CIVIL PROCEDURE: Final Hearing

The parties were divorced in 2009. The father was awarded custody of the parties’ minor child and the mother was awarded visitation.

On January 10, 2012, the mother filed a complaint seeking a modification of custody. The trial court scheduled the matter for hearing on February 2, 2012. After the hearing date was set, the mother requested that the trial court consider her request for pendente lite custody of the child at the February 2, 2012, hearing.

The father filed a response in opposition to the mother’s custody request. The trial court received evidence at the February 2, 2012, hearing. On March 5, 2012, the trial court entered a “final modification judgment” ordering that the parties share joint legal and joint physical custody of the child. The father filed a motion seeking to clarify whether that order was a final judgment or a pendente lite order.

The court responded by entering an order stating that the matter had been adjudicated on the merits and that the March 2012 order was a final order.

The father appealed. Reversed.

The father contended that his due process rights were violated by the entry of the order after the case was set for pendente lite hearing. In this case, the parties had notice of the claims that the other asserted. However, the trial court scheduled the hearing to occur less than one month after the petition for modification was filed. The order gave no indication that the hearing would be a final one on the merits. This case does not involve a violation of due process rights. “However, there was no indication in the record that the trial court intended to consider the parties’ claims seeking a final custody determination at the February 2, 2012.

While the parties’ divorce action was pending, the trial court issued a pendente lite order in November 2001 requiring the former husband to “maintain the status quo as relates to the maintenance and payment of all major family bills such as the house payment, automobile and house insurance and reasonable and customary expenses that have in the past been incurred by [the] family.”

A final judgment of divorce was entered in October 2003. In May 2010, the former wife filed a complaint seeking modification of child support and a finding of contempt against the former husband based upon his allegedly having failed to comply with the November 2001 pendente lite order.

In November 2010, the court entered an order holding the former husband in contempt and directed the former husband to indemnify the former wife as to a $12,927.41 judgment entered against her following an automobile collision as to which she had been found at fault. The automobile accident occurred in 2002 or 2003 but a judgment was not rendered against the former wife until April 2010.

At trial, the former husband testified that he did not have automobile insurance covering the former wife at the time of the accident. He posited that the insurance agency had canceled the coverage and that he had informed the former wife. The former husband tried to obtain coverage for the former wife but was unable to do so.

The former husband appealed the court’s finding of contempt. Reversed.

The parties were married in 1991. They separated in 2008. At the trial of this action, the parties agreed that the joint- custody arrangement that they had agreed to was working.

The wife and the husband testified that the husband had engaged in several adulterous affairs. The wife was working as an office manager earning $2,000 per month. The husband is an attorney and his income fluctuated.

In 2007 he earned $42,541; in 2008 he earned $109,665, and in 2009, he earned $255,828. The parties had several parcels of real property. The wife had a retirement account that contained approximately $217,000; the husband’s retirement account was worth $410,000. The wife had worked for the husband and his law firm for approximately 11 years without receiving any income.

The trial court entered an order awarding the parties the joint legal and physical custody of their minor child. The husband was ordered to pay $600 per month in child support and 70 percent of certain expenses related to the child.

The court divided the parties’ real property and it awarded the wife $2,000 per month as periodic alimony. The wife was awarded her retirement account and $85,000 from the husband’s retirement funds. The husband was ordered to pay $10,000 “toward” the wife’s attorney fees.

The husband filed a post-judgment motion after which the court reduced the father’s child support obligation to $500 per month and his periodic alimony obligation to $1,250 per month. The husband appealed.

Affirmed in part; reversed in part.

The parties were divorced in 2008, and had two children.  The divorce judgment incorporated an agreement of the parties wherein the parties agreed to “shared custody” of the children. The father agreed to pay child support in the amount of $930.66 until the children reach the age of 19, marry, or become self-supporting.

In October 2010, the mother married a man who resided in Georgia. She notified the father of her intent to relocate after Meagan graduated high school in 2011. The mother filed a motion for a temporary order permitting her to relocate. Before a hearing was held on that motion, the parties reached an agreement styled “Memo Agreement Pendente Lite.” The memo agreement provided that the mother could relocate, she would pay the guardian ad litem fees, and that the parties would amend other provisions of the divorce judgment regarding the custody of Madison. No agreement was reached regarding the father’s child support obligation.

A trial was held after which the court entered a judgment stating that the parties had reached an agreement (“the partial consent agreement”) as to all issues except the father’s child support obligation. The court ordered the father to pay $712.70 in child support for Madison. The father was required to pay $250 per month to Meagan for post-minority support.

The father appealed. Affirmed in part; reversed in part.

Court of Civil Appeals reverses increase in father’s child support obligation; mother failed to prove a material change in circumstances since entry of original decree.

