Listening To a Regretful Adulterer

I received a poignant email message this morning. With the permission of the sender, I’m sharing it with you. Let’s call him Herbert.

Dear Lee

I want to thank you for the help you have extended with your suggestions on coping with the most devastating of life’s offerings. I am separated now for the last 6 months. It sucks. I have been unfaithful to the point of obnoxious. I have been a terrible husband to my wife and she had patiently given me enough warnings to pull my socks up. I just didn’t listen.

And then she left me. I see myself everyday in the mirror and define my image as the most vile and to be hated human being to ever walk this earth. I say this with no motive as I know she isn’t going to read this and give me a chance. I say this because I have all along known how much she meant to me even in my wandering days. I wasn’t looking for love. I was looking for cheap thrills.

The three year period is something I don’t yet understand. While I read your note, I just don’t know why that should ever make sense. I am only happy for those who could move on and succeed.

The guilt of not seeing  the signs is overwhelming. I know I can do little about it now as it is beyond me. She is happy or it seems to be and I cannot be more supportive of that by staying the hell away from her. My trouble with time healing is that time merely makes the life’s routine normal as I see and endure it every day. I have faith and I do know god is the feeling of someone giving you a listening ear when I am at my wits end. and I am. I truly am.

I do not see myself marrying again or wanting another woman in my life. I don’t deserve that kind of life.

I just wanted to write to you with no motive whatsoever. Except may be to say thank you.

I wish you well.

As I told Herbert, I think he’s exceptionally brave and unusually self-aware, which is why I think it makes sense for you to have a moment to walk in his shoes. That is all.

Plain Talk in Winston County About Drugs and Parenting

One of the most enduring stories from Alabama during the Civil War concerns the stand taken by the “hill people” of Winston County against the secession of the southern states from the US. It’s not true that the “Free State of Winston” seceded from Alabama, but it did officially remain neutral throughout the war at great cost to lives, property, and business.

We heard a little of that “Free State” candor in a recent case from Winston County Juvenile Court, A.S. v. T.R.B., Case No. 2150996 (Ala. Civ. App. June 9, 2017). It’s not yet up on Google Scholar, but I’ll keep an eye on it and add the link when it’s available. The case focuses on the arcane issue of substantive due process vs procedural due process. I don’t care much about that, and the odds are you don’t care much about it either, so let’s focus instead on the plain-spoken juvenile court judge and his admonition to the unmarried parents before him.

Each parent apparently had assured the judge that he or she was drug free. When the mother alleged that the father had a drug problem, the court ordered each parent to submit to a drug test. The judge ordered both parents to submit to a drug test, and both tested positive. Mom’s screen was positive for THC (marijuana). Dad’s was positive for THC and a faint trace of methamphetamine.

At the end of the hearing, the judge went on the record to chastise both parents:

“And the whole time we’re talking about what’s in [the child’s] best interest. You know, what are we going to do? And I’m just–I’m really–I’m upset and I’m disappointed in the both of you.

“And here’s what we’re going to do. We’re not doing the final order today. We’re going to do a temporary order. Y’all are submitting income affidavits. [P.B. and T.R.B., Sr., the child’s paternal grandparents], y’all haven’t prepared on it, but you have custody of [the child] for the next six months.

“And the two of y’all [i.e., the parents] are going to go to court referral. You’re going to get every other weekend visitation. You’re going to get every other weekend visitation. [The father is] not to have any visitation any more than [the mother] has.

“Both of [the parents] are going to go and take drug tests on Friday before they pick up [the child]. And they’re going to sit there, and they’re going to show [the paternal grandparents] the drug test. And if they’ve failed, [the paternal grandparents] are authorized by the Court to deny them visitation.

“I’m going to be clear with both of y’all. If something ain’t changed in the next six months, y’all [i.e., the paternal grandparents] gear up. You’re getting custody. And here’s–no. And here’s the thing. Y’all [i.e., the parents] have done this to yourselves.”

If you’re interested, that’s exactly what the judge did. The court scheduled a follow-up hearing seven months later. At that hearing the court apparently didn’t get the news it wanted about the parents’ drug use. The child is now living with Dad’s parents. Mom and Dad get weekend visitation, subject to a clean drug screen the preceding Friday.

3 Sure-Fire Tips for New Co-Parents

This article is provided by Tim Backes and Custody X Change.

Your divorce is inevitable. You’ve tried everything to avoid it, but it’s going to happen. No matter how you look at it, even if you know it’s the best course of action, it still hurts.

While it’s perfectly natural to feel that pain, if you’re a parent you’ll want to remember there are more than just yours and your ex-spouse’s feelings to consider. While you are no longer going to fulfill the role of a wife or husband in the short term, you are still a parent, and one half of a co-parenting duo.

A big reason why many couples put off divorce until they can no longer hold a faltering marriage together is to try and maintain some semblance of consistency for their children. Agreeing to work together as co-parents does the same thing for your children post-divorce. So what are those 3 tips?

1. Maintain a Unified Front

It’s all too easy for a recently divorced couple to badmouth their ex to their children no matter how conciliatory the split was. Sometimes you don’t even notice you’re doing it, but your children do.

It’s important to try and limit saying anything judgmental or negative about your children’s other parent. It’s OK and perfectly natural to think it, but you don’t want it to show.

Instead, by showing your children that although you and their other parent are no longer living together you are still in agreement with how you will raise them. This is the key way to maintain that sense of consistency and safety that kept you from divorcing sooner in the first place.

2. There is No Friend in “Co-Parent”

It’s very easy to forget you’re a parent and instead act as more of a friend when you and your children’s other parent aren’t living together. It’s a passive aggressive way to try and outdo or one up your ex-spouse.

By acting in such a manner, you break the concept of a unified front. It undermines the idea that although you and your ex are now divorced, you still plan to parent the same way. It also spurs a potential popularity contest between you and your ex that is absolutely not in the best interest of your children.

Children need parents. They will have friends from school and extracurricular activities. That doesn’t mean you have to be stern and cold, but you do need to maintain the boundaries that make you an authority figure and role model in their lives.

