THOMAS, Judge.
Steven Jeffery Williams ("the father") and Jennifer Williams ("the mother") were divorced by a judgment entered by the Etowah Circuit Court in 2008. There are two children of the marriage. The circuit court awarded the father custody of the children, subject to the mother's award of supervised visitation. In 2009 the circuit court found the father in contempt regarding his lack of compliance with the mother's right to visitation. In 2011 the circuit court ordered the mother to pay $82 per week in child support. In 2012 the circuit court allowed the father to relocate the children to Fairhope, which is approximately 300 miles from where the mother lives in Gadsden. The mother had access to her parents' mobile home in a retirement community in Fairhope after the father relocated the children, but she continued to live in Gadsden.
On May 21, 2013, the mother filed a complaint seeking a modification of custody and a finding of contempt against the father. The father answered and filed a counterclaim seeking a modification of custody and a finding of contempt against the mother. The dispute centered on visitation. The children, who were at that time ages 14 and 10, respectively, were participating in sports and other weekend activities that conflicted with the mother's twice-per-month weekend-visitation schedule. In fact, on June 4, 2013, the father filed a motion seeking an "immediate ruling" allowing
The mother filed an amended complaint seeking a modification of custody and a finding of contempt in which she asserted that the father had attempted to alienate the children from the mother and had continued to interrupt her visitation after she had filed her original modification complaint on May 21, 2013. Upon the mother's request, the circuit court ordered the father to allow the mother to exercise an extended visitation over a holiday weekend. The circuit court appointed a guardian ad litem for the children. The children's guardian ad litem recommended a visitation schedule tailored to avoid weekends when the children had football games.
On September 6, 2013, the circuit court entered an order, which required the mother to exercise visitation with the children in Fairhope during football season. Thereafter the parents continued to file motions that displayed their lack of communication, agreement, and cooperation. On October 9, 2014, the circuit court entered an order apprising the parents that it would not engage in entering "week to week orders" compelling the parties to cooperate with each other. It specifically warned the father that he had placed himself at risk of contempt sanctions.
The children's guardian ad litem filed a second recommendation in which she noted that the parties had contacted her after business hours on "numerous occasions" and that she had attended many meetings and hearings with the parties. According to the children's guardian ad litem, the older child desired to live with the mother.
A trial was held on June 16, 2014, and October 27, 2014. At that time the children were 15 and 11 years old, respectively. The circuit court interviewed the children; however, the unopposed in camera interview was not transcribed. On November 7, 2014, the circuit court entered a judgment, which reads, in pertinent part:
The circuit court's judgment also contained orders regarding the each parent's visitation (one weekend per month) with the child not in his or her custody. The circuit court's judgment reads, in pertinent part:
On November 25, 2014, the father filed a postjudgment motion. On December 5, 2014, the mother filed a response to the father's postjudgment motion. After a hearing, the circuit court entered an amended judgment on February 19, 2015; the amended judgment clarifies certain visitation provisions and reads, in pertinent part:
(Emphasis added.)
The mother filed a notice of appeal on March 12, 2015; the father filed a cross-appeal
Ex parte Fann, 810 So.2d 631, 632-33 (Ala.2001).
Siblings may be separated if the trial court concludes, based on sufficient evidence in the record, that the separation will serve the best interests of the children at issue. A.B. v. J.B., 40 So.3d 723, 729 (Ala.Civ.App.2009); see also Jones v. McCoy, 150 So.3d 1074, 1084 (Ala.Civ.App. 2013). Neither parent sought an award of split custody, and each parent asserts on appeal that the circuit court erred by separating the children. The circuit court indicated that it considered the effect of separating the children; it specifically noted that the positive good brought about by the change in the older child's custody offset the inherently disruptive effect of separating the older child from the younger child. "In child custody cases especially, the perception of an attentive trial judge is of great importance." Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ. App.1981).
The mother argues that the circuit court should have awarded her custody of the children because she met the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and she points out certain favorable testimony. However, we must consider all the testimony and the presumption afforded to a judgment that is, at least in part, based on evidence adduced at an in camera interview, a transcript of which is not presented for our review. "In the absence of a transcript of an in camera interview with a child, a reviewing court must assume that the evidence the trial court received during that interview is sufficient to support that court's judgment."
The father argues the circuit court entered an award of split custody without "just reason or cause." We do not agree. Although a "child's preference is only one factor to be considered by the trial court" when fashioning a custody award, Pullum v. Webb, 669 So.2d 925, 927 (Ala.Civ.App. 1995) (citing Hayes v. Hayes, 512 So.2d 119 (Ala.Civ.App.1987)), the circuit court could have deemed the older child to have been of sufficient age and discretion to merit aligning its custody award with his wishes. See Enzor v. Enzor, 98 So.3d 15, 19 (Ala.Civ.App.2011) (noting that, while not dispositive, the custody preference of a 17-year-old child is entitled to much weight). Furthermore, other testimony demonstrated that the custody award would serve the children's best interest. Janet Louise Lawson, the children's counselor, who testified on behalf of the father, said that the older child was "fine" in the father's custody but that he was "emotionally impacted" by the custody litigation. Lawson first testified that there was no reason to change the children's custody; however, she later admitted that the older child had indicated that he wanted to live with the mother and that he wanted to live in Gadsden, and, she said, the younger child usually said that he wanted to live with the father in Fairhope. At the postjudgment hearing it appears that the parties were aware that the older child had expressed a preference to live with the mother. The father's attorney said: "Your Honor, the boy wanted[—]the older boy[—]wanted to live with mom, I understand." We conclude that the evidence supports the circuit court's judgment awarding the parents split custody of the children.