The parties were divorced in 2008. The divorce judgment incorporated an agreement of the parties pursuant to which the parties were awarded joint legal custody of their three children and the mother was awarded sole physical custody. The father was awarded visitation every other weekend, two weeknights each week, and additional holiday and summer visitation.

The father was ordered to pay $450 a month in child support, which represented a deviation from the child support guidelines because the father agreed to provide for the daily needs of the children while they were in his care. The mother and the father were each ordered to pay one-half the cost of “school- sponsored” programs for the children that were conducted outside of regular school attendance.

In 2010, the mother filed a petition for contempt and a petition to modify the father’s child support obligation. The mother alleged that the father had not exercised the extended visitation that was the ground for deviating from the child support guidelines and that he had failed to reimburse her for certain expenses. At trial, the mother claimed that the father owed her one- half of $6,004.90 for expenses that she incurred on behalf of the children. Included in that spreadsheet were unreimbursed medical expenses.

The divorce judgment did not make a provision regarding medical expenses. The father had paid the cost of medical insurance but was not required to do so in the decree. Those health care expenses were, however, attributed to the father in the CS-42 child support form that was filed at the time of the divorce.

The parties stipulated that after the modification hearing, the mother would be responsible for providing health insurance for the children. The court entered an order requiring the father to pay $2,714.75 in expenses for the children. It ordered the father to pay $718 per month in child support.

The father appealed. Affirmed in part; reversed in part. (1) The father argued that there had not been a material change in circumstances since the entry of the divorce decree. Because there had been a deviation at the time of the original divorce, modification of the father’s obligation was proper if there “has been a change in the circumstances that resulted in the [initial] rebuttal of the guidelines.” In this case, there was not a rebuttable presumption that the father’s child support obligation was due to be modified. However, that obligation could still be modified if there was proof of a material change of circumstances that is substantial and continuing.

In this case, the mother was going to incur the cost of the health insurance but it only cost $25 per month. “Our review of the record fails to lead us to any other evidence that might support a finding that there has been a material change in the needs, conditions, or circumstances of the children.” The trial court erred by increasing the father’s child support obligation.

In 2004, Delores Smith fractured her right ankle while in the line and scope of her employment. Surgery was performed and three screws and a plate were placed into her ankle. Following her surgery, Smith returned to her employment with Gold Kist, Inc. She continued to experience pain in her ankle. She continued to seek medical treatment. Smith told her treating physician, Dr. Edward Fisher, that she had trouble walking. Dr. Fisher suggested a second surgery to remove the hardware in order to alleviate Fisher’s pain.

That surgery was performed in February 2006. On March 16, 2006, Dr. Fisher released Smith to return to work without restrictions. In April 2006, Smith requested a panel of four physicians pursuant to Ala. Code 1975, § 25-5-77(a). Carolyn Simms, Smith’s workers’ compensation case manager, claimed that Smith was provided a panel but stated that she would prefer to remain under Dr. Fisher’s care. Smith asserted that she tried to contact one of the physicians who were listed on the panel of four but that she was unable to obtain an appointment.

Dr. Fisher placed Smith at maxi- mum medical improvement on May 30, 2006. On October 12, 2006, Smith informed Dr. Fisher that she was having trouble with her back and that she was complaining about her ankle. Her primary physician referred her to Dr. David Longmire, a physician concentrating in pain management. Dr. Longmire examined Smith on two occasions. The Dr. determined that she suffered from allodynia, which is the sensitivity to light touch. Dr. Longmire testified that he could not determine whether Smith’s abnormality was the result of problems with her back or her right ankle or a combination of problems with her back and her ankle.

Smith testified that she did not return to see Dr. Longmire because of financial considerations. She began using a cane. Her pain interfered with her ability to sleep, clean her home, visit with her grandchildren, and maintain employment.

She left her employment with Gold Kist in May 2006 and began working as a security guard. The trial court held that Smith was permanently and totally disabled. Gold Kist appealed.

Reversed. Gold Kist argued that the trial court erred by awarding Smith benefits outside the schedule because her injury was limited to an injury to her ankle. A “pain exception” exists that allows an employee compensation for an injury outside the schedule. In order for that exception to apply, the pain must be “so severe that it virtually totally physically disables the worker.”