3. Follow the Rules

Part of your divorce should have been creating and agreeing to a parenting plan for your children. In that parenting plan you have to cover all the basics such as including a custody calendar. However, you can include additional provisions as well.

Whatever you and your ex put down in writing and agree to at the time of your divorce, do everything you can to follow it to a T. As mentioned before, you are still a parent and as a parent you are a role model.

By showing your children how to respect your ex and the agreements you have made, it shows them how to act responsibly. It also shows your ex that you’re not trying to undermine his or her role as a co-parent.

In Summary

Becoming a successful co-parent is actually not all that different from parenting as a married couple. You should show your children you respect your ex-spouse. You should show your children that while you can listen to them and have fun together, you are an authority figure as well. And, you should show them how to respect agreements you have made.

Don’t Try To Get DHR To Pay an Attorney Fee in Alabama

It’s a given in Alabama that when a party is in contempt of court, that party is liable to pay an attorney’s fee to the other party. So you can forgive Mark David Allen for asking for an attorney fee when DHR botched up his case. The case is Alabama Department of Human Resources v Allen, Case No. 2160310 (Ala. Civ. App. May 19, 2017).

The husband (Allen) alleged that he had paid all child support as ordered and on time. Yet DHR intercepted his income tax refunds, caused an income withholding order to be filed against him, and filed a motion to collect child support from him, alleging that he owed $58,000 in back child support.

After hearing testimony and reviewing documents, the trial court roasted DHR. In the words of the appeals court, the trial court found “that the father was not in arrears for other child support, that DHR had been negligent in its research regarding the arrearage allegedly owed by the father before attempting to collect the alleged arrearage, that DHR had encouraged the mother to file a false claim against the father for the alleged child-support arrearage, and that DHR had failed to entertain the father’s attempt to provide it with proof of payments regarding the alleged arrearage. The trial court ordered DHR to pay to the father attorney’s fees in the amount of $5, 000 ‘for [its] negligence and greed in having [the mother] file a false claim against [the father].'”

DHR appealed.

The appeals court never reached the question whether the husband was eligible to collect an attorney’s fee, because it found that DHR, as an arm of the State of Alabama, is entitled to sovereign immunity. The appeals court pointed out that the trial court could have assessed an attorney fee against a DHR official, just not against the Department itself.

“We conclude that DHR, as an agency of the sovereign state, was immune from suit for attorney’s fees for the father.” Because the trial court lacked subject matter jurisdiction to assess an attorney fee against DHR, its order directing DHR to pay one was void. And because the judgment was void, the appeals court dismissed the appeal with instructions to the trial court to vacate the portion of its judgment ordering DHR to pay an attorney fee.

Does Committing a Crime Satisfy the McLendon Standard for Changing Custody?

Most everybody who deals with custody issues in Alabama knows about the McLendon standard. Arising from the case of Ex parte McLendon, 455 So.2d 863 (Ala. 1984), the McLendon standard (after judicial reinterpretation and clarification over the years), now provides that a noncustodial parent seeking to change custody must show three things: (1) that he or she is now a fit parent; (2) that material change affecting the child’s welfare has occurred; and (3) (and this is the toughest) the advantage of changing custody will more than offset the disruptive effect of uprooting the child.

The father in this case, Weaver v Jefferson, Case No. 2160163 (Ala. Civ. App. May 19, 2017), had been awarded “primary physical custody” in the parties’ divorce. The appeals court interpreted this as sole physical custody, making its displeasure at the use of the term clear. “The term ‘primary’ physical custody is an incorrect term and is not recognized in Alabama law.”

When the father was arrested in Georgia and charged by his utility company with theft of services, the mother filed for an emergency modification and later a permanent modification of custody. The trial court granted her petition. As grounds, the trial court cited “a catastrophic medical condition of a new child” [the father had a new son, half brother to the child at issue here, who had suffered brain, kidney, and liver damage and who required considerable continuing medical attention]. The trial court also cited “some pending out-of-state legal issues” [presumably the theft of service charge]. It is important to note that even the mother’s lawyer acknowledged that the theft of services charge was unlikely to involve prison time for the father. The father appealed.

The appeals court recited the McLendon standard set forth above. It acknowledged that the mother had clearly met test number one by demonstrating that she had stabilized her home life and was now a fit parent for the child. But it found no evidence to support the trial court on either of the other two tests: “Although the mother demonstrated that she is a fit custodian, the mother presented no evidence demonstrating that the medical needs of the child’s half brother or the father’s ongoing legal issues in Georgia had affected the welfare of the child or that the positive good brought about by the change in the child’s custody would more than offset the disruptive effect of uprooting the child.”

In the absence of such evidence, the appeals court reversed the trial court and remanded with instructions that it issue an order “consistent with this opinion,” presumably an order that the child will continue living with the father.

Reducing Child Support in Alabama

Child support in Alabama is designed to be dynamic, to go up and down as Mom’s and Dad’s incomes change, and as their respective expenses for child care and health insurance change. In Humber v Humber, Case No. 2150922 (Ala. Civ. App. May 12, 2017), we have an example of what happens to child support when one of the parents gets laid off from work.

The parties were divorced in 2003, and the court ordered the father to pay child support of $1300 per month. This at a time when the father worked for USX and had enjoyed income as high as $65,000. 12 years later, though, USX laid off the father, and his income after exhausting his unemployment dropped to $12,000 per year in “supplemental unemployment benefits” from USX. USX also provided health insurance coverage to the father and his children at no charge.

The father had applied for and been offered several jobs paying $8 or $9 per hour, but taking them would have ended his free health insurance from USX. He testified that he felt “stuck between a rock and a hard place” when weighing taking another job vs. hanging onto the free health insurance.

The father filed a petition to modify to reduce his child support.  The trial court calculated the revised child support by imputing income to him at $9 per hour for a 40 hour week, and it also apparently “imputed” a $400 cost for health insurance coverage, even though there was no evidence the father had paid any cost for health insurance. This resulted in a negative child support amount, so the trial court suspended the father’s child support obligation pending the mother’s proving “beyond a reasonable doubt” that he was financially able to pay it. The mother appealed.

