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					                                       LAW NOTES
                           806 So. 2d 336 through 813 So.2d 795
                                      Volumes 12-21
                                     Judge Gary Pate



1.   CUSTODY – NATURAL PARENT VS. THIRD PARTY
     Ex Parte S.T.S., 806 So.2d 336 (Ala. 2001).

     A parent has a prima facie right to the custody of his or her child as against the right of
     custody in a non-parent. Absent a showing of voluntary forfeiture, the presumption can
     be overcome only by a finding that the parent is guilty of misconduct or neglect to a
     degree which renders that parent an unfit or improper person to have custody. That
     presumption does not apply if the parent has voluntarily relinquished custody or if a prior
     judgment removed custody. REVERSED.

2.   CUSTODY – NATURAL PARENT VS. THIRD PARTY
     C.P. v. W.M., 806 So. 2d 395 (Ala. Civ. App. 2001).

     Mother appealed trial court’s grant of custody to paternal grandparents.

     The Mother contends the court erred in admitting testimony of incidents which occurred
     prior to the Court’s previous Order. That 1998 Order stemmed from an agreement, not
     trial. Generally, in custody modification actions, one is limited to presenting evidence
     which relates back to the last custody judgment. However, an exception exits when the
     earlier judgment was based upon the parties’ agreement and the facts offered were not
     disclosed in the earlier proceeding. There was no error in allowing the evidence.
     In order for a non-parent to overcome a natural parent’s right to custody, there must be a
     showing of voluntary forfeiture of that right or a finding of misconduct or neglect to a
     degree which renders that parent an unfit and improper person to be entrusted with the
     care of the child. Further, under Ex parte Terry, 494 So.2d 628 (Ala.1986), the finding of
     unfitness must be made expressly. No such finding was made. REVERSED.


3.   COLLEGE EDUCATION
     Payne v. Payne, 806 So.2d 398 (Ala. Civ. App. 2001).

     Father appealed trial court Order directing him to pay 70% of son’s college education
     expenses. The father earns $4,291.00 per month and the mother earns $1,387.00. The son
     is a senior in high school, making good grades. He had not yet applied to a specific
     college. The trial court’s order set the parties obligation for tuition, fees, room, board and
     books at an in-state, state supported institution. The Court of Appeals affirmed with the
     observation that “the evidence supports the trial court’s determination. [see Judge
     Crawley’s dissent, noting there was no evidence of what school the son plans to attend,




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     tuition rates, or related anticipated educational expenses.] [ see Gordon v. Gordon, 804
     So.2d 241 (Ala. Civ. App. 2001.]


4.   ATTORNEY’S FEE
     Mahaffey v. Mahaffey, 806 So.2d 1286 (Ala. Civ. App. 2001).

     Among other things, Wife appealed adequacy of $25,000.00 attorney’s fee award.

     Both parties claimed the other side was responsible for the disputes and protracted
     litigation. The trial court which presided over the six-day trial was in the best position to
     evaluate these matters. The parties had stipulated that if the trial court awarded a fee, the
     fee could be based upon the testimony of the wife’s attorney and the Court’s own
     knowledge of reasonable Legal fees.
              In setting fees, the court should consider:
                       (1.)    the nature and value of the subject matter of employment;
                       (2.)    the learning, skill, and labor necessary to the proper discharge of
                               that employment;
                       (3.)    the time consumed on the matter;
                       (4.)    the professional ability, experience, and reputation of the attorney
                               performing the services;
                       (5.)    the weight of the responsibility;
                       (6.)    the measure of success achieved;
                       (7.)    any reasonable expenses incurred; and,
                       (8.)    the fee customarily charged in the locality for similar services.

     The trial court may also rely on opinion evidence and on its own knowledge and
     experience as to the value of the services performed. Likewise, the earning capacity and
     the financial circumstances of the parties may be considered. AFFIRMED.

5.   CUSTODY – MODIFICATION
     Fricks v. Wood, 807 So.2d 561 (Ala.Civ.App. 2001).

     Parties Divorced in 1998, sharing custody of the 3 year old son. Primary custody was in
     the Mother. The Father filed this action and the Mother appealed the trial court’s grant of
     primary physical custody to the father.

     The mother had denied the father visitation on numerous occasions. She had blocked the
     father from picking up the child from school, had purposely omitted the fathers name
     from the child’s school forms. The stepfather was a heavy drinker and smoker and
     contemplated moving the family to Germany. Further, the trial court noted the stable
     environment in the father’s home and found that a substantial portion of the mother’s
     testimony lacked credibility. AFFIRMED.




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6.   DEATH OF PARTY
     Ex Parte Parish, 808 So.2d 30 (Ala. 2001).

