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Court Case Record Tony Hayden KWASIGROH. v. Samantha Leanne KWASIGROH. 2150038 UID(5da6)


Tony Hayden KWASIGROH. v. Samantha Leanne KWASIGROH. Court Case Record

Court Case Number: 2150038


 
Case Number2150038
Case TitleTony Hayden KWASIGROH. v. Samantha Leanne KWASIGROH.
Case TypeCivil
StateAlabama, AL
County
CourtCourt of Civil Appeals of Alabama.
Court Address
Phone
Field Date5/13/2016
Close Date

Parties

CounselNameType
Tony Hayden KWASIGROH.Appellee/Petitioner
Samantha Leanne KWASIGROH.Appellant/Defendant
Details
Tony Hayden Kwasigroh (“the father”) appeals from a judgment of the Madison Circuit Court (“the trial court”) that denied both the father's petition to modify custody and child support and a counterclaim filed by Samantha Leanne Kwasigroh (“the mother”) to modify custody and child support.
The parties were divorced on October 7, 2011. In the divorce judgment, the trial court awarded the parties joint custody of their four minor children.1 No child support was awarded to either party.
On July 29, 2013, the trial court entered a judgment that incorporated an agreement of the parties that modified the divorce judgment. In that July 29, 2013, judgment, the trial court ordered that the joint-custody award be maintained but ordered the father to pay $500 per month in child support.
On January 28, 2014, the father filed a petition seeking to modify custody, an award of child support, and to have the mother held in contempt for alleged violations of certain provisions of the previous judgments. The mother answered and counterclaimed, seeking an award of sole legal and sole physical custody of the children and a recalculation of child support. On December 22, 2014, the trial court appointed a guardian ad litem to represent the children.
The trial court received ore tenus evidence at a hearing over the course of two days in July 2015. On August 12, 2015, the trial court entered an order in which it, among other things, denied both parties' requests for a modification of custody and ordered the parties to submit a joint calculation of the child-support arrearage owed by the father.
On August 25, 2015, the father filed a purported postjudgment motion raising arguments pertaining to, among other things, the trial court's failure to modify child support and requesting a hearing on the motion. However, a Rule 59(e), Ala. R. Civ. P., postjudgment motion may be filed only in reference to a final judgment. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003); Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999). The trial court's August 12, 2015, order did not rule on the mother's claim for the determination of the father's child-support arrearage, and it instead ordered that additional evidence be presented with regard to that claim.2 Accordingly, the August 12, 2015, order was not a final judgment. Trousdale v. Tubbs, 929 So.2d 1020, 1022–23 (Ala.Civ.App.2010).
On August 27, 2015, the trial court entered an order denying the father's purported postjudgment motion.3 As a part of that order, the trial court ordered the parties to compute the father's child-support arrearage and to submit those calculations to it. On September 3, 2015, the trial court entered an order finding that the father had a child-support arrearage in the amount of $11,721.88 and entering a judgment in favor of the mother in that amount. The September 3, 2015, order, because it resolved the last of the parties' pending claims, constituted a final judgment. Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1069–70 (Ala.Civ.App.2005). The father timely appealed.
The father asserts various arguments that the trial court erred in refusing to modify his child-support obligation.4 The record reveals the following pertinent facts.
At the time the July 29, 2013, modification judgment was entered, the father had been employed by an employer he referred to as “SAIC,” earning approximately $100,000 each year. The father lost that job in March 2014; the record does not indicate why the father lost that job.
The father was then unemployed until August 1, 2014, when he was hired as a full-time science teacher earning in the “mid thirties” each year. The father resigned that job after only three months to avoid being fired. The father stated that the incident that led to his resignation occurred when a student challenged the father to a wrestling match during class and the father agreed and wrestled the student. The father stated that the wrestling incident was a “poor choice” that resulted in his losing that teaching job.
The father testified that, after he lost the teaching job, he submitted 50 to 60 job applications during a 2–month period before he obtained a job selling generators. The father stated that he had had difficulty finding another job, and that his income had decreased, because of arrest records and mugshots that were posted online. The father blamed the mother for bringing the charges against him that resulted in the arrest records being online. One mugshot was online as a result of a charge of theft of property brought by the mother; that charge was later dismissed. The father also had been charged with domestic violence and harassment against the mother before the entry of the July 29, 2013, modification judgment; the father testified that those charges had resulted in a “not-guilty” decision after he completed “diversion.”
The father testified that he had been employed selling home standby generators since January 2015. The father's testimony indicates that he is an independent contractor; he stated that he was paid only if and when he made sales.5 The father submitted into evidence an exhibit that he represented indicated his income as being $7,600 between January 28, 2015, and June 12, 2015. That exhibit was a “vendor quick report,” apparently showing amounts the generator seller had paid him; several amounts were marked out on that exhibit, and a handwritten figure indicates that the amounts on that exhibit represent an income of $1,266 per month. On his CS–41 Child–Support–Obligation Income Statement/Affidavit, filed pursuant to Rule 32, Ala. R. Jud. Admin., the father represented that his income was $1,266 per month. We note that the father testified that he receives food stamps and other government-assistance benefits in the amount of $750 per month; those amounts are not included in a determinatio