The mother’s first argument was that the father had failed to prove that the reduction in his income was “substantial and continuing.” Specifically, she argued that the reduction might be only temporary, because USX might recall the father at any time. She also pointed out that he would be eligible to begin receiving a pension from USX in August of 2017 which would pay up to $2,500 per month. The appeals court rejected that argument, finding that the trial court had sufficient evidence before it to determine that the father’s reduction in income was substantial and continuing.

The mother also argued that the trial court had abused its discretion by suspending rather than simply reducing the father’s child support, when he had not requested this relief. The suspension was based on the trial court’s calculation of a negative child support amount, which was in turn based on its including that $400 credit for health insurance when the father wasn’t paying it. The appeals court found this to be error. “[T]he evidence does not support the trial court’s determination that the father was to be given a $400 credit toward his child-support obligation because he was paying for health-insurance coverage for the children.” Because it was error, the appeals court reversed and remanded the case to the trial court for a recalculation of child support.

Lee’s reflections: These children are fortunate that Mom makes $89,000 as an area supervisor for a fast food restaurant. The kids are going to be okay. Dad is enrolled in community college learning to be an electrician, and he will be eligible to begin receiving his USX pension before this year is out, so he’s going to be okay too. That doesn’t keep this from being an awful time for everybody, especially Dad, but we can hope it’s temporary.

What Are the Sources of Alimony in Alabama?

Alabama courts have consistently held that determining the appropriate amount of alimony to order in divorce is a three-step process:

  1. deciding whether the recipient spouse needs it;
  2. deciding whether the paying spouse can afford to pay it;
  3. evaluating any equitable principles that should cause it to be increased or decreased.

When it comes to that middle factor, whether the paying spouse can afford to pay alimony, the courts have consistently disregarded retirement plans from which the paying spouse is not already receiving benefits, even if the paying spouse has reached normal retirement age and is simply choosing not to receive benefits.

This is and always has been regrettable and weak policy. If a person has every right to receive a retirement benefit without actuarial adjustment and is simply letting the money sit there as a financial technique, the retirement account has become analogous to a savings account. To disregard it is to engage in a fiction that enables paying spouses to live lean just long enough to get divorced and then later to live it up while their divorced spouse suffers. Nevertheless, the principle is what it is.

The current case, Meehan v Meehan, Case No. 2150734 (Ala. Civ. App. May 12, 2017), gives us an excellent illustration of what does and does not count as a valid source for the payment of alimony. The husband had built houses for a living and was apparently quite good at it, earning $231,000 during 2013. But he had recently retired, and his income dropped to $65,000.

In connection with his retirement, the husband had created a revocable trust in his name as a planning tool “for the purpose of ensuring that all five of his children were taken care of after his death.” It’s not clear how much money the husband deposited in this trust. The husband had about $860,000 in two retirement accounts but was not withdrawing money from them at the time of trial.

The trial court ordered the husband to pay the wife $5,000 per month in alimony for five years and $2,500 after that until her death, remarriage, or cohabitation. This even though the husband claimed his income was only $4,800 per month. The husband appealed.

The appeals court accepted the husband’s argument that his retirement plans were off limits, but it rejected his argument that the revocable trust was also unavailable. In doing so, it mentioned that the husband had withdrawn $50,000 from one of the accounts in the trust after setting it up.

“The husband testified that he had used those funds to pay for taxes, insurance, and maintenance on [marital property] . . . Therefore, the trial court could have found that the husband regularly used the funds from the long-term-care account and that those funds were a source of income for the purpose of determining the award of periodic alimony.”

The appeals court also mentioned the trial court’s stated observation in open court that it doubted the husband’s version of the husband’s financial situation.

 

Not Ready for Divorce Decree, But You’re Entitled to Service

Poor Kevin Allison. Unwilling either to pay someone like me $100 for an uncontested divorce or to do his own homework to find out what is needed, he filed pro se but didn’t file all the required documents, so he got a three-sentence order from a clearly exasperated court: “FINAL ORDER OF DIVORCE filed by ALLISON KEVIN DWAYNE is hereby DENIED. The pleadings are inadequate and incomplete. The parties are highly encouraged to seek legal advice.” Taking this as a dismissal of his case (and apparently waving off the course of action the judge “highly encouraged,” namely that he talk to a real lawyer), he appealed the order.

The appeals court predictably dismissed his appeal. That was his first trip to the appeals court, which you’ll find at Allison v Helms, Case No. 2160017 (Ala. Civ. App. February 10, 2017).

Now Kevin is back, having returned to the trial court, and having attempted to compel service of process on his wife. This time the case is Ex parte Allison, Case No. 2160512 (Ala. Civ. App. May 12, 2017). The trial court denied his motion, and he petitioned for a writ of mandamus ordering the trial court to proceed with service.

This time Kevin was a winner. The appeals court said it could find no basis for the trial court’s refusal to initiate service. “The husband has demonstrated a clear legal right to have his divorce complaint served on the wife. We therefore grant the husband’s petition, and we order the trial court to instruct the clerk to serve the divorce complaint on the wife.”

So now we all troop back to the trial court in Marshall County. Maybe this time these two poor folks will actually get a divorce decree.

Because this post talks about my legal practice, I need to say this: no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Forcing Testimony About Adultery in a Divorce Trial

Every divorce lawyer has a story about one (sometimes both?) spouses being forced to “take the 5th” in a divorce trial. They’re speaking of the standard technique of forcing the other spouse to claim his or her 5th Amendment privilege against self-incrimination rather than being forced to come clean with the court about an adulterous affair.

Adultery is a Class B misdemeanor in Alabama, Ala. Code § 13A-13-2, with a 1-year statute of limitations. Ala. Code § 15-3-2. So can one spouse force the other to testify about adultery if the question is limited to adultery that occurred more than a year ago? That’s the approach the wife tried in Ex Parte Edmonson, Case No. 2160432 (Ala. Civ. App. May 5, 2017).