     Husband filed divorce action, together with settlement agreement. Trial court entered
     judgment, incorporating parties agreement. The judgment stated it would be final 30 days
     after the complaint had been filed. Seven days later, the Husband committed suicide. The
     Wife sought to have the divorce judgment set aside. The trial court granted that motion.
     However, on motion by husband’s estate, the Court re-instated the judgment. The Wife
     appealed and the Court of Civil Appeals REVERSED. Cert. was granted.

     Pursuant to § 30-2-8.1, Ala. Code., the judgment was not final and could not become
     final until the expiration of 30 days from the date of filing the action. Common Law
     provides that a divorce action in which no final judgment has been entered is abated by
     the death of a party. See, Jones v. Jones, 517 So.2d 606 (Ala. 1987). A marriage is
     dissolved by the death of a party to the marriage and a pending action for dissolution by
     divorce is necessarily terminated and absolutely abated. Court of Appeals AFFIRMED.

7.   PERIODIC ALIMONY
     Pettit v. Pettit, 808 So.2d 42 (Ala. Civ. App. 2001).

     Parties were married for 16 years, having no children. The Husband was 71 years old,
     with health problems. He received $1,726.00 per month in retirement and Social Security
     benefits. The Wife was 64 years old, with health problems. She received $472.00 per
     month in Social Security benefits. The trial court awarded the Wife certain property
     interests plus $200.00 per month for 6 months. The Wife appealed.

     Considering the length of the marriage, the age and health of the Wife, and her limited
     financial resources, it was error for the trial court to not either award periodic alimony or
     at least reserve the issue for future consideration. REVERSED.

8.   DOMESTIC VIOLENCE/ABUSE
     Ex Parte Fann, 810 So.2d 631 (Ala. 2001).

     Wife sought divorce, alleging abuse by husband. Trial court awarded custody toHusband,
     making no specific findings concerning wife’s abuse allegations. Wife appealed and
     Court of Appeals AFFIRMED; cert. was granted.

     Wife states that Court of Appeals affirmance conflicts with Fesmire v. Fesmire, 738 So.
     2d 1284 (Ala. Civ. App. 1999), in trial court’s failure to address abuse issue. Fesmire
     requires a trial court in a child custody case to make specific findings relating to the
     abuse claim.

     The Family Abuse Act (§ 30-3-130 et seq.) contains no provision requiring such findings.
     Fesmire creates the requirement to assist the Appellate Court’s review process. While
     that is a legitimate concern, it does not justify the judicial creation of an unsanctioned




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      requirement. Further, the Fesmire rule has provoked wholesale reversals of child custody
      decisions.

      It is well settled that where a trial court does not make specific findings of fact
      concerning an issue, it is assumed that the trial court made those findings necessary to
      support its judgment, unless such findings are clearly erroneous.

      To the extent that Fesmire and cases following it require a trial court, once an allegation
      of abuse has been made, to make a finding on the record as to whether “domestic abuse”
      has in fact occurred, they are in error and are overruled. AFFIRMED.


9.    INCOME       WITHHOLDING           ORDER       –    POST-MINORITY-PAYMENT
      SUSPENSION
      W.L.S. v. K.S.S.V., 810 So.2d 777 (Ala. Civ. App. 2001).

      Parties divorced and shortly thereafter, the father was convicted of raping the parties’
      daughter. He served over ten years in prison, paying no child support. Upon release, he
      paid child support until the daughter reached majority. The mother then sought collection
      of the support arrearage through an I.W.O. The trial court issued the Order and the father
      appealed.

      Because the statute provides that an Income Withholding Order can be used only for the
      support of a minor child and because the parties’ child was not a minor when this
      collection effort was filed, the trial court erred in issuing the I.W.O.

      The father could have petitioned for a suspension of his support obligation while
      incarcerated but failed to do so. Child support payments become final judgments on the
      day they are due. He is obligated for the accrued sums. REVERSED IN PART.

10.   ATTORNEY’S FEES-ASSIGNMENT OF CHILD SUPPORT
      Miller v. Miller, 810 So.2d 799 (Ala. Civ. App. 2001).

      Attorney represented mother in child custody and support matter. Mother assigned
      attorney all monies due from the ex-husband, including child support. Attorney filed
      garnishment against ex-husband, which trial court refused to enforce. Attorney appealed.

      Purported assignment of child support for payment of attorney’s fees was null and void.
      The right of a child to receive support cannot be waived. AFFIRMED.

11.   DIVISION OF MILITARY RETIREMENT
      Ex Parte Smallwood, 811 So.2d 537 (Ala. 2001).

      Divorce agreement provided wife would receive all the husband’s military retirement
      pay. The husband sought to set that aside, arguing that provision violated the Uniformed
      Services Former Spouses’ Protection Act which contains a 50% limitation on division.



