Birger Kristian Rasmussen v. Jennifer Ladner Rasmussen

REL: February 3, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________

2210311 and 2210469
_________________________

Birger Kristian Rasmussen

v.

Jennifer Ladner Rasmussen

Appeals from Jefferson Circuit Court
(DR-15-901811.01 and DR-15-901811.02)

MOORE, Judge.

In appeal number 2210311, Birger Kristian Rasmussen ("the

father") appeals from a judgment entered by the Jefferson Circuit Court

("the trial court") in case number DR-15-901811.01 ("the .01 action"),

holding him in contempt and modifying the provisions of an earlier

judgment divorcing him from Jennifer Ladner Rasmussen ("the mother").
2210311 and 2210469

In appeal number 2210469, the father appeals from a judgment entered

by the trial court in case number DR-15-901811.02 denying, in part, his

petition to modify the parties' divorce judgment. In appeal number

2210311, we affirm the trial court's judgment in part and reverse it in

part. In appeal number 2210469, we affirm the trial court's judgment.

Procedural History

The parties were divorced by a judgment entered by the trial court

on March 16, 2017; that judgment incorporated an agreement of the

parties that, among other things, awarded the wife the marital residence

and awarded the parties joint legal custody of their children -- Quaid,

who was born on October 7, 2000; Clayton, who was born on March 16,

2002; and Reese, who was born on March 23, 2004. The mother was

awarded sole physical custody of the children subject to the father's

visitation and the father was ordered to, among other things, pay child

support to the mother in the amount of $3,500 per month; to pay half of

the costs for Reese's extracurricular activities until she commenced high

school and thereafter to the extent that the costs for her high-school

extracurricular activities "are not covered by the spirit pack" included in

2
2210311 and 2210469

the high-school education fund, which is discussed and described in more

detail below; 1 to provide health insurance for the benefit of the children;

and to pay half of the medical expenses incurred by the children that are

not covered by insurance. The divorce judgment also contains the

following provisions:

"24. College Funds: The parties have 529 college
accounts[2] for each child at Merrill Lynch. Such funds shall
be dedicated to the college education of the children and shall
be used for no other purpose than same without the mutual
express agreement of both parties. [The father] shall provide
to [the mother] copies of the end of year statement for each
account within 30 days of his receipt of same. If there are any
funds remaining in Quaid's 529 when he graduates from
college, then that amount will be divided in half and deposited
in equal amounts into the 529 accounts for Reese and Clayton.
If there are funds remaining in Clayton's 529 account when

1The father testified that the "spirit pack" includes costs related to
the children's participation in high-school athletics.

2In Adams v. Adams, 107 So. 3d 194, 196 n.1 (Ala. Civ. App. 2012),
this court explained, with regard to 529 college accounts:

"Congress created a tax exemption found in 26 U.S.C. §
529 in order to encourage taxpayers to save for future college
expenses. See S. Rep. No. 104-281, 106, Pub. L. No. 104-188,
1996 U.S.S.C.A.N. 1474, 1580 (stating that the reason for the
change in the law was to 'clarify the tax treatment of State-
sponsored prepaid tuition programs and educational savings
programs in order to encourage persons to save to meet post-
secondary educational expenses')."
3
2210311 and 2210469

he graduates from college, then that amount will be deposited
into the 529 account for Reese.

"25. High School Education: The parties shall segregate
into a separate account at Merrill Lynch the sum of One
Hundred Twenty-Five Thousand ($125,000.00) to be used for
the high school education of the children, with said sum to be
paid from the joint Merrill Lynch investment account. Said
account shall be in the joint names of the parties and no
withdrawals shall be made from same without the express
mutual written agreement of the parties other than to pay the
tuition, lunch account, registration fees, facility fees and spirit
pack costs to Briarwood School (or other mutually agreed
upon school). Should any funds remain after the last child
completes Briarwood (or other mutually agreed upon school),
any remaining funds shall be transferred into the children's
529 plans with an equal amount to be deposited into each
account."