On the first day of the divorce trial the wife’s lawyer asked the husband whether he had had sexual relations with a woman not his wife more than 365 days before the date of trial. The Husband’s lawyer objected, and the Husband asserted his Fifth Amendment privilege. The trial court stopped the trial and asked both sides to submit letter briefs concerning the husband’s right to assert the privilege. After reviewing both briefs, the trial court stayed the action indefinitely “pending resolution of any criminal charges against [the husband] and said charges against [the husband], if any, are adjudicated at the trial level.”

Now what? Neither the husband nor the wife wanted that. The Husband filed a petition for writ of mandamus instructing the trial court to lift its stay, and the wife endorsed it.

The appeals court rejected the argument of both sides that the trial court had no power to order a stay because neither party asked for it. “[A] trial court has the inherent power to control litigation in its courtroom and to manage its docket.”

The parties disagreed on whether the husband could be forced to testify about adultery that occurred more than 365 days before the trial. The husband argued that, because adultery is a continuing offense. The appeals court dismissed his argument, though. “[T]he husband’s right against self-incrimination is not implicated by questions regarding allegedly adulterous acts that occurred more than one year before the date of trial because the husband can no longer be criminally prosecuted for those acts.”

Having removed the husband’s rationale for asserting his Fifth Amendment privilege, the appeals court then rejected the trial court’s rationale for an indefinite stay, calling it “beyond the scope of the trial court’s discretion.” The appeals court granted the husband’s petition and ordered the trial court to vacate its stay.

So now the appeals court has made the only decision it could, to allow the orderly procession of divorce cases through the courts regardless of the claim of Fifth Amendment privilege regarding adultery. Now that the husband’s Fifth Amendment privilege has been thoroughly aired and discussed by everyone in the courthouse, you have to believe the wife got more divorce court leverage from his alleged affair than she ever would had he simply said “yes, we had an affair.”

And another thing: in another day, with another governor and another legislature, perhaps adultery will no longer be a crime in Alabama.

 

Is the Farm a Marital Asset?

That old farm had been in the husband’s family since before the marriage. Was the wife entitled to share in its value in divorce? The Alabama appeals court says yes, even though neither spouse ever lived there.

The case is Davis v Davis, Case No. 2150657 (Ala. Civ. App. May 5, 2017). That link, by the way, takes you to the case as provided online free of charge on Google Scholar. I just found out about it last night. I’ll be linking to cases in this way in all future blog posts. If you want to pull up one of the cases I discuss in earlier posts, it’s easy to do. Just go to Google Scholar for Alabama case law and search for the case number.

The husband in this case was 97, the wife 71. They had been married nearly 60 years, and the husband told the court his wife had wanted a divorce for 40 of them. At the time of trial the husband was in poor health, was likely blind, and was being treated for cancer.

The husband had argued at trial that the farm was his separate property because he and his mother had bought it before the marriage and put it in his brother’s name. The brother had lost the farm (also before the marriage) because of failure to pay the taxes on it. The husband purchased the farm again in his own name after the marriage. He purchased it in his own name, shared some of its income with his siblings, and used the rest for unspecified purposes.

The trial court awarded the wife the parties’ marital residence (which all parties agree needed considerable repair to be habitable) and two parcels of real property valued at $3,200. The trial court awarded the family farm (the only income-producing asset) to the husband, apparently on the grounds that it was the husband’s separate property. In its award, the trial court said the husband needed money for his medical expenses, because “I can’t allow the man to die.” The trial court said that it “expressly resolve[d] the periodic alimony issue by the division of property,” even though the settlement it ordered allocated no income-producing property to the wife.

On the wife’s appeal, the appeals court tossed aside the husband’s assertion that he and his mother had purchased the farm before the marriage, saying “the evidence is undisputed that the family lost the farm because the taxes had not been paid on it. The evidence is also undisputed that, when the husband bought the farm ‘through a contract’ in the 1970s, he was married to the wife. He did not receive the farm by means of an inheritance or as a gift.”

The appeals court stated that the trial court’s apparent conclusion that the farm was separate property was not supported by the evidence. The appeals court reversed and remanded. “In reversing the judgment, we are not determining whether the trial court must award the farm or any portion of the farm to the wife. Instead, the trial court is directed to reconsider its division of marital assets in light of our holding that the farm is marital property.”

Minimum Contacts for a Long-Arm Divorce

There are three ways a party filing for divorce in Alabama – or for that matter, filing any civil case – can get jurisdiction over a defendant who lives in another state:

  1. The defendant consents to being served.
  2. The plaintiff serves the defendant personally (hands the defendant appropriate documents) while the defendant is physically present in Alabama. Usually this is done by a trained process server.
  3. Showing to the court that the defendant has minimum contacts with Alabama such that it’s “not inconsistent” with the Alabama or U.S. Constitutions to allow the action to proceed.

This third method – minimum contacts – is often called “long-arm jurisdiction,” for obvious reasons. If you think it sounds like a really fuzzy definition, you’re right. If you think that fuzziness is bad, you’re wrong. The imprecision of the language allows courts and judges to interpret it as they perceive fairness dictates, and generally they do a pretty good job. The case we’re studying here is an example of the court’s seeming to get it right.

The wife in Logarides v Logarides, Case No. 2160332 (Ala. Civ. App. April 28, 2017 filed for divorce in Alabama even though the husband lived in Virginia. He did not object to the divorce (subject matter jurisdiction over the marriage existed just because the wife lived in Alabama) but argued that the court lacked personal jurisdiction over him and therefore could not order him to pay child support or medical expenses for the couple’s children.

Both parties submitted affidavits. The husband’s stated that he lived in Virginia and had “no meaningful contact” with Alabama. The wife’s stated that the parties were married in Alabama, that the wife had lived in Alabama while the parties were married and the husband was stationed overseas, that the children were born in Alabama, and that the husband had opened bank accounts in Alabama. She also showed that the husband had shown an Alabama address on at least one joint tax return and on various banking documents.