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      The trial court denied his motion. He appealed and the Court of Civil Appeals
      REVERSED. Cert. was granted.

      F.S.P.A. provisions do not prohibit an award of greater than 50% of the military retiree’s
      retirement pay. Rather, the limitation relates only to the “payment mechanism” under
      which the Federal Government makes direct payments to a former spouse. REVERSED.
      [ Note Billeck v. Billeck, 777 So.2d 105 (Ala. 2000), referencing the 50% limitation on a
      veteran’s disability benefits.]

12.   VISITATION – MODIFICATION
      Moody v. Nagle, 811 So.2d 546 (Ala. Civ. App. 2001).

      Mother filed contempt petition for father’s failure to pay child support. Father countered
      with a petition seeking sole custody, the parties sharing custody under their divorce
      decree. Among other things, the trial court denied the custody request and modified the
      father’s visitation schedule. Having previously had the children half the time, the father
      was given “ reasonable visitation”, a fixed-standard schedule to be followed if the parties
      disagreed. The father appealed.

      While the issue of visitation was not pled, the father implicitly involved the court’s power
      to determine the related issue of visitation when he raised the custody issue. Even though
      the children’s Guardian Ad Litem recommended “Liberal Visitation,” such suggestion is
      not binding on the court. The court’s Order allows for whatever visitation the parties can
      arrange; there was no error in providing a “back-up” in the event the parties disagree.
      AFFIRMED.

13.   CHILD SUPPORT GUIDELINES – ATTORNEY’S FEES
      Dorgan v. Dorgan, 811 So.2d 552 (Ala. Civ. App. 2001).

      Father appealed trial court’s denial of his petition to reduce child support and the award
      of attorney’s fees to the mother.

      Rule 32 A.R.JA, requires the filing of the appropriate forms in child support cases. This
      record contained only a CS-42 prepared by the mother. This matter was REVERSED and
      REMANDED with the trial court directed “to get into the record all required child
      support forms, properly completed.” Curiously, the Court of Appeals wrote: We cannot
      say that the trial court erred in awarding the mother an attorney fee ($1,000.00); however
      if the court reduces the father’s child support obligation, it should reconsider the mother’s
      attorney fee.

14.   CUSTODY-MODIFICATION-COLLEGE
      Williams v. Williams, 812 So.2d 352 (Ala. Civ. App. 2001).

      Husband received custody in 1994 divorce. The Wife’s 1997 petition for custody was
      settled with the Husband retaining custody. This second petition by wife was granted, and
      the husband appealed the trial court’s award of custody to wife.



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      A trial court is generally limited to considering evidence regarding events which occurred
      since the last custody determination. Though evidence was presented in the prior case,
      the parties settled that action. There was evidence that the Husband had abused the
      children since the last custody modification proceeding. A finding that such abuse has
      occurred constitutes a finding of change of circumstances. See, § 30-3-134 Ala. Code.

      The trial court Ordered Husband to pay $500.00 per month “post-minority support”
      continuing until the son completes a four year degree program or “until he earlier
      completes an undergraduate degree.” This provision could arguably require the Husband
      to pay support, even if it takes the son longer than four years. The decree should have
      required support “continue for four years or until” the son earlier completes college.
      AFFIRMED as to custody. REVERSED as to college.

15.   PERSONAL JURISDICTION-MINIMUM CONTACTS-SUBJECT                                    MATTER
      JURISDICTION
      Beale v. Haire, 812 So.2d 356 (Ala. Civ. App. 2001).

      Parties divorced in Maine in 1995. Mother and children later moved to Alabama. The
      father remained a resident of Maine. The trial court dismissed this action by the mother,
      finding an absence of personal and subject matter jurisdiction. The mother appealed.

      The mother argues that the father had sufficient “minimum contacts” with Alabama as he
      had visited the children in Alabama and had undergone a family psychological
      assessment in Alabama. That visit however, was not voluntary on the father’s part; it was
      mandated by a post judgment order in Maine. The father’s only contacts here have been
      an unknown number of visitations and one court–ordered appearance. He was not
      responsible for, and did not consent to, his children’s move to this state. It is neither fair
      nor reasonable to require him to defend a child support action here.

      Likewise, Alabama lacked subject matter jurisdiction. Under UIFSA (§ 30-3a-101 et
      seq.), as long as Maine retains continuing, exclusive jurisdiction over its support order,
      Alabama is barred from modifying that Order. Exclusive jurisdiction remains intact in
      Maine as long as one party continues to reside there. AFFIRMED.

