 22 2190648 argument that the trial court was required to treat his credited payments as having been made as of the time they were paid to the mother so as to render them equivalent to timely (or, in actuality, premature) childsupport payments and to prevent the accumulation of an arrearage until January 2014. Having considered and rejected the father's arguments, we affirm the judgment of the trial court. AFFIRMED. Thompson, P.J., and Hanson and Fridy, JJ., concur. Moore, J., dissents, with writing. 23 2190648 MOORE, Judge, dissenting. I respectfully dissent. Alabama law provides that the parents of a minor child share the responsibility of supporting the child by procuring for the child the basic necessities for life. See Young v. Young, [Ms. 2180190, Feb. 7, 2020] ___ So. 3d ___, ___ (Ala. Civ. App. 2020) (Moore, J., concurring in the result), cert. denied, Ex parte Young, [Ms. 1190428, Sept. 11, 2020] ___ So. 3d ___ (Ala. 2020). Following a divorce, both parents remain obligated to contribute toward the financial needs of their child. Id. In that circumstance, Rule 32, Ala. R. Jud. Admin., strives to provide the child "the same level of support that would have been available to [the child] had the family unit remained intact." Comment to Rule 32, Ala. R. Jud. Admin. (as amended to conform to the amendments effective October 4, 1993). Rule 32 basically determines through a prescribed formula the total amount of the parents' shared child-support obligation based on their combined adjusted gross incomes, and then ascribes the amount each parent owes to support the child in proportion to their respective individual incomes. Id. The Rule 32 child-support guidelines "assume 24 2190648 that the custodial parent will directly provide his/her proportionate share of support to the [child]," id., and impose upon the noncustodial parent an obligation to periodically pay the custodial parent his or her share. See id. When the parties to a divorce judgment unilaterally alter the custodial arrangement so that the noncustodial parent obligated to pay child support assumes sole physical custody of the child, Alabama law provides that the noncustodial parent may receive credit against his or her child-support obligation for the period in which that parent has acted as the de facto custodial parent. See McDaniel v. Winter, 412 So. 2d 282 (Ala. Civ. App. 1982); Keller v. Keller, 370 So. 2d 306 (Ala. Civ. App. 1979). "The key factor to be considered in giving credit for child support arrearage is whether the evidence shows that the [obligated parent] contributed to the actual support of the child." Snyder v. Snyder, 579 So. 2d 671, 673 (Ala. Civ. App. 1991) (emphasis added). Some early caselaw suggested that the obligated parent bore the burden of proving the actual dollar amounts directed toward the support of the child to obtain a credit; however, in Pardue v. Pardue, 917 So. 2d 857, 859 (Ala. Civ. App. 2005), 25 2190648 this court clarified that an obligated parent does not have to present such evidence when seeking a credit for child support for periods in which the child primarily resides with the obligated parent. Relying heavily on Thompson v. Thompson, 650 So. 2d 928 (Ala. Civ. App. 1994), this court held that an obligated parent can prove actual support simply by showing that the child primarily resided with the obligated parent and that the obligated parent regularly provided the child food, clothing, shelter, and other basic necessities. Although unstated in Pardue and Thompson, the reasoning recognizes the assumption underlying Rule 32 that a parent acting as the sole physical custodian of a child meets his or her childsupport obligation through caring for the child on a day-to-day basis. In this case, William Shaddock Hodgin ("the father") proved that he had assumed de facto sole physical custody of William Chase Hodgin ("the child") during the child's latter high-school years, except for during the summer months in 2012, 2013, and 2014. The father presented uncontested evidence that proved that he had actually contributed to the support of the child by providing the child room and board throughout those periods. Jeannie R. Chance ("the mother") did not contest that the 26 2190648 father had supported the child in that manner; in fact, she actually testified that the child had benefited from that arrangement, which had allowed the child to finish high school in Morgan County after the mother had moved to Huntsville. The Morgan Circuit Court ("the trial court") did not award the father credit for the support he provided to the child during 2012, 2013, 2014, and 2015. On appeal, the father argues, among other things, that the trial court erred in that respect. The main opinion affirms that aspect of the judgment. The main opinion reasons that the father bore the burden of proving not only that he had provided actual support for the child while acting as the child's de facto custodial parent, but also that the mother had not provided any support. Relying on the mother's testimony that she had paid "other expenses" for the child, more specifically, some educational expenses, the main opinion essentially concludes that the mother's contribution to the child's support negates the father's claim for a credit. I disagree. The obligated parent in both Thompson and Pardue testified that, during the periods when the child at issue resided with the