On October 11, 2019, the mother filed in the .01 action a verified

petition for a rule nisi and a motion to modify the divorce judgment. She

asserted, among other things, that the father had failed to pay child

support as ordered in the divorce judgment and that he was in arrears in

the amount of $2,000 at that time; had failed to pay his portion of the

children's medical expenses that were not covered by insurance; and had

failed to provide her with statements for the children's educational

accounts as ordered in the divorce judgment. The mother requested that

the trial court hold the father in civil and criminal contempt, direct the
4
2210311 and 2210469

father to pay the amounts owed for unpaid child support and medical

expenses, and award her all costs of bringing the action. The mother also

sought a modification of the divorce judgment to allow her to supervise

the accounts containing educational funds for the children and an award

of attorney's fees. The father filed an answer to the mother's petition on

December 13, 2019. On that same date, the father filed a motion seeking

to modify the divorce judgment regarding custody of the children and his

child-support obligation to the mother. In response to an objection filed

by the mother, the trial court directed the father to pay a filing fee to

initiate a separate case to pursue the relief he was seeking in his

December 13, 2019, motion.

In response to the trial court's order in the .01 action, the father

filed, on April 21, 2020, a petition seeking to modify the divorce judgment

to terminate or reduce the amount of his child-support obligation, to

increase his custodial periods with the children, and to award him credits

against his current child-support arrearage and any future child-support

payments; that action was assigned case number DR-15-901811.02 ("the

.02 action"). With regard to his request for a modification of his child-

5
2210311 and 2210469

support obligation, the father asserted, among other things, that Quaid

had reached the age of majority, that Clayton would soon reach the age

of majority and would be attending college, and that the needs of the

remaining minor children had changed. The trial court entered orders in

the .01 action and the .02 action consolidating the cases for trial.

In response to a motion filed by the mother, the trial court entered

an order in the .01 action on January 31, 2021, directing the father to

transfer the 529 college account for the parties' oldest child, Quaid, into

the mother's name or to add the mother's name to the account in order to

allow her to administer and to control the account. The trial court also

ordered the father to reimburse the mother for the payment of Quaid's

rent in the amount of $705.10 within 48 hours of the entry of the order.

The trial commenced on May 10, 2021, and was subsequently

concluded on December 1, 2021. On December 1, 2021, the trial court

entered an order in the .01 action in which it found the father in criminal

and civil contempt for his willful failure to comply with the court's orders

regarding his failure to pay child support and the half of the children's

noncovered medical expenses that had been incurred and directing that

6
2210311 and 2210469

he be incarcerated for 45 days or, in the alternative, released upon the

payment of a cash bond in the amount of $25,000.

On December 18, 2021, the trial court entered a final judgment in

the .01 action reducing the father's child-support obligation to $1,000 per

month beginning January 15, 2022, based on the parties' two older

children having attained the age of majority; denying the father's request

for a retroactive reduction of his child-support obligation because, the

trial court stated, he had "come[] to court with unclean hands;"

determining that the father owed an arrearage for unpaid child support

in the amount of $65,000, plus interest of $6,000, but crediting the father

$25,000 toward that arrearage based on the father's payment thereof on

December 1, 2021; denying the father's petition to modify custody;

directing the father to transfer ownership of the 529 college accounts to

the mother; directing the mother to administer all of the children's

educational accounts, including the high-school education fund;

determining that the father owed an arrearage in the amount of

$15,548.24 for unpaid medical expenses and activity fees for the children;

noting that the contempt issue had been addressed by a separate order;

7
2210311 and 2210469

directing the father to pay $30,000 toward the mother's attorney's fees;

and denying all remaining requested relief. That same judgment was

entered in the .02 action on December 20, 2021.

Both the mother and the father filed timely postjudgment motions

in both the .01 action and the .02 action. Following a hearing, the trial

court entered an order in the .01 action on February 7, 2022, denying

both parties' postjudgment motions. The father's notice of appeal in the

.01 action, which had been filed on January 11, 2022, and had been held

in abeyance during the pendency of the parties' postjudgment motions,

became effective at that time. See Rule 4(a)(5), Ala. R. App. P. On

February 15, 2022, the trial court entered an order in the .02 action

denying both parties' postjudgment motions. The father filed his notice

of appeal in the .02 action on March 11, 2022. This court consolidated

the appeals in response to a motion filed by the father.