On February 28, 2009, the State of Alabama filed a Complaint seeking the forfeiture of $7,170,00 in cash seized from Gardner Carlisle. The Complaint alleged that the currency was furnished or intended to be furnished in exchange for a controlled substance in violation of Alabama law, and /or was proceedings of a controlled substance exchange. Carlisle died on June 12, 2009, and on August 20, 2009, the State filed a Suggestion of Death. The Estate of Carlisle filed a Notice of Substitution of Party. After a hearing was conducted, the trial court entered a Judgment ordering the forfeiture of the seized currency to the Estate. The State appealed, reversed. The court held that there was no evidence that the money seized was directly related to a controlled buy. The evidence of previous drug activity in this case is not specific enough to connect the seized $7,170.00 to such activity. There was no evidence regarding how much Carlisle received for the pills he sold at his residence. There was no evidence presented to dispute Carlisle’s explanation as to the sources of his money. In this case, the evidence was insufficient to connect the money that was seized to illegal drug activity. The judgment of the trial court was due to be reversed.

In a very unusual family law decision, the parties were married in Scotland in March of 2006. The wife was a citizen of the United Kingdom, and one child was born during the marriage. The child holds dual citizenships in both the United States and the United Kingdom. In May, 2010, the husband filed a Complaint for Divorce in the Circuit Court of Madison County. He sought temporary emergency relief in which he was trying to prevent his wife from removing the child from the country. The wife initiated an action the United States District Court for the Northern District of Alabama under the Article Twelve of the Hague Convention on the civil aspects of international child abduction. The mother filed a Motion to Stay the custody proceedings in the state court, while the federal court action was pending. The federal court found that the wife and the child had traveled to the United States in February, 2010, but would have returned to Scotland but for the fact that the husband filed his first divorce action and received an Order prohibiting the wife from removing the child from the United States, and granted the wife’s petition to return to Scotland.

The Supreme Court recently decided two cases that involved ineffective assistance of counsel. In the first case, the Sixth Circuit held that when counsel’s ineffective advice led to the rejection of a plea bargain offer, and when the prejudiced alleged is having to stand trial, a defendant must show but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the Court, that the Court would have accepted its terms and that the conviction or sentence, or both under the offered terms would have been less severe than under the actual judgment and sentence imposed. In this case Cooper was convicted of shooting a woman in the thigh after missing a shot to her head. The Sixth Circuit overturned the conviction after Cooper claimed ineffective assistance of counsel. Cooper’s attorney told him not to take the plea offer thinking that there could not be a finding that Cooper intended to murder his victim, but Cooper was convicted of assault with intent to murder among other charges. The Sixth Circuit held that the incorrect advice equaled unconstitutional ineffective assistance of counsel and ordered Cooper to be released. The Supreme Court held that the Michigan court applied the wrong standard when it rejected Cooper’s claim to ineffective assistance of counsel and that the proper remedy for such an error is not specific performance of the original plea, but a ring man to the trial court so that the prosecutor can re-offer the plea deal and if the defendant accepts it, the trial court can decide how to amend the original sentence. 

In the second case, involving ineffective assistance of counsel, the Supreme Court opined that the Sixth Amendment requires defense attorneys to communicate formal plea offers from the prosecution, and that the right to effective assistance of counsel extends the consideration of plea offers that lapse or are rejected. Missouri prosecutors offered a defendant Frye, two deals while seeking his conviction for driving while his license was revoked, but his lawyer never told Frye about the offers. Frye subsequently pled guilty to a felony charge and was sentenced to three years in prison. Frye argued that his attorney should have told him about the two previous deals, and a Missouri Appeal’s Court agreed. The Supreme Court held that counsel’s failure to inform the defendant of the written plea offer before it, expired fell below in an objective reasonable standard.  

Johnny Odom was a forty-six year old high school graduate who had worked in the logging industry for more than twenty years. He worked for Mercy Logging LLC., and on a given day he and two other members of his crew were coming back from a jobsite. They saw a rattlesnake in the road and decided to go back to kill the snake. Odom, who had in his lifetime claims to have caught more than a hundred snakes, grabbed the snake and was bitten in which the snake measures six fee three inches long. Odom remained in Intensive Care for thirty-five days. He filed a claim for worker’s comp benefits. At the hearing, the Court determined that he was permanently and totally disabled as a result of his injuries he sustained and awarded him benefits accordingly. The Court of Civil Appeals reversed. In its ruling it made the following decision: “In order for an injury to be compensable it must be caused by an accident arising out of and in the course of employment.” In this particular case, the more difficult question was whether in attempting to catch the rattlesnake, Odom was reasonably fulfilling the duties of his employment or engaged in doing something incident to it. Therefore, the Court of Civil Appeals reversed the trial court and Odom did not receive benefits. The Court next considered whether Odom’s injury arose out of his employment. An injury arises out of employment if it arises from any risk or danger incidental to the character of employment. The snake on the roadway posed on risk occupational or otherwise to Odom, so as long as he remained in the vehicle in which he was riding, there would not have been any danger to his jobsite.