obligated 27 2190648 parent, the obligated parent provided all the financial support for the child and the custodial parent provided none. In Pardue, this court construed Thompson as holding "that an obligated parent can prove his or her entitlement to a credit equal to the amount of child support due in a specified period by introducing evidence that the child primarily lived with the obligated parent during that period, that the obligated parent provided all of the child's support during that period, and that the custodial parent provided none of it." 917 So. 2d at 861. However, neither Thompson nor Pardue held that an obligated parent may receive a credit against a child-support obligation only by proving that the custodial parent did not pay any child support at all during the period in which the child resided with the obligated parent. Neither case addressed that precise point because the circumstances of those cases did not present a situation in which the custodial parent had continued making some contribution to the support of the child. Thompson and Pardue do not stand for the proposition that an obligated parent who actually contributes support for a child by assuming sole physical custody of the child cannot receive a credit for that support. 28 2190648 As explained above, following a divorce, both parents remain obligated to financially support their child. In ordering the father to pay monthly child support of $352.80 in February 2000, the trial court necessarily assumed that the mother, as the custodial parent, would also contribute to the support of the child. The $352.80 monthly award of child support fixed only the amount of the father's contribution to the child's support; it did not establish the entirety of the support the child was entitled to receive from both parents. Accordingly, the determination of whether the father should receive credit depends on whether he provided financial support for the child sufficient to offset his child-support obligation, which he did. The mere fact that the mother also provided some additional monetary support to the child does not in any manner mean that the father failed to provide support for the child. As stated in Snyder, the question is whether the father contributed his share of support, not whether he paid all the support for the child. In her complaint, the mother claimed that the father had failed to pay any child support "in money or in kind" following the parties' February 2000 divorce. However, at trial, the mother did not contest that 29 2190648 the father had, in fact, actually supported the child during the at least 26 months (excluding the summer months in 2012, 2013, and 2014) that the child resided with him. "When an order requires a divorced husband to make periodic payments for the support of [a child] and he has supported the [child] while [the child] lived with him, the wife cannot recover payments for support during that period ...." Nabors v. Nabors, 354 So. 2d 277, 279 (Ala. Civ. App. 1978). In my opinion, it would be inequitable for the mother to now recover from the father child support for the same period for which he has already discharged his obligation through the actual support of the child, especially considering that the mother, with full knowledge of the circumstances, agreed to the revised custody arrangement, which she deemed, at the time, to serve the best interests of the child. As the main opinion states, " '[w]hen a decision is within the trial court's discretionary powers, the trial court "has the power to choose between two or more courses of action and is therefore not bound in all cases to select one over another." ' Swindle v. Swindle, 157 So. 3d 983, 992 (Ala. Civ. App. 2014) (quoting In re 2010 Denver Cnty. Grand Jury, 296 P.3d 168, 176 (Colo. Ct. App. 2012))." 30 2190648 ___ So. 3d at ___. However, in exercising judicial discretion, a trial court cannot simply choose one course of action over another arbitrarily. "Judicial discretion" refers to "[t]he exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law ...." Black's Law Dictionary 585 (11th ed. 2019). The overarching principle at stake in these types of cases concerns a child's fundamental right to receive support from his or her noncustodial parent. If an obligated parent has fulfilled the duty of supporting the child through means other than direct monetary payments to the custodial parent, the purpose of child support having been achieved, the law recognizes that the obligated parent should, as a matter of fairness, receive a credit; otherwise, the obligated parent is forced to pay child support twice and the custodial parent receives a windfall, all without the child's receiving any real benefit. In my opinion, under the circumstances of this case, the trial court arbitrarily denied the father credit against his child-support obligation for the 26 months the child resided with him, and its judgment should be reversed and the case remanded for the trial court to award the father the appropriate credit. 