98 So. 3d 521
Ala. Civ. App.2012Background
- Julia Faellaci and Jared Faellaci were married in 1995 with three children; a 2000 boy and two girls (2002, 2004).
- A 2006 separation judgment incorporated a separation agreement giving the wife sole custody, with the husband having visitation and a substantial child-support provision.
- In 2008 the husband petitioned to set aside the separation agreement and for divorce; pleadings and motions led to a 2009 ore tenus proceeding; final 2009 judgment granted joint custody to the parties, wife primary physical custody, and husband $4,000 monthly child support, plus arrearage of $100,000, while other separation provisions remained in effect.
- Wife appealed challenging custody, child-support modification, arrearage amount, lack of interest on arrearage, and admissibility of mediation evidence; the appellate court previously dismissed as nonfinal due to unresolved interest and visitation determinations.
- In 2011 the trial court adopted the parties’ visitation agreement, held $100,000 arrearage, and denied other relief; on rehearing the court granted in part, reversed in part, and remanded for further proceedings, including interest issues and arrearage calculation.
- This opinion substitutes the February 3, 2012, ruling on rehearing and affirms some aspects while remanding for recalculation consistent with the court’s guidance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether joint legal custody was proper | Faellaci contends no material change warranted joint custody. | Faellaci argues best interests support joint custody and the court relied on §30-3-152. | Affirmed joint custody; best interests supported. |
| Whether child-support must show a material change in circumstances to modify | Faellaci asserts modification requires change in circumstances. | Faellaci contends separation terms bind the modification standard. | Modified to $4,000 monthly without requiring material change in this post-separation divorce action. |
| Whether the $100,000 child-support arrearage calculation is supported | Faellaci argues the arrearage calculation relied on inaccurate appraisals and records. | Faellaci argues arrearage is correctly computed from commissions/bonuses. | Reversed and remanded for recalculation; record insufficient to substantiate the amount. |
| Whether interest on the arrearage was properly awarded | Faellaci argues interest should be waived due to ambiguity in the separation agreement. | Faellaci acknowledges interest should be applied once arrearage is determined. | Reversed; interest must be applied after proper arrearage calculation. |
| Whether the trial court erred by considering the mediation agreement | Faellaci argues mediation agreement should not influence the decision. | Faellaci contends the mediation agreement was improperly used but harmless if supported otherwise. | Harmful error regarding mediation evidence; but overall impact was harmless given other supports. |
Key Cases Cited
- Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001) (presumption of correctness for ore tenus divorce judgments; law application uses standard like abuse of discretion)
- Lowery v. Lowery, 72 So.3d 701 (Ala.Civ.App.2011) (best interests standard applies to custody in divorce actions after legal separation)
- Ex parte Couch, 521 So.2d 987 (Ala.1988) (best interests custody standard governs post-separation disputes)
- Dyas v. Dyas, 683 So.2d 971 (Ala.Civ.App.1995) (discretionary approach when income exceeds child-support schedule upper limits)
- Mullins v. Sellers, 58 So.3d 817 (Ala.Civ.App.2010) (reversal/remand when trial court’s calculation of arrearage is unclear)
- Hildesheim v. Velaski, 769 So.2d 920 (Ala.Civ.App.1999) (remand for recalculation when inability to determine total arrearage)
- Parsons v. Parsons, 233 So.2d 237 (Ala.Civ.App.1970) (maintenance provisions in legal separation abate upon absolute divorce absent agreement)
- Lockridge v. Lockridge, 77 So.3d 148 (Ala.Civ.App.2011) (parity with Parsons; separation to divorce transition; reconsideration of child-support modification)