The trial court denied the husband’s motion to dismiss and, after findings of fact, ordered the husband to pay temporary child support and medical expenses for the children. The husband filed a petition for writ of mandamus seeking to have the appeals court order the trial court to dismiss the wife’s claim for support.

The appeals court first observed that the wife had the burden of demonstrating that the trial court had personal jurisdiction over the husband. This was the purpose of her submitting the evidence noted above. The appeals court said, “Considering the evidence submitted by the wife in a light most favorable to her as the plaintiff, the trial court could have concluded that it had personal jurisdiction over the wife and children.”

The husband had relied on Burke v. Burke, 816 So.2d 498 (Ala. Civ. App. 2001), in which the appeals court had permitted subject matter jurisdiction over the marriage but not personal jurisdiction over the defendant. The appeals court distinguished Burke, however, because the Burke defendant asserted without contradiction by the plaintiff that she “resides in the State of Florida, that she has never resided in the State of Alabama, that she does not transact business in the State of Alabama, and that she has not visited the State of Alabama.” 816 So.2d at 501.

Here, in contrast, the plaintiff alleged those various contacts the defendant had with Alabama, and the defendant did not refute them in any meaningful way. The appeals court therefore denied the defendant’s petition.

5 Things Fathers Should Know About Custody

This article is provided by Lauren Bennett and the Law Firm of Stephen Vertucci.

The dead-beat dad – we all know the stereotype – files for divorce, possibly because of infidelity on his part, then skips out on child support payments and weekly visitations with his children and eventually ceases any possible relationship with them. Why is this the such a stereotypical situation, when it’s been proven that most fathers are loving, caring parents that want nothing more than to spend time with their children and see them thrive? A mixture of Hollywood and history have added to this stigma, but times are changing and a “men’s rights” movement is in full force – which plays in favor of loving fathers.

Since most fathers are genuinely interested in their children’s lives, going into court ready to prove your dedication to a potentially biased judge is essential. Knowing the facts about often misinterpreted child custody facts can better prepare you for an emotionally stressful trial, and result in a plan that is best for the entire family.

  • The mother doesn’t always get sole-custody of the child(ren)

The common myth that the mother always gets full custody of the children is constantly disproved by courts and experts throughout the country. This idea came from the fact that long ago, mothers were typically the primary caretakers in the family, thus leading to a stronger relationship with the children and increased chances of being awarded custody if a divorce occurs.

In the modern age, many women work equally to the amount of the father and two-income households have become the norm – this evens the playing field for mothers and fathers in terms of how much time each parent gets to spend with the children. The Family Court is not permitted to use gender bias when determining custody of a child.

  • Child custody arrangements can be modified

The courts understand that life changes and that a child custody arrangement may need modification to keep up with it. At the forefront of the child custody process is the child’s best interest – the court will always attempt to do what is best for the child.

When one or both parents request a child custody modification, the court does not take the process lightly. This process is notoriously emotional and stressful, which is why its suggested that a modification only be requested when it is clearly a better option than what was originally agreed upon.

Once a parent requests a modification, the court will consider changes in the child’s schedule, geographic location changes of the parents or child, and environmental changes in the home the child is currently residing in that cause danger to the child’s physical, mental, or emotional health.

  • Child custody cases are often settled before reaching court

Although many people think that child custody cases are resolved in court by a judge, only about 4% of cases see the inside of a courtroom. Child custody cases are almost always solved outside of court by the parents or through a process known as mediation.

The mediation process allows both parties to work together and come to an amicable agreement – and skip the hefty fees of dragging a case to court. According to Stephen Vertucci, a Colorado attorney who has experience mediating child custody cases, “If you and your spouse can agree, the court will usually go along with your decision. It is nearly always preferable for the parents to work these things out on their own.” Other than the financial aspect, mediation has huge benefits, including:

  • The ability to work together with your ex-spouse and come to an agreement that is best for your children
  • Coming to an agreement much quicker than in court – typically within a week or two
  • A neutral party conducting the mediation that is not personally invested in either side of the custody battle
  • The ability to speak freely throughout the process without having your words used as evidence in court

While it seems that mediation must be done face-to-face with your ex-spouse, it’s possible for it to be done separately. This works well if you and your ex don’t have the best relationship and prefer to not be in the same room. The mediator will go back and forth between the two of you until an agreement is reached; allowing you and your spouse to work amicably together while maintaining your space.

  • The parent who files for divorce doesn’t automatically forfeit custody

A common misconception about the child custody process is that the parent bringing the case is automatically forfeiting their chances of getting custody. While this seems “logical” – it’s entirely false. The family court likes to see parents putting the needs of their children before their own desires. When a parent comes forward and decides that ending the marriage is what is best for the family – the court sees that as a strength. Don’t automatically assume you don’t have chance for child custody, even if you were the one who filed the divorce papers.

  • The Family Court takes several factors into account when determining custody

As mentioned before, family courts are forbidden from taking parent gender into consideration when determining custody. However, this does not prevent a judge from using his or her personal discretion in a custody ruling – meaning they can award custody to the mother if they believe a “traditional” situation is the best option. What is uniform across all states is the “best interest of the child” standard which may ambiguous at times, leading the judge to use his or her personal discretion.

Some aspects you can expect a judge to consider when determining the “best interest of the child” are the following:

  • Age of the children – Some judges believe that younger children (typically under the age of 5) need to be placed with the mother, as these are considered the “tender years” of development. In the past, the “tender years” doctrine ensured the mother would get custody of children 5-years-old and younger but has since been phased out of the legal system. Some judges still believe younger children should be placed with their mothers, especially nursing infants.
  • The parent/child relationship – You can certainly expect the judge to consider the relationships between the children and each parent. If the mother stayed home with the children and spent most of the time caring for them, there’s a bigger likelihood she will have a stronger bond with them. But this doesn’t always mean it’s the end of the road for fathers – judges will consider the time spent with the children, along with personal accounts from each parent and usually the children.
  • Living situation of each parent – This one is huge – most judges will consider a parent that has their own established home over one that is in a temporary living situation. If you’ve moved into a hotel or are staying with a friend while you go through your child custody battle or divorce while your spouse stays in the family home, you can expect the judge to side with the opposing side. Make sure your living situation is as stable as possible before entering a child custody battle if you want to have a better shot at getting custody of your children.