31 2190648 I also believe the trial court erred in determining the amount of the father's arrearage and the interest due. In the final, amended judgment, the trial court awarded the father credit for weekly payments of $464 he made to the mother between March 2000 and September 2001, by offsetting those payments against the amount of child support he owed from March 2000 to June 2008. The amended judgment further provides, in pertinent part: "Thereafter, arrears and interest began to enter the equation for determining judgment. The arrears in child support total $31,768.00. The interest on said arrears totals $24,585.06 through January 31, 2020. Arrears and interest together total $56,353.06. "The Court awards a credit to [the father] for the payment of a roof repair ($3,500.00), an air conditioning repair ($3,000.00), mortgage assistance ($11,995.00), and a payment to save the home from a mortgage foreclosure/delinquency ($5,600.00). These total $24,095.00. The Court determined the entire amount owed by taking the amount of arrears plus interest and subtracting the credit. The Court has applied this credit to the arrears. After allowing for the credits set out above, the Court finds that [the father] owes unpaid child support in the amount of $7,673.00 and interest in the amount of $24,585.06 for a total of $32,258.06." In the amended judgment, the trial court basically determined that the father had made advance payments of child support to the mother by 32 2190648 assigning his weekly salary to her from March 2000 to September 2001 for which he should receive credit through June 2008. The trial court then determined that the father should receive credit for certain repair and mortgage payments totaling $24,095,5 but that the credit should be applied to the father's child-support arrearage, which the trial court found to have begun accumulating in June 2008. An obligation to make periodic child-support payments matures and becomes a final judgment on the date each child-support payment becomes due. See Ex parte State ex rel. Lamon, 702 So. 2d 449, 450 (Ala. 1997). An arrearage accrues when the obligated parent fails to make the payment when due. Id. In this case, the trial court implicitly determined that the father had failed to make any child-support payments from June 2008 forward. However, in making its determination that the father was entitled to a credit for the repair and mortgage payments, the trial court, in substance, determined that those payments effectively substituted for 5 The mother did not cross-appeal, so we are not asked to determine whether the trial court erred in awarding the credits in light of our opinion in Wicker v. Hallman, 245 So. 3d 627 (Ala. Civ. App. 2017); therefore, I express no opinion on that point. 33 2190648 the monthly payments of $352.80 that were to be made by the father pursuant to the February 2000 divorce judgment. The evidence is undisputed that the repair and mortgage payments, totaling $24,095 and representing approximately 68 months of child support, were all made between 2001 and 2005. Because those payments were made before June 2008, they could be considered only advance payments on the child support becoming due on that date and going forward. Admittedly, our caselaw regarding how credits should be applied canvassed in the main opinion leaves much to the discretion of the trial courts, but, again, that discretion is controlled by principles of equity. As a matter of fairness, an obligated parent who contributes to the support of a child by making repair and mortgage payments should receive credit at the time those payments are made, and, if made before a child-support obligation matures, the payments should be treated as advance payments of child support, thereby preventing any arrearage and postjudgment interest from accruing. Treating those payments as if they had not been made timely, and thus allowing an arrearage to accrue although, in fact, the child support had been paid, defies the true state of the facts and leads 34 2190648 unavoidably to an unjust determination that the obligated parent owes postjudgment interest on moneys that the custodial parent has already received. In this case, the trial court determined that an arrearage began accruing on June 2008, the date the father's weekly salary was exhausted, although the father had, at that time, already made, directly or indirectly, an additional 68 months of child-support payments through the repair and mortgage payments. By my calculations, in light of those advance payments of child support, the earliest a child-support arrearage could have begun accruing would have been February 2014. As I have already addressed, however, the father should have received an additional 26 months of credit for the period during which the child resided with him, pushing the arrearage-accrual date back even further to April 2016. The child reached the age of majority on December 18, 2015, after which point, the trial court determined, no child support was due. Thus, the father would be entitled to a complete offset of his child-support obligation and 35 2190648 would owe the mother nothing.6 Instead, by determining that the credit should be applied as if a child-support arrearage had been accruing since June 2008, the trial court determined that the father owed the mother unpaid child support and postjudgment interest totaling $32,258.06, which, under the facts of this case, is both inaccurate and inequitable. 6 For that reason, I do not address the father's arguments that the trial court improperly denied him credit for all mortgage payments and bank deposits made by his mother, and I express no opinion as to the correctness of the judgment in that regard. 36
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