The parties were married in 1993. The father had at least three extra-marital affairs during the marriage. The parties had two children: a son born in 1999 and a daughter born in 2009.

The husband’s last affair began while the mother was pregnant with their daughter. Evidence was adduced that the affair had continued after the parties’ separation in August, 2009. After the separation, the father had custody of the son approximately 50 percent of the time. The father exercised visitation with the daughter but did not keep her overnight.

The father earned $5,868 per month. The mother earned $42,000 per year. Her net income was $2,750 per month and her expenses were $4,100 per month. The son attended private school. The court awarded the parties joint legal custody of the children with the mother having primary physical custody. The father was awarded visitation with the son on a 14-day rotating schedule wherein the father was awarded six days and six nights of visitation with the son. The mother exercised custody for the remaining eight days of each custodial period. In that same 14-day period, the father was awarded two days and two nights of visitation with the daughter as well as one four-hour midweek visit every other week.

The father was ordered to pay $1,049 per month for child support. He was ordered to equally split all expenses for extracurricular activities. He was also ordered to pay one-half of private school tuition. The father appealed.

Affirmed in part; reversed in part. (1) The father claimed that it was error for the court to order a different visitation schedule for him with the daughter than he was awarded with the son. “Although we agree with the father that there is no evidence indicating that he is incapable of caring for the daughter during the periods he has custody of the son, we note that the trial court’s decision was required to be based upon the best interest of the daughter.”He did not preserve the issue of the court’s failure to state its reason for deviating from Rule 32.

(2) Both parties agreed that they wanted the son to remain in private school and that he flourished in that environment. Moreover, it was undisputed that the son was an excellent athlete and that both parties encouraged him to participate in numerous extracurricular activities.  The father argued that he could not afford to pay these expenses. The Court estimated that the father would be required to pay another $270 per month. The trial court could have concluded that the father had the financial capacity to do so even in spite of his testimony to the contrary. The father claimed that his net income only exceeded his expenses by $110 per month. He allotted $900 for food and $75 for snacks for the son during his visitation period. He also had expenses for clothing, gifts for the children, household supplies, and insurance for two vehicles and a boat even though one vehicle and the boat were inoperable. “Thus, the trial court could have concluded that the father had the ability to pay the additional child support.”

(3) The Court rejected the father’s argument that he should not be required to repay the mother for the son’s trombone and his tuition expense accrued during the pendency of the action. The pendente lite order required the father to pay child sup- port and to contribute to the payment of monthly expenses. Taylor v Taylor

The parties were divorced in 2009 by a judgment of the Tuscaloosa Circuit Court. Pursuant to an agreement of the parties that was incorporated into the decree of divorce, the mother was given primary physical custody of the parties’ two then-minor daughters and the father was given primary physical custody of the parties’ son. Since the divorce, the mother and the daughters have resided in Tuscaloosa County and the father and the son have resided in Pickens County.

On June 7, 2012, the mother petitioned the Tuscaloosa Circuit Court for emergency relief to enforce her right to summer visitation with the son. She also sought to hold the father in contempt and to modify post-minority support provisions in the decree.

The father filed an answer and counterclaim in which he sought to hold the mother in contempt. The father petitioned the Court of Civil Appeals for mandamus relief. The Court of Civil Appeals denied the petition without an opinion. The father petitioned the Alabama Supreme Court for certiorari review.

Writ of mandamus issued. Ala. Code 1975, § 30-3-5, provides that venue for an action seeking modification or the enforcement of an order involving a child is proper in the county where the order was issued or in the county where the custodial parent and child have resided for at least three years. It further provides that if the residency requirement is satisfied, the custodial parent can select the venue. See also Ex parte Baker, 575 So.2d98 (Ala. Civ. App. 1990).

The mother did not dispute that the father satisfied the requirements of Section 30-3-5, but argued that the statute did not apply here because her action also involved claims relating to the daughters as to which venue was proper in Tuscaloosa County. The Court rejected this argument. The Court acknowledged the statute could result in inequities, but stated it was bound to say what the law is, not what it should be. Ex parte Brandon (In re: Brandon v. Brandon).

Parties divorced in 2009. They were awarded joint legal and physical custody of minor child. In 2010, the Father filed petition for contempt and petition for modification alleging the mother had been entertaining overnight visitors of the opposite sex that she met on the Internet. The Mother filed a counter-petition alleging she had become primarily responsible for child because of Father’s work schedule. Mother testified that Father lived 3 miles from her. During Father’s custodial periods, he would deliver the child to her around 4 a.m. 2 to 3 days per week. This continued until Father’s brother and mother starting living with him. No evidence was shown that the mother had overnight visitors while the child was in her custody. Sole custody was awarded to the Mother. The Father appealed.

The Father argued that the trial court erred when it determined a material change in circumstances and that it would be in the child’s best interest for the Mother to have sole custody. The only evidence to support the trial court’s determination that the child was “experiencing some difficulties” was the testimony of the paternal grandmother that the child was “quiet” after custody exchanges. The Mother also testified that she thought that the child had to readjust each time. The court held that the Mother’s testimony was “speculative at best.” The court held that the evidence was not sufficient to warrant a change in custody.

The Mother argued that when the Father filed his petitions that he had conceded that the joint custody arrangement was not working. The court held that the Father filing his petitions on a “completely separate ground” could not be considered.
The Mother also argued that there was a material change because the Father had relocated to the state of Tennessee after the entry of the divorce judgment. The Mother failed to present this argument to the trial court.

Reversed.

Parties married in 1995. They had 3 children. In 2006, trial court entered judgment of legal separation which included an agreement of the parties. In agreement the Wife had custody of the children and Husband was to pay $5,000 per month in child support. Husband also agreed to pay 40 of his net commission or bonuses he received. In 2008, Husband filed petition to set aside separation agreement and filed a complaint for divorce. The Wife filed an answer and Rule Nisi alleging husband’s failure to pay child support as agreed. In 2008, the trial court entered a divorce judgment. In 2009, a hearing was held during which Husband requested joint custody and complained that Wife made unilateral decisions about children without consulting him. Wife claimed arrearage of child support involved payment of an appropriate share of Husband’s commissions. The Wife was awarded primary custody. Husband was to pay $4,000 per month in child support and arrearage of $100,000.

Wife filed post-judgment motion re: interest calculations on arrearage, which the court denied. Wife appealed. On remand, the trial court declined to award interest because the “child support provision in the separation agreement was ambiguous.” The Wife appealed.

The court stated (on the issue of whether the husband was required to prove a material change in circumstances before he was awarded joint custody of the children): “Our legislature has determined that the custodial terms of a legal-separation agreement do not have the same effect as a determination of custody in an original divorce action. Sufficient evidence existed to support an award of joint legal custody.” The decrease in child support was not in error.

Since it could not be determined how the trial court determined the arrearage, the trial court’s judgment was due to be reversed. As to interest on the child support arrearage, the court stated that “The requirement that a trial court award interest on unpaid child support obligations is one of the more well-settled principles of family law.” Once an arrearage determination has been made the trial court cannot waive the payment of interest. This portion of the judgment was also due to be reversed.

Affirmed in part; reversed in part.