The circuit court entered a standard-visitation order that addressed each parent's visitation during the school year, the summer, and, as amended, six holidays with the child not in his or her custody.
Green v. Green, 474 So.2d 1135, 1136 (Ala. Civ.App.1985).
The mother presents a less than one-page argument that the circuit court abused its discretion by ordering her to travel to Fairhope to visit the younger child. The mother testified that, if she was awarded custody, she preferred an order requiring her to travel to Fairhope one weekend per month and requiring the father to travel to Gadsden one weekend per month. The circuit court reduced the visits from twice per month to once per month, and, although the circuit court did not require the father to travel, it required the mother, as she requested, to travel one
The father argues that the circuit court erred by failing to "employ a more specific visitation schedule" and that the circuit court did "nothing to give the parents guidance as to whether or not extracurricular activities of the children supersede visitation." The father testified that the standard-visitation schedule did not contain enough detail, that it was necessary for the circuit court to "go through and write every little date and time out," and that the circuit court needed to "specify every visit, every weekend that there's a visit to be had, the time, the date, the hour, the minute, the second all the way through." The mother testified that specific dates and times would be "great." The father's arguments are, however, unsupported by the record. The award of standard visitation is sufficiently detailed, and the amended judgment twice clarifies that visitation periods always take precedence over extracurricular activities.
The father urges this court to find the mother in contempt for her admitted failure to pay child support and to "mete out" punishment, which is, of course, not the function of a reviewing court.
Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ. App.1994). We note that, if the father had properly requested our review of whether the circuit court had abused its discretion by failing to hold the mother in contempt, we would conclude that the circuit court did not abuse its discretion in light of the father's corresponding failure to pay the mother a court-ordered property settlement and the circuit court's refusal to hold the father in contempt.
On June 23, 2011, the circuit court ordered the mother to pay $82 per week in child support. It is undisputed that the mother failed to pay child support and that a child-support arrearage existed. On the first day of the two-day trial, the father testified that the mother owed $12,710 in past-due child support, plus interest. On the second day of the two-day trial, he testified that the mother owed a lesser amount — $11,811 ($9,348 + $2,463 in interest). The father requested that the circuit court consider a "setoff" or credit to the mother because, according to him, he owed the mother $9,284 in the form of an unpaid property settlement. He suggested using the figure of $9,348 as the child-support arrearage and leaving off the interest to make the difference "about zero."
The mother testified that the father owed her "quite a sum" from the unpaid
At the close of the second day of the trial, the father's attorney said: "I've done a compound interest calculation on both, and they're within six hundred dollars. We'd be willing to just flatten it out as of today, because that would be [the father's] six hundred bucks and we'll set it off." The circuit-court judge replied: "I don't think I have the authority to eliminate a real property settlement by a setoff of child support, unless it's done by agreement." According to the judgment, the parties agreed to the setoff; however, in his postjudgment motion, the father asserted that "no agreement was made by the parties or attorneys," and, at the hearing on the father's postjudgment motion, the father's attorney asserted that he had made an offer to settle but that the mother had never accepted the offer. In the mother's response to the father's postjudgment motion, the mother asserted that the parties had reached an agreement.
Frasemer v. Frasemer, 578 So.2d 1346, 1348-49 (Ala.Civ.App.1991); see also Slater v. Slater, 587 So.2d 376, 380 (Ala.Civ. App.1991)("It is well settled that past-due
A custodial parent cannot agree to waive court-ordered child support, McWhorter v. McWhorter, 705 So.2d 423, 426 (Ala.Civ.App.1997), and a trial court errs if it arbitrarily "round[s] off" a child-support arrearage. Endress v. Jones, 534 So.2d 307, 308 (Ala.Civ.App. 1988). In this case the father could not properly agree to "flatten it out," i.e., forgive the mother's child-support arrearage because the father owed a comparable amount as a property settlement, and the circuit court could not round off what could only be an estimated child-support arrearage. Thus, because a trial court has no power to forgive an accrued child-support arrearage, Moloney v. Papie, 95 So.3d 9, 12 (Ala.Civ.App.2012), the circuit court erred.
Based on the foregoing, we conclude that the circuit court did not err by separating the children, by requiring the mother to travel to Fairhope to visit the younger child, by failing to "employ a more specific visitation schedule," or by declining to find the mother in contempt. The circuit court erred insofar as it concluded that the father's property-settlement obligations and the mother's child-support obligations have been satisfied. We remand the cause for the entry of a judgment consistent with this opinion.
APPEAL — AFFIRMED.
CROSS-APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
THOMPSON, P.J., and PITTMAN, MOORE, and DONALDSON, JJ., concur.