Appeal Number 2210311

Contempt

We first address the father's challenges to the order entered in the

.01 action finding him guilty of civil and criminal contempt. The father

8
2210311 and 2210469

argues that the trial court's finding of civil contempt is due to be reversed

because the order speaks only to criminal contempt. Our supreme court

has observed that the elements of civil and criminal contempt often

overlap but that, "[i]n appropriate circumstances, … a party's actions can

support a finding of both civil and criminal contempt." State v. Thomas,

550 So. 2d 1067, 1073 (Ala. 1989). This court discussed the standard of

review as to criminal and civil contempt in Kizale v. Kizale, 254 So. 3d

233, 237-38 (Ala. Civ. App. 2017):

"The two types of contempt -- criminal and civil -- are
governed by different standards of review. In the case of civil
contempt, we have often explained that

" 'whether a party is in contempt of court is a
determination committed to the sound discretion
of the trial court, and, absent an abuse of that
discretion or unless the judgment of the trial court
is unsupported by the evidence so as to be plainly
and palpably wrong, this court will affirm.'

"Stack v. Stack, 646 So. 2d 51, 56 (Ala. Civ. App. 1994); see
also Hammock v. Hammock, 867 So. 2d 355, 359-60 (Ala. Civ.
App. 2003).

"Unlike civil contempt, criminal contempt requires proof
beyond a reasonable doubt of the alleged contemnor's guilt.
See Ex parte Ferguson, 819 So. 2d 626, 629 (Ala. 2001).

9
2210311 and 2210469

" '[T]he standard of review in an appeal from an
adjudication of criminal contempt occurring in a
civil case is whether the offense, i.e., the contempt,
was proved beyond a reasonable doubt. Hicks v.
Feiock, 485 U.S. 624, 108 S. Ct. 1423, 99 L. Ed. 2d
721 (1988); Combs v. Ryan's Coal Co., 785 F.2d 970
(11th Cir. 1986); and United States v. Turner, 812
F.2d 1552 (11th Cir. 1987) .... In Turner, the Court,
in discussing the standard of review in a criminal-
contempt case, said:

" ' "The essential elements of the
criminal contempt for which
punishment has been imposed on [the
defendant] are that the court entered a
lawful order of reasonable specificity,
[the defendant] violated it, and the
violation was wilful. Guilt may be
determined and punishment imposed
only if each of these elements has been
proved beyond a reasonable doubt."

" 'Turner, 812 F.2d at 1563. ...'

"Ex parte Ferguson, 819 So. 2d at 629."

(Footnote omitted.)

Rule 70A(a)(2)(D), Ala. R. Civ. P., defines "civil contempt" as

"willful, continuing failure or refusal of any person to comply with a

court's lawful writ, subpoena, process, order, rule, or command that by

its nature is still capable of being complied with." The father admitted

10
2210311 and 2210469

at the trial that he had unilaterally reduced and had later terminated his

child-support payments despite having the ability to pay. The trial court

determined that the father's willful failure to pay the court-ordered

monthly child-support amount of $3,500 from August to December 2019

and from January 2020 to November 2021 amounted to both civil and

criminal contempt.

The father cites In re Powers, 523 So. 2d 1079, 1082 (Ala. Civ. App.

1988), for the proposition that "[a]n error in judgment without clear and

convincing evidence of bad faith intent is insufficient for a finding of

contempt." He also relies on Rhodes v. Rhodes, 317 So. 3d 37, 47 (Ala.

Civ. App. 2020), in which Judge Moore, joined by Judge Edwards, cited

that proposition from Powers in a special writing concurring in all

aspects of the main opinion except for its affirmance of the finding of

contempt against the husband for his failure to pay child support. The

special writing in Rhodes concluded that the contempt finding in that

case should be reversed because the husband in that case had

mistakenly, with no evidence of bad-faith intent, believed that his child-

support obligation should be reduced based on one of the children having

11
2210311 and 2210469

reached the age of majority. Id. at 47 (Moore, J., concurring in part and

dissenting in part). Unlike in Rhodes, however, the father in the present

case is not an average layperson but, rather, is a practicing attorney, a

fact that the trial court observed during the trial while noting the father's

understanding of the importance of following a court order. Indeed, the

father acknowledged at a September 24, 2020, pretrial hearing that he

"kn[e]w that [he had] done something improper already by reducing the

child support." Thus, the trial court did not err in concluding that the

father's willful failure to comply with the divorce judgment supported a

finding of both civil and criminal contempt.

