Opinion
2180464 2180465
02-07-2020
J.H. v. N.H. J.H. v. N.H.
Anne C. Christensen of Christensen & Christensen, Andalusia, for appellant. A. Riley Powell IV and Thomas A. Hughes, Jr., of The Powell Law Firm, P.C., Gulf Shores, for appellee.
Anne C. Christensen of Christensen & Christensen, Andalusia, for appellant.
A. Riley Powell IV and Thomas A. Hughes, Jr., of The Powell Law Firm, P.C., Gulf Shores, for appellee.
MOORE, Judge.
In appeal number 2180464, J.H. ("the mother") appeals from a judgment of the Covington Juvenile Court ("the juvenile court"), entered in case number CS-03-183.03 ("the .03 action"). In appeal number 2180465, the mother appeals from a judgment entered by the juvenile court in case number CS-03-183.04 ("the .04 action"). We dismiss appeal number 2180464 as moot. With regard to appeal number 2180465, we affirm the juvenile court's judgment in part and reverse it in part.
I. Procedural History
On August 19, 2004, the mother and N.H. ("the father") entered into an agreement ("the 2004 agreement") regarding their child, M.K. ("the child"), pursuant to which the parties were awarded joint legal custody of the child, with the mother exercising sole physical custody of the child, subject to certain specified visitation awarded to the father. Also pursuant to that agreement, the father was required to pay to the mother $352 per month in child support and the parties agreed to revisit that amount every two years. A. The .03 Action
Although the 2004 agreement appears in the record on appeal and bears the signatures of the mother and the father, the record on appeal does not contain a judgment of the juvenile court incorporating that agreement. We note, however, that the juvenile court's judgment in the .03 action refers specifically to paragraph 5 of the 2004 agreement. Although a transcript of the proceedings from the .03 action does not appear in the record on appeal, the copy of the 2004 agreement included in the record is marked as "¶3," or "Plaintiff's 3," indicating that it was presented and/or entered as an exhibit.
On February 22, 2017, the mother filed a petition in the .03 action, seeking to modify the father's child-support obligation and to hold the father in contempt for his failure to comply with certain terms of the 2004 agreement. The father filed, on March 9, 2017, an answer to the mother's petition and a counterclaim seeking to hold the mother in contempt for her failure to comply with the provisions of the 2004 agreement regarding the father's visitation with the child. The mother filed a reply to the father's counterclaim on April 4, 2017. A trial was conducted on August 23, 2017. On November 17, 2017, the juvenile court entered a judgment in the .03 action denying both parties' contempt claims. The juvenile court also increased the father's child-support obligation and addressed all the remaining claims raised by the parties in the .03 action.
B. The .04 Action
The father initiated the .04 action on April 18, 2018, by filing a petition in the juvenile court seeking to modify custody of the child. He sought, among other things, an award of sole physical custody of the child, subject to the mother's visitation. On that same date, the father filed a motion seeking "immediate temporary custody" of the child following the child's completion of the current school year. The mother filed an answer to the father's petition on May 14, 2018. On June 19, 2018, the father filed a motion to set the matter for a trial. On June 27, 2018, the mother filed a motion for emergency relief, asserting that the father had refused to return the child to her custody and requesting, among other things, that the juvenile court order the father to return the child to her custody and to suspend the father's visitation with the child. On June 29, 2018, the juvenile court set the .04 action for a trial to be conducted on August 6, 2018. The father filed a response to the mother's motion for emergency relief on that same date. On July 12, 2018, the mother filed a counterclaim seeking to hold the father in contempt. On July 16, 2018, the mother filed a second motion seeking to suspend the father's visitation with the child. The father filed a reply to the mother's counterclaim on July 18, 2018. The juvenile court entered an order on July 27, 2018, granting, in part, the mother's second motion to suspend the father's visitation and directing that the father's visitation with the child be suspended until the August 6, 2018, trial.
The parties appeared for the trial of the .04 action on August 6, 2018. Because the trial could not be completed on that date, the juvenile court continued the trial for completion on September 5, 2018; the juvenile court also ordered that "the child remain in the temporary custody of the father until such time as the hearing may be completed," subject to the mother's visitation as mutually agreed upon by the parties.
We note that, although orders entered by the juvenile court indicate that the trial was scheduled for and was conducted on August 6, 2018, the transcript itself indicates that the trial was conducted on August 5, 2018.