The father admitted that he has not paid child support since January 2014. The father testified that, at that time, he lost the job at which he had earned $100,000, a year, and he claimed that he had not paid child support because of a lack of income and because the children have been living with him three out of four weeks each month. The father testified that the current physical-custody arrangement is one of joint physical custody, with the parties alternating weeks when they have physical custody of the children, but that the children stay with him when the mother is working night shifts, even if it is the mother's week to have custody. The father testified that the oldest child lives with the father and does not stay overnight at the mother's home like the other children.
The mother testified that she had been a stay-at-home mother before she became a nurse five years before the hearing in this matter, and she stated that she was considering going back to school to become a nurse practitioner. The mother testified that she had been employed at Huntsville Hospital in the cardiovascular-intensive-care unit since August 2014. She testified that she was also listed as an employee on the payrolls of two nursing homes at which she had previously been employed. The mother explained that she occasionally saw patients at one of those nursing homes but that she rarely worked at the other.
The mother testified that she earns $21.80 per hour and that she earns approximately $3,000 per month if she works extra shifts. She testified that she currently worked the night shift but was trying to move to the day shift. She stated that she had already discussed changing shifts with her manager, who had just hired 24 new workers, and was told that she would receive the next day-shift position that became available. She stated that she normally worked three nights out of the week but that she keeps the weekends free so that she can spend time with the children and attend their events. The mother testified that a complaint against her was received by the nursing board from the father, who reported that the mother had stolen drugs from Huntsville Hospital.
The mother testified that she put the children on her health insurance when she started working for her current employer. The father is under a previous court order to pay 75% of the children's uninsured medical expenses. The mother testified that one of the children needs braces and that the braces will cost $5,000 even with dental insurance. She stated that she asked the father to help her pay for the braces, but, she said, he told her that he could not afford to help. The mother testified that she has been working extra shifts to earn money to pay for the child's braces.
After the hearing, the trial court issued an order on July 8, 2015, requiring the children's guardian ad litem to visit the mother's home, which she shares with her fiancé, within 30 days and then to submit a written report to the court. In her report to the trial court, the guardian ad litem noted, in pertinent part:
“The father has not paid support as ordered, stating that he was unemployed and unable to pay. The mother has taken an overnight nursing job for higher pay. However, this makes her unable to have the children for a significant portion of her weeks, and the children, as a result, have spent approximately 75% of their time in the father's care.”
In her recommendations to the trial court on the issues of child support and child custody, the guardian ad litem expressed the opinion that the father should not “be rewarded for failure to pay child support, thus forcing the mother to work overnights for higher pay [and] forcing the mother to relinquish the children to the father for much of her week.”6
We note that, during the pendency of this matter, the father failed to respond to the mother's requests for admissions. The requests for admissions largely concerned questions pertinent to the issue of custody of the parties' children. On October 28, 2014, the trial court entered an order granting the mother's motion to deem admitted her requests for admissions to the father. Thus, the mother's requests for admissions were deemed conclusively established. Rule 36, Ala. R. Civ. P. During the hearing, the mother's attorney repeatedly objected to testimony provided by the father that contradicted those deemed admissions, and the trial court eventually gave the mother a standing objection.
The father did not seek to have the October 28, 2014, order set aside, and he made no objection to the trial court's consideration of the deemed admissions when the hearing began.7 However, in his testimony, the father asked the trial court to base its judgment on the ore tenus evidence presented at the hearing rather than on the deemed admissions. The record contains no indication that the trial court agreed to disregard the October 28, 2014, order regarding the mother's requests for admissions. In his brief on appeal, the father has not addressed the effects of the October 28, 2014, order on appeal, nor has he argued that the trial court abused its discretion in entering that order. See Thomson v. Bank, 506 So.2d 1012, 1014 (Ala.Civ.App.1987) (a determination whether to deem requests for admissions admitted due to a failure to respond, or to an untimely response, is within the trial court's discretion).
The requests for admissions that were deemed admitted by virtue of the October 28, 2014, order and that could be said to affect that part of the trial court's judgment concerning child support established that, at the time the October 28, 2014, order was entered, the father had no basis for the allegations in his petition to modify,8 that he had anger issues, that he was unemployed because he could not control his anger, that he had refused to seek employment, and that he could obtain employment if he obtained treatment for his anger issues.