The father argues that the trial court's order of contempt requires

reversal because it is impossible to determine how the court arrived at

its sentence. We note, however, that the trial court explained at the close

of the trial that, because it was considering the father's request for a

modification to his child-support obligation with regard to the alleged

counts of contempt that had occurred after the filing of the .02 action, it

had limited the bond amount and the counts of contempt for which the

father was sentenced to the nine occasions on which he had unilaterally

12
2210311 and 2210469

reduced his child-support obligation before that filing. Because we are

able to discern how the trial court arrived at its imposition of the father's

sentence of 45 days for the 9 counts of contempt, see § 12-11-30(5), Ala.

Code 1975 (allowing for a maximum punishment of 5 days per count of

contempt), the father's argument does not merit reversal.

The father also argues that the trial court erred in requiring him,

in the alternative to serving the 45-day sentence, to post a bond in the

amount of $25,000. He asserts that the trial court erred in that regard

because, he says, the mother's contempt petition did not indicate that she

was seeking to have the court set a bond. See § 30-3-6, Ala. Code 1975

(allowing a court to issue an order requiring the obligor to post a bond for

the enforcement of support "where request therefor is included in the

petition or other pleading"). We note, however, that the mother

requested at the trial, without objection by the father, that a bond

amount be set for the amount of the father's child-support arrearage.

Thus, the trial court could have concluded that the issue was tried by the

implied consent of the parties. See Rule 15(b), Ala. R. Civ. P. (stating

that, "[w]hen issues not raised by the pleadings are tried by express or

13
2210311 and 2210469

implied consent of the parties, they shall be treated in all respects as if

they had been raised in the pleadings"), and Young v. Corrigan, 253 So.

3d 373, 379 (Ala. Civ. App. 2017) (quoting S.A.M. v. M.H.W., 227 So. 3d

1232, 1233 (Ala. Civ. App. 2017)) ("When an issue is 'raised at trial

without objection, … it [is] tried by the implied consent of the parties.' ").

We also cannot agree with the father that the amount of the bond set by

the trial court was in error. See § 30-3-6 (stating that the amount of the

bond to be required is at the discretion of the court). Accordingly, we

affirm the trial court's contempt order regarding the amount of the bond.

529 College Accounts

The father argues on appeal that the trial court erred in directing

him to transfer ownership of the 529 college accounts to the mother and

in directing that the mother administer the children's educational

accounts. Specifically, he argues that that portion of the trial court's

judgment amounts to an impermissible modification of the property

division awarded in the divorce judgment. See, e.g., LaFontaine v.

LaFontaine, 294 So. 3d 774, 777 (Ala. Civ. App. 2019) ("Alabama law does

14
2210311 and 2210469

not authorize a trial court to modify a property division more than 30

days after the entry of the final judgment effectuating such division.").

In support of his argument, the father cites Berens v. Berens, 260

N.C. App. 467, 818 S.E.2d 155 (2018), in which the Court of Appeals of

North Carolina affirmed, pursuant to an equitable distribution of

property following the parties' divorce, the classification and division of

529 plans, which the parties in that case had funded for their children,

as marital property. The father also cites J.W. v. R.J., 146 Haw. 581,

589-90, 463 P.3d 1238, 1246-47 (Haw. Ct. App. 2020), in which the

Intermediate Court of Appeals of Hawaii considered post-divorce

proceedings related to child support and college expenses for the children

of the parties involved in that case. That court determined that, because

the divorce judgment at issue in that case had directed that the accounts

maintained in the separate name of each party would remain the

separate property of that party, the family court had erred in directing,

in the post-divorce proceeding, that the "529 savings plan accounts" for

the parties' children be applied directly to tuition, fees, and books, when

those accounts had been solely in the former wife's name. Id. Unlike in

15
2210311 and 2210469

J.W., the divorce judgment in the present case directed, pursuant to an

agreement of the parties, that the 529 college accounts be used for no

purpose other than the college educations of the children.