16.   GRANDPARENT VISITATION
      R.S.C. v. J.B.C., 812 So.2d 361 (Ala. Civ. App. 2001).

      Paternal grandfather sought visitation with grandchildren, claiming the married parents
      had terminated his contacts. The parents stated they had not interfered with the
      grandfather’s visitation but objected to the children’s contacts with the step-grandmother.
      The trial court granted the grandfather’s petition and the parents appealed.

      The state’s interest in enabling grandparent-grandchild relationships is not a “compelling
      state interest” sufficient to override the parents’ fundamental “Liberty” interest. Among
      those interests lying at the core of parents’ rights to raise and care for their own children



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      is the right to control their children’s companions and associations. A parent’s right to
      make decisions regarding visitation of his or her own child with a non-parent is a
      fundamental liberty entitled to strict scrutiny under the Fourteenth Amendment. To
      discard the parent’s decision as to what is in a child’s best interests merely because that
      decision is not the same as the one the state would make denies the fundamental nature of
      the parent’s right to make that decision in the first place. REVERSED- holding that §30-
      3-4.1 Ala. Code, is unconstitutional as applied.

17.   CHILD SUPPORT GUIDELINES
      Cannon v. Cannon, 812 So.2d 373 (Ala. Civ. App. 2001).

      Trial court erred in dismissing divorce action for failure of parties to submit a CS-43
      compliance form. Although Rule 32 A.R.J.A. requires the filing of the CS-41 and CS-42
      forms, it does not require the filing of a CS-43 form. REVERSED.

18.   CHILD SUPPORT GUIDELINES
      Whitaker v. Whitaker, 812 So.2d 376 (Ala. Civ. App. 2001).

      Trial Court’s award of $345.00 monthly child support was REVERSED and remanded
      for trial court to obtain a CS-41 from the husband and for court to complete a CS-42. The
      completion and filing of these forms are mandatory.

19.   SERVICE OF PROCESS
      Bigam v. Bigam, 812 So.2d 1216 (Ala. Civ. App. 2001).

      Husband sued wife for divorce, serving her by mailing the complaint to the wife’s New
      Jersey attorney. The Husband moved for a default which was entered. The trial court
      denied the wife’s motion to set aside the default. The wife appealed.

      There was no evidence that the New Jersey attorney was the wife’s agent authorized to
      receive service of process. There was neither an acceptance nor waiver of service of
      process by wife or the lawyer. REVERSED.

20.   UNDEREMPLOYMENT-MODIFICATION-COLLEGE EXPENSES
      Arnett v. Arnett, 812 So.2d 1246 (Ala. Civ. App. 2001).

      Husband sought modification of 1997 divorce decree, obligating him to pay alimony,
      child support, and certain college expenses. Trial court denied his request and he
      appealed.

      The husband’s claim for reduction of his payments rested on a $600.00 per month
      reduction in earnings due to his termination from part-time employment. The trial court
      found the Husband was voluntarily underemployed and that his termination was due to
      misconduct. The Husband states that the Wife caused him to be fired when she reported
      certain things to the husband’s supervisor. Regardless of why the wife revealed the
      information, it was within the trial court’s discretion to view the termination as resulting



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      from the husband’s misconduct… thus finding the husband to be voluntarily
      underemployed.

      As to arrearage calculation for certain college expenses, the prior order required the
      Husband to pay “one-half of any college expenses incurred by the son.” Over $4,000.00
      of the ascertained arrearage was based on room and board costs calculated by the mother
      on what would have been paid to Auburn had the son not lived at home. Clearly, that sum
      was not a “college expense incurred by the parties’ son.” REVERSED as to the arrearage.

21.   BANKRUPTCY –CHILD SUPPORT GUIDELINES
      Devine v. Devine, 812 So.2d 1278 (Ala. Civ. App. 2001).

      Post-trial, Husband claimed error in trial court’s order dividing property – parties having
      initiated pending Bankruptcy case. The Husband appealed the lower court’s denial of his
      motion.

      Though the wife claims the husband waived this issue by failing to plead their bankruptcy
      as an affirmative defense, Rule 8(c) A.R.C.P. speaks to a discharge in bankruptcy. Here,
      the matter was still pending which results in a stay of divorce proceedings as it relates to
      the division of property within the debtor’s estate. Further, the bankruptcy court did not
      enter an order lifting the automatic stay. REVERSED.

      [ Amazingly, Court of Appeals notes the failure of the trial court to obtain a CS-41 from
      the Husband and does not reverse on that grounds, stating it “is able to determine how the
      trial court reached its child support award.’]

22.   COLLEGE EDUCATION
      Spencer v. Spencer, 812 So.2d 1284 (Ala. Civ. App. 2001).

      Where son’s actual annual Community College expense was $3,006.00, it was error to
      order father to pay $300.00 per month ($3,600.00 per year) REVERSED.




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