Credit for Child Support When the Kids Live With Dad

Every good family lawyer abhors having his client, Mom or Dad, under an order to pay child support and not paying it. We tell you, and we mean it, that the court could “pop” you at any time. We also tell you that disobeying a judge’s order is a good way to get on that judge’s bad side, maybe for good. Yet we must also state that the courts are sometimes seized with a fit of uncommon common sense; such is the case in Odum v. Smith, Case No. 2070758 (Ala. Civ. App. February 6, 2009).

The parties had agreed to joint custody of their two children with the mother designated as primary physical custodian and with the father to pay child support. That arrangement worked fine for several months until there was a loud argument at the mother’s home. A few days later the parties orally agreed that the children should live with the father and visit with their mother. Neither party paid child support to the other while the children lived with the father.

About two months later, when the father petitioned to modify the divorce decree to award custody to him, the mother responded with a motion to hold the father in contempt for failure to pay child support. After a hearing, the trial court ruled that the father would have sole custody and that the mother would have visitation. It ordered that her visitation be supervised, however, until she obtained “a fit place to live with running water and electricity,” at which time her visitation would be unsupervised. The trial court also held that neither party owed the other a child support arrearage. The mother appealed.

The mother pressed two arguments on appeal, (a) that the trial court erred when it determined that the father didn’t owe a child support arrearage, and (b) the trial court had insufficient evidence to modify custody of the parties’ children.

The appeals court noted the father’s testimony that the children had been living with him, that he had provided food, shelter, clothing and other needs for the children, and that the mother’s financial support was limited to some school supplies. The appeals court summed up the law on allowing a credit against court-ordered child support in this way (p 4):

[A]lthough child support payments are final judgments as of the date they accrue, we have allowed offsets to be made in instances where a child lived with the [noncustodial parent] at the time of accrual and the [noncustodial parent] was able to prove that he made contributions to the child’s support.’ Lewis v. Winslow, 587 So. 2d 1006, 1008 (Ala. Civ. App. 1991) (citations omitted). ‘The award or denial of a credit against an arrearage is within the sound discretion of the trial court.’ Phillippi v. State ex rel. Burke, 589 So. 2d 1303, 1304 (Ala. Civ. App. 1991) (citation omitted).

On the mother’s second issue, that the trial court had insufficient evidence to change custody, the appeals court noted that the evidence before the trial court indicated that she lived in a mobile home without electricity or hot water, that she would “pop [the children] in the mouth,” that she had difficulty controlling the children’s behavior, and that the children did not get along well with her live-in boyfriend. In contrast, the appeals court said, the children had a good relationship with the father and his new wife, earned better grades in school and had better attendance records while living with their father, and both expressed a preference to live with the father.

The appeals court said that the trial court could have found this evidence to constitute a material change since the entry of the court’s initial custody determination and that a change in custody would “materially promote [the children’s] welfare.” The appeals court therefore affirmed the trial court’s judgment.

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