Although the mother has not favored this court with a brief in

response to the father's brief on appeal, she argued at the hearing on the

parties' postjudgment motions that the children's educational accounts

were in the nature of child support. In Ramsey v. Ramsey (No. 25810,

Apr. 18, 2012) (Ohio Ct. App. 2012) (not reported in North Eastern

Reporter), the Ohio Court of Appeals declined to view the transfer of "529

Plan accounts" from the control of one parent to the other parent in post-

divorce proceedings as an impermissible post-divorce modification of the

division of the parties' marital property. That court determined that the

529 accounts at issue in that case had not been addressed by the

domestic-relations court in its division of the parties' property but,

rather, had been addressed as part of the parties' shared parenting plan,

which concerned matters involving the parties' children and was

attached to and incorporated into the divorce judgment. Id. Additionally,

the Ohio Court of Appeals noted that the shared- parenting plan in that

16
2210311 and 2210469

case directed that the owner of the 529 accounts was required to turn

over any balance remaining in the accounts to the child for whose benefit

the account was established upon the child's attainment of age 25 and

the completion of a four-year college degree. Id. The court concluded that

the parties and the domestic-relations court had viewed the accounts as

something other than marital or separate property to be divided and that,

as a result, the domestic-relations court was authorized to modify the

terms of the shared-parenting plan. Id.

Like in Ramsey, it appears that the parties in this case regarded

the 529 college accounts as being in the nature of child support, as argued

by the mother at the hearing on the postjudgment motions. The trial

court also adopted that interpretation when it incorporated the parties'

agreement in the divorce judgment. This court has acknowledged that

"the general principles concerning child support are equally applicable to

a motion for post-minority college support." Griggs v. Griggs, 638 So. 2d

916, 919 (Ala. Civ. App. 1994). Moreover, this court has confirmed that

an agreement entered into by a parent, which obligates that parent to

support or educate a child who has attained the age of majority and which

17
2210311 and 2210469

has been incorporated into a divorce judgment, can be enforced and

modified. Cunningham v. Cunningham, 500 So. 2d 22, 24 (Ala. Civ. App.

1986).

The father asserts, however, that the divorce judgment fails to

provide for the ownership of any funds remaining in the 529 college

accounts after each of the children's college expenses are satisfied.

Although the divorce judgment provides that the remainder of any funds

in the 529 college accounts for Quaid and Clayton would be deposited into

the 529 college account for Reese, it fails to provide for the ownership of

any funds remaining in the 529 college accounts after all three of the

children have graduated college. In Williams v. Williams

(FSTFA114021238S, Mar. 21, 2017) (Conn. Super. Ct. 2017) (not

reported in Atlantic Reporter), the Superior Court of Connecticut

considered certain 529 accounts that Karen Williams and Willis Williams

had established for their children and of which Willis remained the

custodian following their divorce. Pursuant to an agreement

incorporated into the Williamses' divorce judgment, the funds contained

in the 529 accounts could not be used for any purpose other than their

18
2210311 and 2210469

children's educational expenses. Id. Karen later died and the executor

of her estate sought to compel Willis to comply with the parties'

agreement and apply funds from the 529 account for the Williamses'

oldest child toward her educational expenses. Id. The Connecticut

Superior Court determined, among other things, that the 529 accounts

were marital property, that Willis had been named the custodian of the

accounts in the divorce judgment, and that a post-divorce transfer of

ownership to the executor would amount to an impermissible

postjudgment modification of the parties' property distribution. Id. The

Connecticut Superior Court proceeded, however, to acknowledge the

terms of the divorce judgment limiting the use of the funds in the 529

accounts, to direct Willis to apply the funds of the parties' oldest child to

that child's educational expenses in accordance with the divorce

judgment, and to direct that Willis make payments as directed by the

executor within 10 days of the date that the executor notified him of the

expense to be paid. Id.

In the present case, like in Williams, the divorce judgment

incorporated an agreement of the parties limiting the use of the funds in

19
2210311 and 2210469

the children's 529 college accounts. Thus, as discussed previously, the

trial court in this case could enforce and modify that judgment to

effectuate the terms of the parties' agreement. See Cunningham, supra.