Following the completion of the trial, the juvenile court, on February 15, 2019, entered a judgment that, among other things, denied the father's motion for temporary custody as moot; granted his petition to modify custody, awarding the father sole physical custody of the child, subject to certain specified visitation awarded to the mother; ordered the mother to pay child support to the father in the amount of $388 per month; denied the mother's motions for emergency relief and to suspend the father's visitation as moot; and granted the mother's counterclaim seeking to hold the father in contempt, directing that the father "shall be sanctioned for such contempt by losing child support payments for August, September and October 2018." Although the juvenile court's February 15, 2019, judgment addressed the issues raised in the .04 action, that judgment referenced the .03 action. The mother filed a postjudgment motion on March 1, 2019, that also referenced the .03 action; that motion was denied by operation of law on March 15, 2019. See Rule 1(B), Ala. R. Juv. P. On March 19, 2019, the mother filed a notice of appeal in both the .03 action and the .04 action. The appeal from the .03 action was assigned appeal number 2180464, and the appeal from the .04 action was assigned appeal number 2180465. On March 21, 2019, this court entered an order consolidating appeal number 2180464 and appeal number 2180465.
The juvenile court entered an order in the .03 action on March 25, 2019, noting that the mother's postjudgment motion for a new trial had been denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P.
On April 18, 2019, the mother filed a motion in the .04 action, asserting that the juvenile court's February 15, 2019, judgment had been wrongfully rendered in the .03 action and that the mother's March 1, 2019, postjudgment motion had been wrongfully filed in the .03 action; the mother requested that the juvenile court direct the juvenile-court clerk to "move said judgment and said motion" to the .04 action, pursuant to Rule 60(a), Ala. R. Civ. P. On June 26, 2019, the juvenile court entered an order in the .04 action stating that it had been brought to the court's attention that two clerical errors existed -- that the February 15, 2019, judgment had been inadvertently rendered in the .03 action and that the mother's postjudgment motion had also been filed in the .03 action. Recognizing its jurisdiction to correct those errors pursuant to Rule 60(a), the juvenile court directed the clerk of the court to "move the judgment issued on February 15, 2019, and the [mother's postjudgment motion] filed on March 1, 2019, from [the .03 action] to [the .04 action]."
On November 26, 2019, this court entered an order directing the parties to submit letter briefs regarding (1) whether the mother's notice of appeal in the .04 action was timely filed; (2) whether the juvenile court could correct the mother's error of filing her postjudgment motion in the .03 action rather than in the .04 action; and (3) whether the juvenile court's June 26, 2019, order corrected that error such that the mother's postjudgment motion tolled the time for taking an appeal from the judgment entered in the .04 action.
II. Appeal Number 2180464
It is clear that the mother filed a notice of appeal in the .03 action based solely on the juvenile court's February 15, 2019, judgment being wrongfully rendered in the .03 action. The claims at issue in the .03 action were resolved by the juvenile court's November 17, 2017, judgment, and neither party filed a timely postjudgment motion or an appeal from that final judgment.
The mother admits in her brief to this court that her postjudgment motion was filed in the .03 action only because the juvenile court's judgment addressing the .04 action was rendered in the .03 action and that she had filed her notice of appeal in the .03 action "out of an abundance of caution." (The mother's brief, p. 2.) Because there is no justiciable controversy between the parties with regard to the .03 action, we dismiss appeal number 2180464 as moot. See South Alabama Gas Dist. v. Knight, 138 So. 3d 971, 974 (Ala. 2013) ("When an action becomes moot during its pendency, the court lacks power to further adjudicate the matter.").
III. Appeal Number 2180465
A. Jurisdiction
Although neither party has raised the issue of subject-matter jurisdiction,
"[i]t is well settled that ‘subject-matter jurisdiction may not be waived; a court's lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.’ C.J.L. v. M.W.B., 868 So. 2d 451, 453 (Ala. Civ. App. 2003) ; see, e.g., Ex parte Norfolk S. Ry. Co., 816 So. 2d 469, 472 (Ala. 2001) (‘We are obliged to recognize an absence of subject-matter jurisdiction obvious from a record, petition, or exhibits to a petition before us.’). A judgment entered by a court that lacks subject-matter jurisdiction is void. See C.J.L., 868 So. 2d at 454 ; see also J.B. v. A.B., 888 So. 2d 528 (Ala. Civ. App. 2004)."
S.B.U. v. D.G.B., 913 So. 2d 452, 455 (Ala. Civ. App. 2005).
