Nave v. Nave

Alabama Court of Civil Appeals · Family Law

Family Lawchild custodycontemptchild supportdivorce judgment interpretationjoint custodycustody modificationbest interests of the child

Facts

The divorce judgment gave the parties joint legal and physical custody of their three children on an alternating-month schedule and required the father to pay the mother $1,200 per month in child support until six months after her graduation from a technical-college program, as well as tuition and books for that course of study. After the mother allowed the oldest child to begin living exclusively with the father, the father sought sole custody of all children and child support from the mother, while the mother sought sole custody of the two younger children and contempt findings against the father. At trial, there was conflicting evidence about both parents' drug use, parenting, anger, and communication problems, and the evidence showed both parties had negative drug tests before trial. The trial court kept joint custody of the two younger children, awarded the father sole custody of the oldest child, ordered the mother to pay prospective support for that child, and found the father in contempt for unpaid child support and unpaid college expenses.

Issue

Whether the trial court abused its discretion by declining to modify the joint-custody arrangement for the two younger children, by finding the father in contempt for unpaid child support and college expenses, and by refusing to award retroactive child support for the oldest child. Also, whether an ambiguous divorce judgment could support a criminal contempt finding for failure to pay child support.

Rule

When parties share joint custody, modification is governed by the best-interest standard rather than the McLendon material-promotion standard, but the party seeking modification must show a change in circumstances such that transferring sole physical custody is in the children's best interests. A criminal contempt finding requires proof beyond a reasonable doubt that the alleged contemnor was subject to a lawful order of reasonable specificity, violated it, and did so willfully. If a divorce judgment is reasonably susceptible to more than one meaning, it is ambiguous, and such ambiguity defeats criminal contempt based on alleged willful violation of that provision. Retroactive modification of child support is committed to the trial court's sound discretion.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A divorce decree in Ohio gave Dana Mercer and Luis Ortega joint legal and physical custody of their two children on a week-on, week-off schedule. Two years later, Dana sought sole physical custody in Columbus, alleging that Luis had become disorganized and missed some school emails, while Luis presented evidence that both parents remained active in the children's lives and that the children were doing adequately in both homes.

What standard should the court apply to Dana's request to change the existing joint-custody arrangement to sole physical custody?

Explanation. When an existing arrangement is joint custody, modification is governed by the best-interest standard, not the more demanding material-promotion standard. But the moving party still must show a change in circumstances such that transfer to sole physical custody is in the children's best interests. (Derived from Nave v. Nave (n.d.).)