This court acknowledges, however, that, because the terms of the parties'

agreement and the divorce judgment are silent as to the ownership of any

funds remaining in the accounts after all three children have graduated

college or otherwise failed to utilize the entirety of those funds, the owner

of the 529 college accounts in the present case could, among other things,

withdraw any remaining funds therein as a nonqualified withdrawal.3

3The Alabama Treasury Department, on a web page designed to
provide information regarding the "CollegeCounts 529 Fund," see § 16-
33C-10(a), (b), Ala. Code 1975, which the web page describes as "a
qualified tuition program under Section 529 of the Internal Revenue
Code," provides that, if a beneficiary of that program does not attend
college or use all of the funds available, the owner of the fund may
withdraw the funds as a nonqualified withdrawal, subject to federal and
state income taxes and a 10% federal penalty tax; leave the funds in the
account in the event the beneficiary or another member of the owner's
family goes back to school at a later date; or change the beneficiary to
another member of the family for their college expenses. See Cooper v.
MTA, Inc., 166 So. 3d 106, 108 n.3 (Ala. 2014) (stating that, pursuant to
Rule 201(b)(2), Ala. R. Evid., an appellate court "may take judicial notice
of facts 'capable of accurate and ready determination by resort to sources
whose accuracy cannot be reasonably questioned' "). On the date this
opinion was released, the web page could be found at
collegecounts529.com/faqs/.
20
2210311 and 2210469

See § 40-18-15(a)(28), Ala. Code 1975. It appearing that the owner of the

accounts would have the authority to make a determination regarding

the balance of any remaining funds, we conclude that the owner of the

accounts retains a property interest in that remainder.

Because the trial court was within its discretion to limit the use of

the 529 college accounts to the education of the parties' children and may

modify and enforce that agreement in accordance with the terms of the

divorce judgment to effectuate the purpose of the parties' agreement, the

trial court did not err in directing that the mother be permitted to

administer the 529 college accounts to ensure the father's compliance

with the divorce judgment. Like in Williams, however, we hold that, in

this case, the trial court's purported transfer of the ownership of the 529

college accounts from the father to the mother amounts to an

impermissible modification of the property division contained in the

divorce judgment.4 We therefore reverse the trial court's judgment with

4The father is correct that, although the divorce judgment does not
specifically award either party ownership of the 529 accounts, he
remained the owner of the accounts because he was the owner of the
accounts at the time the judgment was entered. See Ex parte Davis, 495
21
2210311 and 2210469

regard to the transfer of the ownership of those accounts and remand the

case for the entry of a judgment consistent with this opinion.

Attorney's Fees

The father argues that the trial court erred in awarding attorney's

fees to the mother. He cites § 12-21-137, Ala. Code 1975, which speaks

to the right of every party to cross-examine witnesses called against him

or her, in support of his assertion that his due-process rights were

violated by the trial court's refusal to allow him to cross-examine the

mother's attorneys. We note, however, that it does not appear from the

record on appeal that the father was denied that opportunity. The

mother's attorneys were sworn in and presented statements to the trial

court regarding their qualifications, their representation of the mother

in the present actions, and their hourly rates. Following those

statements, the mother rested her case, and the father was directed to

So. 2d 672, 673 (Ala. 1986) (holding that "when a trial court does not
make specific disposition of an asset in a divorce decree, the parties are
left in the same position relative to that asset as they were in before the
divorce"). Additionally, the divorce judgment requires the father to
provide statements of the 529 college accounts to the mother, apparently
in acknowledgment of the father's ownership of the accounts.
22
2210311 and 2210469

call his first witness. The father called himself as a witness and sought

to make a statement in "response to the fees." The trial court instructed

the father that, if it were to award attorney's fees, he could then file an

objection and the trial court would set the objection for a hearing and

entertain the father's arguments against the award of attorney's fees.

The father did not request to cross-examine the mother's attorneys at the

trial before the mother rested her case or request that he be permitted to

present evidence regarding the attorney's fees at the hearing on the

parties' postjudgment motions. Accordingly, we cannot conclude that the

father's right to cross-examine witnesses was violated.

The father also argues that insufficient evidence was presented

regarding the nature of the attorney's fees that were awarded. He asserts

that it is impossible to discern how many hours claimed by the mother's

attorneys had been devoted to the mother's criminal-contempt claims,

which, he argues, cannot support an award of attorney's fees, and how

many hours had been devoted to the remaining issues. The trial court

did not specify whether it awarded attorney's fees with regard to the

contempt claims or the modification claims. The father has failed to

23
2210311 and 2210469

argue on appeal that the trial court erred in awarding attorney's fees with

regard to the modification claims; thus, any such argument is waived.