There’s no doubt that divorce and child custody are stressful and intimidating processes. But, if you go in ready, you are more likely to have an ideal outcome for you and your loved ones – especially your children. It’s important that you explore all your options and strongly consider the best scenario for all parties involved in order to have a quick and manageable process, and get back to normalcy as soon as possible.

Classic Case of Signer’s Remorse

I don’t know Ronnie Ray Jones, Jr. From reading about his divorce case in Jones v. Jones, Case No. 2160014 (Ala. Civ. App. April 7, 2017), that’s probably for the best. Poor Mr. Jones can’t seem to hold on to a divorce lawyer or make up his mind. He fired his first lawyer and hired Delk, lawyer number 2. Working with lawyer number 2, Mr. Jones negotiated a settlement and signed a stipulation of agreement. A few days later, both parties and their counsel notified the court that they had settled. The court ordered them to submit final documents within 30 days. On that same day, the wife’s lawyer sent lawyer number 2 a draft of the final documents.

The husband never signed the documents. A few days after the 30-day deadline had run, lawyer number 2 asked to withdraw on the grounds that Mr. Jones instructed her to do so. That same day, the court set a hearing on “all pending motions” and immediately entered it on the State Judicial Information System. Four days before the scheduled hearing date, Belser, lawyer number three, entered an appearance on behalf of the husband.

Neither the husband nor lawyer number three showed for the hearing. The trial court called the office of lawyer number three and left a voicemail stating that unless he responded in half an hour, the court would continue the hearing without him. 34 minutes later, the court did so, ratifying the stipulated agreement and divorcing the parties.

Three weeks after the hearing and the court’s order of divorce, the husband filed a motion seeking to alter, amend, or vacate the judgment. The husband said he knew about the hearing but thought it related only to the withdrawal of lawyer number two and was therefore moot. Lawyer number three said he didn’t know about the hearing. Said he had looked on the Information System but hadn’t seen it.

The court scheduled a hearing on the husband’s motion. After the hearing, the husband filed an “addendum” to his postjudgment motion claiming confusion about what was in the stipulation of agreement.

Three days later, the trial court denied the husband’s motion, pointing out that he had the assistance of counsel when he signed the stipulation of agreement and that he had presented no evidence that he was illiterate or coerced when he signed. The husband appealed, arguing that there was no “meeting of the minds” at the time he had signed the stipulation of agreement. In a gutsy move, the wife did not respond to the husband’s arguments with a brief of her own.

The appeals court said the husband’s assertion is at odds with basic contract law.  “[One] may be ‘bound’ by a contract in ways that he did not intend, foresee, or understand.” The appeals court quoted Lilley v. Gonzales, 417 So.2d 161, 163 (Ala. 1982): “Where a contract is unambiguous and plain in expression, we know of no canon of construction that warrants an interpretation the only effect of which is to relieve a party to the contract from consequences deemed by him hard or unfair. Where the parties express without ambiguity their intention, no court can alter the agreement, and no room for judicial construction is left.”

The appeals court affirmed the trial court’s ruling.

What To Do When Your Spouse Won’t Leave the House

I’m assuming for purposes of discussion here that your spouse is living in your marital home and has agreed to leave but now doesn’t seem to be moving or making any plans to move. Let’s break this down to a series of “ifs:”

If you have a binding agreement specifying a date certain for your spouse to vacate the house and a judge has incorporated that agreement into a decree, that means you don’t just have a contract; you have an order from a judge instructing your spouse to move. And that means that, unless your spouse can show he is unable to comply, he is in contempt of the court. In most states, that means the judge may not only order him to comply immediately but also assess him for your attorney fee for forcing his compliance. That’s a powerful hammer you can threaten to use without actually using (as in a polite matter-of-fact conversation with your spouse) and make it clear your spouse has all the incentive he needs to get moving. Pronto.

If you have a binding agreement that’s not yet incorporated into a decree, it’s good to have but much less useful for forcing compliance. In order to force compliance, you would need either to incorporate the agreement into a decree so you can have the leverage described in the preceding paragraph, or resort to suing your spouse to force compliance on your own.

If all you have is an informal assurance from your spouse that she’ll be gone by a date certain, even if that assurance is in writing, your spouse has failed to comply with a moral obligation. You may be able to shame her into complying, but you will have difficulty forcing compliance. What the broken promise does do is to make it easier for you to negotiate a firm date for the move.

Applying Same Sex Ruling to a 40-Year Old Relationship

A judge in South Carolina has ruled that a same sex couple were married at common law for almost 30 years.

Everyone remembers when the US Supreme Court issued its landmark ruling in Obergefell v. Hodges, Case No. 14–556 (U.S. Sup. Ct. June 26, 2015), in which SCOTUS accorded to same sex relationships the same status accorded to heterosexual unions. Ruling in the wake of Obergefell, Family Court Judge Thomas White ruled that two women who had maintained a monogamous relationship over nearly four decades and had called themselves married even to disapproving family members had become married at common law. You can read more about it in the Rock Hill Herald.

White reached his decision despite the illegality of the couple’s relationship over most of its life. “The law established by the U.S. Supreme Court in Obergefell should be applied retroactively in South Carolina,” he said in his opinion. Several family law experts quoted in the Herald article seem to agree on four things about Judge White’s ruling: (1) it’s new; (2) it’s important; (3) it’s correctly reasoned and decided; and (4) it’s almost sure to be challenged on appeal.

“I want people in my situation to know they do have rights, and can get help,” the Herald quotes Parks as saying. “We were married.”

South Carolina is one of eight states that still recognize common law marriage, a marriage that forms automatically even without the exchange of marriage vows when both spouses intend to be married. Alabama recognized common law marriage until 2017 and still recognizes it for marriages formed before 2017.

