Green v. Green
264 So. 3d 898
Ala. Civ. App.2018Background
- Parents divorced in 2009; mother awarded custody and father awarded visitation; father ordered to pay certain expenses "in lieu of paying child support."
- 2016 modification found father $1,000 in arrears and ordered $361/month child support; custody unchanged.
- Father filed a 2016 modification seeking primary custody after mother moved in with a man; mother claimed a common-law marriage.
- May 12, 2017 modification judgment found mother in contempt but ordered "joint custody" with a schedule giving mother the child during the school year and father substantial summer/holiday time; court declined to order child support and permitted alternating tax exemption.
- No court reporter transcript; mother submitted a Rule 10(d) statement and appealed the lack of child support, the tax-exemption allocation, and the limited summer custodial time (she waived challenge to the joint-custody label).
Issues
| Issue | Plaintiff's Argument (Green) | Defendant's Argument (Stephen Green) | Held |
|---|---|---|---|
| Whether trial court erred by not ordering child support | Mother: court abused discretion by awarding no support; child lives with mother substantially more and father must contribute | Father/Trial court: deviation valid because parents "jointly share custody and expenses" and court has discretion in joint-custody contexts | Reversed: failure to apply Rule 32 mandatory forms and explain deviation; remand for Rule 32-compliant child-support determination |
| Allocation of federal income-tax dependency exemption | Mother: tax exemption should be considered as part of child-support determination and not awarded to father without Rule 32 analysis | Father/Trial court: allocation consistent with court's deviation and shared expenses finding | Reversed: tax-exemption decision tied to child support; remand to determine as part of Rule 32 analysis |
| Whether summer custody allocation (mother 2 of 10 weeks) was an abuse of discretion | Mother: contesting limited summer time | Father/Trial court: court properly considered child’s in-camera preference and circumstances | Affirmed: court did not abuse discretion in summer schedule |
| Sufficiency of the record/Rule 10(d) issues (absence of transcript) | Mother: challenges based on missing transcript; submitted statement of evidence | Father/Trial court: court issued its own statement of evidence; oral testimony presumed to support findings | Appellate review limited by brevity of court's statement; but absence of transcript did not prevent reversal on child-support and tax issues because Rule 32 noncompliance is clear |
Key Cases Cited
- Berryhill v. Reeves, 705 So.2d 505 (Ala. Civ. App. 1997) (appellate review standard for child-support discretion)
- DeYoung v. DeYoung, 853 So.2d 967 (Ala. Civ. App. 2002) (compliance with Rule 32(E) is mandatory even if deviation warranted)
- Shewbart v. Shewbart, 19 So.3d 223 (Ala. Civ. App. 2009) (shared physical custody can justify deviation from guidelines)
- Bonner v. Bonner, 170 So.3d 697 (Ala. Civ. App. 2015) (affirming no child support where custody and expenses were substantially shared)
- Willis v. Willis, 45 So.3d 347 (Ala. Civ. App. 2010) (court must state facts supporting deviation; cannot guess findings)
- K.T.W.P. v. D.R.W., 721 So.2d 699 (Ala. Civ. App. 1998) (trial court's discretion to allocate tax exemption when reasons for deviation are stated)
- Arnold v. Arnold, 977 So.2d 501 (Ala. Civ. App. 2007) (tax-exemption allocation is part of child-support determination)
- Motley v. Motley, 69 So.3d 210 (Ala. Civ. App. 2011) (custody labeled "joint" may effectively be sole physical custody depending on time division)