See Gary v. Crouch, 923 So. 2d 1130, 1136 (Ala. Civ. App. 2005).

Although the father is correct that "a trial court may not award an

attorney fee based on a finding of criminal contempt," Kizale, 254 So. 3d

at 240 n.7., this court has also affirmed that "[a]n award of attorney fees

in a case containing both a civil and a criminal contempt finding is not in

error." Id. Having affirmed the trial court's findings of civil and criminal

contempt, we cannot conclude that the trial court erred in awarding

attorney's fees related thereto in the present case.

Appeal Number 2210469

Child Support

The father argues that the trial court erred when it reduced his

child-support obligation from $3,500 per month for the parties' three

children to $1,000 per month for only the parties' youngest child, Reese.

The modification of child support rests within the sound discretion of the

trial court and the trial court's judgment on that issue "will not be

reversed absent a showing of an abuse of discretion or a showing that the

24
2210311 and 2210469

judgment is plainly and palpably wrong." Douglass v. Douglass, 669 So.

2d 928, 930 (Ala. Civ. App. 1995). The father cites, among other cases,

Dyas v. Dyas, 683 So. 2d 971, 973 (Ala. Civ. App. 1995), for the

proposition that, when, as in the present case,

"the combined adjusted gross income exceeds the uppermost
limit of the child support schedule, the amount of child
support awarded must rationally relate to the reasonable and
necessary needs of the child, taking into account the lifestyle
to which the child was accustomed and the standard of living
the child enjoyed before the divorce."

The father asserts that the trial court did not receive sufficient

evidence to determine that the youngest child needed $1,000 per month

in financial support to maintain that child's standard of living before the

divorce. As noted, the original child support award of $3,500 per month

was for all three of parties' children. At the time of the trial, the two

older children had reached the age of majority, justifying the reduction

in the father's monthly child-support obligation. The trial court heard

evidence from which it could have determined that the youngest child

had financial needs similar to those she had at the time of the entry of

the 2017 divorce judgment. As the father points out in his brief, at the

time of the trial, most of the youngest child's educational costs were being
25
2210311 and 2210469

covered by the parties' agreement to set aside funds for that purpose, the

youngest child's health insurance was being provided by the father, and

the youngest child was living rent-free in the former marital home, which

was unencumbered by a mortgage; however, the child still requires food

and clothing and incurs other living expenses. From the testimony of the

father indicating that he had provided the youngest child with a

computer, a cellular telephone, dresses, and other accessories, the trial

court could have determined that the youngest child had enjoyed an

elevated standard of living that required at least $1,000 per month,

which amount, we note, actually falls below the proportionate share of

child support for the two older children. Because we do not agree that

the trial court abused its discretion in declining to further reduce the

amount of the father's monthly child-support obligation, its calculation

thereof is affirmed.

The father next argues that the trial court erred by refusing to

allow him to present evidence regarding any credits or set-offs against

his child-support arrearage to which he may have been entitled. We note

that the father testified, without objection, that he was requesting credit

26
2210311 and 2210469

for certain purchases that he had made for the children and for benefits

that they had received as a result of his military service. The father, who

is an attorney and represented himself along with his co-counsel,

questioned the mother and sought, albeit unsuccessfully, to elicit

testimony from her regarding certain expenditures that the father had

made on behalf of the children.

Upon the father's third attempt to elicit testimony from the mother

regarding his purchase of clothing for the children, the trial court

inquired as to the line of questioning. The father responded that he was

seeking a credit for certain purchases that he had made for the children,

and, in response, the trial court indicated that caselaw did not allow for

"an offset for buying extra things for your children." See Caswell v.

Caswell, 101 So. 3d 769, 775-76 (Ala. Civ. App. 2012) ("A noncustodial

parent may not receive credit against his or her child-support obligation

by providing the child with gifts, luxuries, or other nonessential 'extras'

that do not directly go to the basic support of the child."). The father then

requested that the trial court allow him to "brief that issue before making

its final decision," and the trial court welcomed the father to do so and

27
2210311 and 2210469

allowed the father to proceed. (R2. 367-69). There is no indication that

the trial court prevented the father from presenting additional evidence

thereafter regarding amounts for which he sought a credit, and the father

failed to file a brief with regard to the issue before the entry of the trial

court's judgments in both actions. Because the father was permitted to

present evidence related to his request for credits for expenditures that

he had made on behalf of the parties' children and there is no indication

that the trial court prevented the father from presenting additional

evidence on that matter, the father's argument on this issue does not

merit reversal.