The mother asserts in her brief to this court and in her letter brief that the juvenile court's June 26, 2019, order addressed the clerical error pursuant to which its final judgment was rendered and the mother's subsequent postjudgment motion was filed in the .03 action rather than in the .04 action such that her notice of appeal was timely filed. We agree. Rule 60(a) provides, in pertinent part:
"Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court."
In the present case, the juvenile court directed the clerk of the court to "move the judgment issued on February 15, 2019, and the [mother's postjudgment motion] filed on March 1, 2019, from [the .03 action] to [the .04 action]." This court has observed that Rule 60(a) contemplates mistakes that are mechanical in nature that do not involve a legal decision or judgment by the clerk, counsel, a party, or the judge. Michael v. Michael, 454 So. 2d 1035, 1037 (Ala. Civ. App. 1984). In R.D. v. Coffee County Department of Human Resources, 204 So. 3d 425, 426 n.1 (Ala. Civ. App. 2016), this court reinvested the Coffee Juvenile Court with jurisdiction to correct, pursuant to Rule 60(a), an error pursuant to which judgments terminating parental rights had been entered in incorrect case numbers. Thus, we conclude that the juvenile court acted within the purview of Rule 60(a) in correcting its judgment and the mother's postjudgment motion in the present case when it modified only the case number and not the date of the judgment or the postjudgment motion. Compare K.P. v. Madison Cty. Dep't of Human Res., 243 So. 3d 835, 839 (Ala. Civ. App. 2017) (order purporting to modify the date a judgment was rendered, thereby causing otherwise untimely notice of appeal to be timely, was impermissible pursuant to Rule 60(a) ). Because an order entered pursuant to Rule 60(a) relates back to the date of the order or judgment it amends, see Hargrove v. Hargrove, 65 So. 3d 950, 952 (Ala. Civ. App. 2010), the mother's postjudgment motion was timely filed on March 1, 2019, in the .04 action; that motion was denied by operation of law on March 15, 2019; and the mother's notice of appeal to this court filed on March 19, 2019, was therefore timely. See Rule 28(C), Ala. R. Juv. P. Accordingly, we conclude that this court has jurisdiction over appeal number 2180465, and we proceed to consider the merits of the issues raised by the mother in that appeal.
We note that the State Judicial Information System's case-action-summary sheet indicates that the juvenile court's February 15, 2019, judgment was entered on that date in the .04 action. The State Judicial Information System's case-action-summary sheet for the .04 action also contains entries dated June 26, 2019, indicating that the juvenile court's judgment was entered on February 15, 2019, and that the mother's postjudgment motion was filed on March 1, 2019. Even assuming that the juvenile court's judgment was properly entered in the .04 action on February 15, 2019, we conclude that the juvenile court's June 26, 2019, order directing the juvenile-court clerk to modify the case number in which the mother's postjudgment motion was filed was within the juvenile court's authority, pursuant to Rule 60(a).
B. Facts
A neighbor of the mother's ("the neighbor") testified first and stated that he had grown close to the child, who was 16 years old at the time of the trial, and that the child had confided in him and his wife that she had become sexually active and that the mother had beaten the child with a belt.
The mother denied that she had physically disciplined the child, although she later admitted that she had spanked the child when the child was 13 years old, leaving marks on the child's backside, and that, in another incident when the child was in the seventh or eighth grade, she had "popped" the child for "back-talking." According to the mother, she had not spanked the child since the child was 13 years old. The child testified in the chambers of the juvenile-court judge with the consent of both parties. The child agreed that the mother had "back-handed" her for "smart-mouthing" and that, when she was 13, the mother had beaten her, causing bruising on her back and down her legs. She testified further that the mother had not hit her so severely since that time.
The child testified that she had become sexually active when she was 15 years old and that she had engaged in sexual activity with approximately 7 or 8 people. She stated that she had informed the father of her sexual activity and that he had been concerned and had tried to discuss with the mother his disfavor of the child's relationship with a boy who was 18 years old. The child indicated that the mother had encouraged or facilitated her relationship with the older boy despite the father's warnings and her previous knowledge of the relationship. According to the child, the mother had become more relaxed and less strict with the child to deter her from wanting to live with the father. The child testified that she wanted to change her negative behaviors, that she had been trying to tell the truth and to be a better person, and that she wanted to escape her reputation regarding her sexual behavior with boys.