 

 

A Case Not Yet Ripe for Appeal

With rare exception, parties may not appeal a divorce case until the trial court’s judgment is final. We have a recent illustration of that in Exum v Exum, Case No. 2150948 (Ala. Civ. App. March 10, 2017). The parties had been divorced since 2010. In 2015 the father asked the trial court to hold the mother in contempt; he later added a request that the court award him custody of the parties’ child.

The trial court declined to hold the mother in contempt but awarded the father “primary” physical custody of the child. In its order, the trial court instructed the parties to submit CS-41 forms and a suggested CS-42 form and said it would follow up after receiving those documents with “a separate child support order.” The father responded with forms, but it’s unclear from the record whether the mother did.

An attorney entered the case after the initial trial and filed a motion to set aside the custody modification order. When the trial court denied that motion, the mother filed a notice of appeal.

Neither party raised the issue of appellate jurisdiction, but the appeals court raised it ex mero motu (on its own). Citing a similar fact set and a similar ruling in Tomlinson v. Tomlinson, 816 So.2d 57 (Ala. Civ. App. 2001), the appeals court ruled that the mother was taking an appeal from a nonfinal judgment and that her appeal was therefore due to be dismissed.

When It Comes To Ordering Retroactive Child Support, Does “May” Really Mean “Must”?

Yokley v Yokley, Case No. 2150814 (Ala. Civ. App. March 3, 2017) is a case about retroactive child support. It’s also about the award of a house in divorce, but that issue isn’t particularly interesting, so we’ll ignore it.

The parties had two minor children. They lived with the wife during the 21 months the parties were separated before their divorce trial, but the husband provided almost no support for them. The trial court ordered the husband at trial to pay $760 per month in child support but did not make the award retroactive. On Mom’s appeal, the appeals court reversed on the issue of the retroactive child support award, citing four cases: (1) Brown v. Brown, 719 So.2d 228, 232 (Ala. Civ. App. 1998); (2) Vinson v. Vinson, 880 So.2d 469 (Ala. Civ. App. 2003); (3) Pate v. Guy, 942 So.2d 380 (Ala. Civ. App. 2005); and (4) McCaskill v. McCaskill, 404 So.3d 186 (Ala. Civ. App. 2012).

“Accordingly, based on [the cited cases], we reverse the divorce judgment to the extent the trial court declined to award retroactive child support, and we remand the cause for the entry of such an award, taking into consideration the parties’ incomes and pertinent financial provisions of the divorce judgment.”

Each of the cited cases, and now Yokley, states the rule permissively, that is that the trial court may award retroactive child support. Then each case, and now Yokley, reverses when the trial court fails to do so. Clearly, a court still has discretion to fail to award retroactive child support. Increasingly, however, the reasons for exercising that discretion must be clearly stated in the trial court’s opinion and give due deference to what the Pate court called “the well-established principle that parental support is a fundamental right of all minor children.” 942 So.2d at 385.

Alimony in Gross Must Not Exceed Present Estate

A pair of recent Alabama cases stand for the same principle, so we’ll combine them in the same note.

It takes nerve to appeal an award of $5,000 on the grounds that you don’t have it. And yes, this husband must have nerve. In Pylant v Pylant, Case No. 2150787 (Ala. Civ. App. February 10, 2017), he reported that his assets included only two automobiles in which he had a total equity of less than $2,000. He admitted that he owned some clothing, tools, and furnishings, but he argued they weren’t worth anything to speak of. The trial court ordered alimony in gross of $5,000 and periodic alimony of $250 per month, stating in its opinion that the husband “was not completely candid at trial about his finances” and that “he is fully financially able to pay the small sum awarded to the [wife].” The husband appealed.

The appeals court said that whether the husband could pay the amount of alimony in gross was not the issue. Instead, alimony in gross is paid out of the estate of the spouse at the time of the divorce. This means it cannot exceed the value of the estate at the time of the divorce. So the appeals court reversed, saying “[The] alimony-in-gross award in the present case exceeds the value of the husband’s estate at the time of the divorce, and it is therefore due to be reversed.” Because property settlement and alimony awards are interrelated, the appeals court reversed both decisions for the trial court to reconsider upon remand.

Is this a victory for the husband? Certainly in the short term, but the trial court easily could re-balance the current support and property division to accomplish a similar wealth effect, and the appeals court has certainly left the door open for that strategy.

And in the case of Johnson v Johnson, Case No. 2150936 (Ala. Civ. App. March 3, 2017), the appeals court considered the same principle in the case of an elderly divorcing couple. The husband in Johnson argued on appeal that his estate did not equal the award of $20,000 in alimony in gross from the trial court. The appeals court agreed and reversed. “The record does not contain sufficient evidence from which the circuit court could have inferred that the husband’s present estate was valued at $20, 000, much less a greater amount from which $20, 000 could be equitably deducted.”

On dissent, Judge Thompson argued that the trial court’s award was not alimony in gross but was property settlement, intended to compensate the wife for investments she had made in the marriage. “Given the nature of the wife’s request, i.e., that it was for recoupment of a portion of her claimed financial contribution to the marriage and not a form of future support, as well as the trial court’s specific determination that it had fashioned a ‘property settlement, ‘ I believe the main opinion errs in characterizing the property settlement as an award of alimony in gross.”

Can You Seal Your Divorce Record?

Nearly everyone going through a divorce prefers that the record for his or her case be sealed so it remains private. On the other hand, the public has an interest in protecting the justice system from private arrangements that might compromise the judicial system. And a transparent judicial system available at all times for public inspection ensures that litigants are able to predict how judges will rule in many cases, which helps them negotiate with each other with greater confidence. This, in turn, fosters greater judicial economy.

So how should judges rule when one of the parties requests that the proceedings in a divorce case be sealed? We have a useful explanation available to us in the form of Ex parte Gentry, Case No. 2160155 (Ala. Ct. Civ. App. January 27, 2017). In the midst of a proceeding dealing with a petition for grandparent visitation, the trial court in Jefferson County directed the circuit clerk to “place this entire case UNDER SEAL” (capitalization in the original). No party moved the court to take this action, no hearing was held on it, and the order provided no reason for the action. On the appeal of the children’s father objecting to the placement of the seal, the grandparents simply responded that the court sealed the case because the cases “involve[] minor children and embarrassment or irreparable harm could occur.”