The father next challenges as error the trial court's refusal to

retroactively reduce his child-support obligation to the date his

modification petition was filed. The trial court denied the father's

request for a retroactive reduction based on the father's having come into

court with unclean hands. See, e.g., Burkett v. Gresham, 888 So. 2d 505,

509 (Ala. Civ. App. 2004) ("The clean-hands doctrine may be applied in

actions involving the modification of child support."). To the extent the

father argues that the mother failed to properly assert the clean-hands

28
2210311 and 2210469

doctrine, we note that, in her response to the father's counterclaim to

modify child support in the .01 action, the mother asserted that the father

had "unclean hands" related to his failure to make child-support

payments; she again asserted that the father had "unclean hands" at the

trial, without objection from the father. See Rule 15(b), supra.

In Burkett, supra, this court stated, in pertinent part:

" 'The purpose of the clean hands doctrine is to prevent
a party from asserting his, her, or its rights under the law
when the party's own wrongful conduct renders the assertion
of such legal rights "contrary to equity and good conscience." '
J & M Bail Bonding Co. v. Hayes, 748 So. 2d 198, 199 (Ala.
1999) (quoting Draughon v. General Fin. Credit Corp., 362 So.
2d 880, 884 (Ala. 1978)). It is well settled that the decision
whether to apply the clean-hands doctrine is within the sound
discretion of the trial court. Borcicky v. Borcicky, 763 So. 2d
265 (Ala. Civ. App. 2000); Grant v. Smith, 661 So. 2d 752 (Ala.
Civ. App. 1994)."

888 So. 2d at 509. This court has also confirmed that "[w]hether to make

a parent's child-support obligation retroactive to the date the petition to

modify was filed is a decision committed to the sound discretion of the

trial court." Walker v. Lanier, 221 So. 3d 470, 472 (Ala. Civ. App. 2016).

As discussed above, the trial court was presented with evidence

from which it could have determined that the father had willfully failed

29
2210311 and 2210469

to pay his child-support obligation as ordered. Having already concluded

that the trial court did not err in finding the father in contempt for his

failure to make child-support payments as ordered, we do not agree with

the father that the trial court's application of the doctrine of clean hands

in declining to retroactively reduce his child-support obligation amounts

to an abuse of discretion. Additionally, to the extent the father asserts

that the reduction in child support should have been made retroactive

based on the mother's having filed two requests for continuances, we note

that the trial court could have also considered the father's request for a

continuance only three days before a scheduled trial date, his failure to

obtain counsel until shortly before that time despite having been aware

of the contempt claims for over a year, and evidence presented at the trial

indicating that the father had employed tactics to make the litigation

difficult and to increase the mother's attorney's fees. Because the trial

court could have concluded that it was the father's actions that had

resulted in any delay in its adjudication of his request for a reduction in

his monthly child-support obligation, we cannot agree that the trial court

abused its discretion in declining to retroactively reduce that amount.

30
2210311 and 2210469

The father last argues that the trial court erred in ignoring certain

payments he had purportedly made to the mother for which he says he

should have received credit in the calculation of his child-support

arrearage. He admits, however, that the mother had not negotiated

certain checks that he had purportedly provided to her, and the mother

testified that, when she had attempted to cash a check from the father in

the amount of $50,000, the funds had been unavailable. The father fails

to present any authority in support of his apparent assertion that he is

entitled to a credit for amounts that were never received by the mother.

See Rule 28(a)(10), Ala. R. App. P. Accordingly, this argument does not

merit reversal and the trial court's calculation of the father's child-

support arrearage is affirmed.

Conclusion

In appeal number 2210311, we reverse the trial court's judgment

insofar as it transferred ownership of the 529 college accounts to the

mother and we remand the case for the entry of a judgment in

conformance with this court's opinion. In all other respects, we affirm

31
2210311 and 2210469

the trial court's judgment in appeal number 2210311. In appeal number

2210469, we affirm the trial court's judgment.

2210311 -- AFFIRMED IN PART; REVERSED IN PART; AND

REMANDED.

2210469 -- AFFIRMED.

Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

32