According to the child, the majority of the students at the school she attends when in the custody of the mother are "all into bad stuff" or their parents are on drugs, there are not many good people to choose from as friends, and she does not have many friends as a result. She testified that the school she was attending at the outset of the trial while in her mother's custody is very small and that there are more activities and classes available at the school she would be attending while living with the father. The child also stated that she wants to attend cosmetology school and that there is no trade school that provides training for that trade near the mother's home. The child testified that she was seeking a fresh start with better opportunities. She stated that she felt that moving in with the father would be better for her and that she stays out of trouble when she is at the father's house because there is more for her to be involved in there.
The child also testified that she did not want to remain in the mother's custody because she did not want to attend "The Ramp." The mother testified that "The Ramp" is a nondenominational church in Hamilton, that it is associated with a ministry school, and that it holds conferences throughout the year. The mother stated that she had received an e-mail from the father before she was scheduled to pick up the child from his visitation so that the child could attend a conference at "The Ramp" and that the father had expressed that he did not want the child to attend that conference based on his concerns that the experience is cult-like. According to the mother, the child had wanted to attend the conference until the night before they were to leave for Hamilton. The child testified that she did not feel comfortable at "The Ramp" but that the mother had not listened to her when she expressed her unwillingness to attend that church. She spoke to "crazy stuff" that occurred at "The Ramp," testified that the mother had encouraged her to go on stage at one of the conferences to see a healer that was present, and stated that there were things that were said and done at those events that made her uncomfortable.
The mother agreed that there were issues relating to drugs, pregnancy, and drinking at the child's current school. She testified that she had learned that the child was sexually active when the child was 15 years old and that she had had a long talk about that with the child. The mother admitted having encouraged the child to continue seeing the older boy she had been seeing and to give him a second chance; she testified, however, that, after learning that the child no longer wanted to engage in a sexual relationship with that boy, the mother had no longer wanted the child to go out with him and have sex with him.
According to the mother, the child had told her that she wanted to move in with the father because her best friends live near the father and in the area of his residence. The mother testified to an incident when the child had run away from the neighbor's house while she was with the father and had arrived at the mother's house crying and worried that she was going to get in trouble with the father. The mother also stated that the child had missed school at times because the father had refused to return the child to her custody on days when the mother was working. She testified that the child had drunk alcohol both at her house and at the father's house. The mother stated that she had instructed the child to take pictures of the father at his house, that she believed the father drinks alcohol based on what other people had told her, and that "[i]t just all adds up."
The child testified that the mother had asked her to take pictures of the father passed out drunk or of beer in his refrigerator, but, she said, she could not do that because the father had never passed out drunk in her presence. With regard to the father's drinking, the child testified that he did not drink alcohol around her in the year preceding the trial and that he is never drunk in her presence. The child testified that the mother is a good mother and does not neglect her, but, she said, the mother gets mad and doles out irrational punishments without listening to the child; the child also testified that the mother does not want to hear the child's opinions. She stated that the mother had told her what to say in court and that she is scared of the mother. The child stated that the father is not perfect but that he had tried to be cooperative with the mother and the mother had not worked with the father. She stated that she feels more comfortable talking to the father than to the mother because the father is more understanding. Additionally, the child testified that the father requires her to inform her of where she is going, tracks her through her cellular telephone, and is cautious about who she will be with when she leaves his house. She testified that she is "mentally more healthy" living with the father." The child admitted to having previously stated in July 2018 that she did not want to live with the father because he is crazy and he lies but that she had thought that at the time only because that is what her mother had told her, and, she said, she had learned since that time that those things were not true about the father.
The father testified that he had concerns about the child and her mental state at the mother's house because the mother berates and manipulates the child. He testified that he was concerned that the behavioral and other problems the child was experiencing were not being addressed at the mother's house and that he had concerns regarding the mother's ability to control the child's behavioral issues. According to the father, the child had sometimes arrived at his house with bruises and burns. He stated that the mother had been difficult in their interactions since the child was 10 years old, that she had shut him out, and that she is "irrational and unreasonable and her decision-making skills... are so extreme." The father testified that the mother had refused to work with him with regard to visitation exchanges of the child and that, in the years preceding the trial, the mother had begun implementing odd religious behavior along with exhibiting a difficult attitude toward him. He stated that she had begun writing strange and disturbing messages and that sometimes she responded to his e-mails only with scripture or Bible verses. The mother admitted that, during one series of e-mails during which she and the father had been arguing, she had replied with Bible verses to avoid saying anything bad or mean because she had become frustrated.