In its analysis of the arguments on either side dealing the sealing issue, the appeals court quoted extensively from Holland v. Eads, 614 So.2d 1012 (Ala. 1993): “‘Generally, trials are open to the public. However, public access must be balanced with the effect on the parties.’ Ex parte Balogun, 516 So.2d 606, 610 (Ala. 1987). Nevertheless, the decision concerning access to the court records has long been recognized as within the trial court’s discretion. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). This does not mean that the trial court’s discretion should be unfettered; rather, it should be governed by legal rules and standards.”

After discussing the advantages to the public from openness and freely available court records, the appeals court further quoted Holland: “There is a presumption in favor of openness, which can be overcome only by clear and convincing evidence that an individual’s privacy interest (as set out above) rises above the public interest in accessHolland, 614 So.2d at 1016 (emphasis in original).

With reference to the Gentry case, the appeals court observed that the trial court’s order sealing the cases contained no written findings of the need for sealing the records and that “the wholesale sealing of an entire record is by its nature overbroad . . . Although no party brought a motion seeking to seal any part of the record, we conclude that, under Holland, a trial court considering whether to seal documents must hold a hearing at which the parties may present arguments regarding the necessity of sealing specific parts of the record. Any order sealing any portion of the record must contain written findings in compliance with Holland that clear and convincing evidence supports a conclusion that the relevant “privacy interest (as set out [in Holland]) rises above the public interest in access.” Holland, 614 So.2d at 1016. The appeals court therefore granted the father’s writ of mandamus insofar as it related to the court’s sealing of the case record.

Holland and Ex parte Gentry are useful in that they clarify the need for a hearing and findings of fact before sealing a family court ruling, but they don’t fully respond to the issue. It’s not at all unusual for both parties in a divorce case to desire for the proceedings to be sealed, so simply giving both parties an opportunity to register objections to sealing is incomplete. Someone needs to take account of and articulate the public interest in full disclosure and comprehensive transparent records. That’s the interest most easily ignored in cases like this.

Alabama Relocation – Sample Notice

If you’re subject to divorce in Alabama involving minor children, and if you are planning to move, you need to give the other parent notice of the move, and the notice must be by certified mail. Note that this covers not just custodial parents but non-custodial parents as well.

So what should your notice say? Let’s start with the statute, Ala. Code § 30-3-165. I have added its text below the sample notice. The easiest way to make sure your notice complies with the statute is simply to go down the list and include the information in order. Each paragraph of the notice below is keyed to an item on the list of the required elements in the statute. Your notice should be in the form of a letter addressed to the other parent by name. You don’t need to put each element in a separate paragraph; you can combine two or more sentences in a paragraph. And of course, your notice need not include the numbered references. They’re just here to help you tie each statement to the statute.

This is the notice of my relocation in compliance with the Alabama Parent Child Relationship Protection Act.

(1) My new address will be 2635 Goodroad Street, Mitchell, KS 60527.

(2) My mailing address is the same.

(3) I will not have a land line at my new address. I plan to keep my same cell phone number, 205-999-9999.

(4) Mitchell will be attending Henderson Middle School, 5764 Education Way, Mitchell, KS 60527, phone number 609-427-2864. Mallory will be attending Henderson Elementary School, 5762 Education Way, Mitchell, KS 60527, phone number 609-427-1976.

(5) My move will be during the week of July 5-10.

(6) I am making this move to accept a position as curriculum director for Mitchell city schools.

(7) I propose that we leave our custody arrangements and visitation schedule unchanged.

(8) The statute requires me to inform you that an objection to the relocation must be made within 30 days of receipt of the notice or the relocation will be permitted.

 

For reference, here is the text of the statute.

30-3-165. Notice

(a) When a notice is required by either Section 30-3-163 or Section 30-3-164, except as provided by Section 30-3-167, the notice of a proposed change of principal residence of a child or the notice of an intended or proposed change of the principal residence of an adult as provided in this article must be given by certified mail to the last known address of the person or persons entitled to notification under this article not later than the 45th day before the date of the intended change of the principal residence of a child or the 10th day after the date such information required to be furnished by subsection (b) becomes known, if the person did not know and could not reasonably have known the information in sufficient time to comply with the 45-day notice, and it is not reasonably possible to extend the time for change of principal residence of the child.

(b) Except as provided by Section 30-3-167, all of the following information, if available, must be included with the notice of intended change of principal residence of a child:

(1)     The intended new residence, including the specific street address, if known.

(2)     The mailing address, if not the same as the street address.

(3)     The telephone number or numbers at such residence, if known.

(4)     If applicable, the name, address, and telephone number of the school to be attended by the child, if known.

(5)     The date of the intended change of principal residence of a child.

(6)     A statement of the specific reasons for the proposed change of principal residence of a child, if applicable.

(7)     A proposal for a revised schedule of custody of or visitation with a child, if any.

(8)     A warning to the non-relocating person that an objection to the relocation must be made within 30 days of receipt of the notice or the relocation will be permitted.

(c) A person entitled to custody of a child who is on active military service in the Armed Forces of the United States of America and is being transferred or relocated pursuant to a non-voluntary order of the government shall provide notice of change of principal residence of a child to the persons entitled to custody of or visitation with a child with the information set forth in subsection (b) except that such notice need not contain a warning to the non-relocating person as provided in subdivision (8) of subsection (b) that an objection to the relocation must be+ made within 30 days or the relocation will be permitted.

(d) A person required to give notice of a proposed change of principal residence of a child under this section has a continuing duty to provide the information required by this section as that information becomes known. Such information should be provided by certified mail to the last known address to the person or persons entitled to such notice within 10 days of the date such information becomes known.

Cite as Ala. Code § 30-3-165 (1975)