C. Issues
1. Hearsay
The mother first argues on appeal that the juvenile court erred in allowing a witness to testify to statements that had been made by the child. At the trial, the neighbor testified that he had known the child for years and that the child had confided in him regarding, among other things, the mother's having hit the child, the child's sexual activity, and the mother's approval of the child's older boyfriend. The mother's attorney objected to the neighbor's testimony regarding statements that had been made by the child. The juvenile-court judge and the father's attorney made statements in response to the objection indicating that the child was a party to the case.
The mother argues on appeal that the juvenile court erred in allowing the neighbor to testify regarding statements that had been made by the child because the child had not been made a party to the case. The mother is correct that the neighbor's testimony regarding the child's statements did not qualify as an admission by a party opponent such that it was not hearsay in accordance with Rule 801(d)(2), Ala. R. Evid. Regardless, we note that each of the child's statements recited by the neighbor were also testified to by either the mother or the child without objection. Thus, the objectionable testimony by the neighbor was cumulative of other legally admitted evidence, and, accordingly, any error in admitting those statements by the neighbor were harmless. See Rule 45, Ala. R. App. P.; and T.C. v. Cullman Cty. Dep't of Human Res., 899 So. 2d 281, 290 (Ala. Civ. App. 2004) (holding that hearsay present in admitted exhibit was cumulative of legally admitted evidence and did not prejudice substantial rights of the party against whom the evidence was presented).
2. Child Custody
The mother next argues on appeal that the juvenile court erred in modifying the child's custody. In Walker v. Lanier, 180 So. 3d 39, 42 (Ala. Civ. App. 2015), this court outlined the applicable standard of review:
" ‘When evidence in a child custody case has been presented ore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination –- it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994), wherein this Court, quoting Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993), set out the well-established rule:
" ‘ " ‘Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So. 2d 440 (Ala. Civ. App. 1989), and Vail v. Vail, 532 So. 2d 639 (Ala. Civ. App. 1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So. 2d 1343 (Ala. Civ. App. 1990) ; Flowers v. Flowers, 479 So. 2d 1257 (Ala. Civ. App. 1985).’ "
" ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’
" Ex parte Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996).
"The law is well settled that ‘[a] parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon [, 455 So. 2d 863 (Ala. 1984) ].’ Adams v. Adams, 21 So. 3d 1247, 1252 (Ala. Civ. App. 2009). The custody-modification standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), requires that
" ‘the noncustodial parent seeking a change of custody must demonstrate (1) "that he or she is a fit custodian"; (2) "that material changes which affect the child's welfare have occurred"; and (3) "that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child." Kunkel v. Kunkel, 547 So. 2d 555, 560 (Ala. Civ. App. 1989) (citing, among other cases, Ex parte McLendon, 455 So. 2d 863, 865–66 (Ala. 1984) (setting forth three factors a noncustodial parent must demonstrate in order to modify custody)).’
" McCormick v. Ethridge, 15 So. 3d 524, 527 (Ala. Civ. App. 2008). It is not sufficient for a noncustodial parent seeking a modification of custody to show that he or she is a fit custodian. Id. The noncustodial parent must prove all three McLendon factors in order to warrant a modification of custody. Id."
To the extent the mother argues that the juvenile court might have applied the incorrect legal standard, we note that, in its judgment, the juvenile court referred to each of the three factors outlined in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), in support of the modification of custody. Having determined that the juvenile court applied the correct legal standard in modifying custody, we proceed to consider the remaining arguments raised by the mother in her appeal with regard to whether the circumstances in the present case were sufficient to satisfy the McLendon standard. The mother argues that the evidence presented does not support a change of custody. She asserts further that neither the decline in the relationship between the mother and the child nor the child's preference to live with the father are sufficient to support the juvenile court's judgment.
In the present case, the juvenile court heard testimony indicating that, in the years leading up to the filing of the father's custody-modification petition, the mother had spanked the child and left marks on her body; that the child was scared of the mother; that the mother had changed her religious practices in a way that made the child uncomfortable; that there were better opportunities for the child, educationally and vocationally, near the father's residence; that the child is exposed to a healthier environment for improving her behavior in the father's custody; that the mother had encouraged the child to continue in a relationship with someone she had reason to believe was a negative influence on the child; that the mother had not attempted to correct bad behavior in the child; and that the child was mentally healthier in the father's care. Testimony was also presented indicating that the mother had instructed the child to take photographs of the father drinking alcohol and that the mother had instructed the child regarding her testimony in court.
We conclude that the juvenile court's finding that material changes affecting the child's welfare had occurred are supported by the foregoing evidence regarding the mother's attempts to alienate the child from the father, the mother's failure to respond to the child's bad behaviors, the mother's concerning behavior, and the child's fear of the mother. The juvenile court could have determined from the child's testimony indicating that the father had listened to her concerns regarding her behavioral issues and had responded with attempts to correct her behavior that the father would be a fit and proper custodian for the child. Given the testimony presented, the juvenile court could have also determined that the evidence regarding the better academic, vocational, and social opportunities available to the child in the father's custody supported a finding that the positive good of a modification of custody would outweigh any disruptive effects. The child expressed her preference to live with the father based on those and other reasons. "Although a child's preference is not dispositive on a custody-modification determination, a trial court may assign much weight to the custody preference of a child of sufficient age and discretion." C.M.L. v. C.A.L., [Ms. 2170922, July 26, 2019] ––– So. 3d ––––, –––– (Ala. Civ. App. 2019). It is apparent that, in the present case, the juvenile court afforded much weight to the child's testimony regarding her well-being and the parents' contributions to the same. Moreover, the juvenile court had before it evidence of additional factors to consider with regard to the modification of custody beyond any improvements the father might have made with regard to his parenting, including drinking less alcohol; the child's preference to live with the father; and the decline in the child's relationship with the mother. This court cannot substitute its judgment for that of the juvenile court. Because the juvenile court's modification of custody is not so unsupported by the evidence that it amounts to an abuse of the juvenile court's discretion, we affirm the juvenile court's judgment insofar as it modified custody of the child.
3. Child Support
The mother argues that the juvenile court erred in ordering her to pay monthly child support of $388. In Walker v. Lanier, 221 So. 3d 470, 473-74 (Ala. Civ. App. 2016), this court stated, in pertinent part:
"The application of the Rule 32[, Ala. R. Jud. Admin.,] child-support guidelines is mandatory. Thomas v. Norman, 766 So. 2d 857, 859 (Ala. Civ. App. 2000). ‘The trial court is not bound by the income figures advanced by the parties, and it has discretion in determining a parent's gross income. However, " ‘[t]his court cannot affirm a child-support order if it has to guess at what facts the trial court found in order to enter the support order it entered....’ " Willis v. Willis, 45 So. 3d 347, 349 (Ala. Civ. App. 2010) (quoting Mosley v. Mosley, 747 So. 2d 894, 898 (Ala. Civ. App. 1999) ).’ Morgan v. Morgan, 183 So. 3d 945, 961 (Ala. Civ. App. 2014)."
In Walker, this court reversed a judgment establishing a child-support award and remanded the case because we were unable to discern from the record the figures used in calculating the child-support obligation. 221 So. 3d at 474.
In the present case, the father agrees with the mother's assertion on appeal that the juvenile court's child-support determination is not supported by the record on appeal. The father presented to the court two Form CS-41 income affidavits –- one indicating that, on November 16, 2017, he was earning $6,000 per month and a second indicating that, on September 5, 2018, he was earning $7,000 per month. The mother presented a Form CS-41 income affidavit indicating that she earns $1,655.33 per month. A CS-42 form is included in the record, which calculates a child-support obligation for the mother in the amount of $252.23 per month using the amounts of $7,000 of monthly income for the father and $1,655.33 of monthly income for the mother. Using the $6,000 income figure for the father, the mother's recommended child-support obligation would be $277.32 per month according to the child-support guidelines. See Rule 32(A), Ala. R. Jud. Admin. There is no indication in the record that additional income by either parent was reported. Because we are unable to discern from the record how the juvenile court calculated the amount of child support it ordered the mother to pay to the father, we reverse the juvenile court's judgment establishing the child-support award and remand the case to the juvenile court to recalculate the mother's child-support obligation in compliance with the Rule 32 child-support guidelines and this opinion.
IV. Conclusion
We dismiss as moot appeal number 2180464. In appeal number 2180465, we affirm the juvenile court's judgment with regard to the modification of custody and with regard to the mother's argument on appeal regarding inadmissible hearsay. We reverse the juvenile court's judgment in appeal no. 2180465 with regard to the juvenile court's calculation of the mother's child-support obligation, and we remand the case to the juvenile court.
2180464—APPEAL DISMISSED.
2180465—AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur.