Alabama Allows One Parent Full Discretion Over the Other Parent’s Visitation

I’m not sure the Alabama Court of Civil Appeals realizes the full import of what it has just done. For as long as I can remember, judges have been careful to fashion visitation restrictions based on objective criteria. Specifically, they have been careful not to give to one parent the authority to stop another parent’s visitation with the child they share based solely on that parent’s opinion. About anything. Now in Watkins v Lee, Case No. 2150748 (Ala. Civ. App. January 6, 2017), the appeals court let stand a trial court’s ruling that a mother can in her discretion stop visitation with the father “if she believes that he is under the influence of drugs or alcohol or that he is placing the children in an unsafe environment or a place of danger.”

If, as they say, hard facts make bad law, these are hard facts. There’s no question that Dad is one bad dude. He has a history of drinking to excess, using and selling drugs, and beating up Mom. Like most violent men, he has a great story to tell about why. Basically, I only beat her up – repeatedly – ’cause she lied to me about my other child.

I understand the dilemma the trial court faced. It wanted to give this mother – who never married the father but shared two children with him – the strongest possible toolset to protect herself and her children. However, handing any parent the discretion to stop the other parent’s visitation is fraught with peril, as I fear we are about to find out.

What the trial court could have done instead would be to set up a bristling series of drug and alcohol tests that Dad would have to maintain in a clean state as a prerequisite to his continued visitation rights. Then Mom could stop the visitation for noncompliance. That’s objective; yet it protects the children. The trial court could also have required that visitation be supervised and/or occur at a designated public place where the children’s safety could be more easily protected.

The court’s opinion is Per Curiam, with a special concurrence by Judge Thomas and a dissent by Judge Moore. It’s possible that this bad law is happening because of bad lawyering. The Per Curiam opinion notes Judge Moore’s dissent and acknowledges the arguments he makes in it, namely that Dad’s fundamental right to access to his child is being controlled by Mom. But in a breathtaking dismissal, the main opinion says it didn’t need to consider those arguments because the father didn’t submit enough legal decisions backing them up.

“Despite their relevance to his appeal, the father has not referred this court to any of the authorities upon which the dissent relies in reaching its conclusion. Indeed, the father has not cited any authority discussing limitations on a custodial parent’s discretion to deny a noncustodial parent’s visitation.”

Justice Thomas offered a special concurrence in which she argues that the provision giving Mom the power to stop Dad’s visitation did not provide Mom more discretion than she would have in its absence, because a parent is never required to comply with visitation if it would be unsafe for the children. As Judge Moore points out in his dissent, however, “I agree that a custodial parent has a duty to protect the safety and welfare of his or her child from an objective threat of harm, even one posed by a noncustodial parent, but the restriction in this case authorizes the mother to deny the father visitation in broader circumstances. Under the language of the restriction, the trial court has given the mother the absolute discretion, based on her purely subjective observations or conclusions, to deny the father visitation.”

Judge Moore didn’t say it, but there’s also a vast difference for Dad in this case from where he would have been if Mom simply denied visitation because of concern for the children’s safety in the absence of a provision authorizing her to do so. If she denied visitation without authorization, Dad can bring an enforcement petition, with its accompanying risk that she will be held in contempt if she knowingly violated the judge’s order. Here, by contrast,  even if Dad is stone cold sober and thoroughly protective of the children, everything Mom will have done, even if she’s just confused about Dad’s sobriety, is in compliance with the judge’s order. Dad’s only remedy, apparently, is to seek a modification of the judge’s order on the grounds that there’s been a material change in circumstances. Tough standard.

The Status of Pets in Divorce

I remember vividly the conversation I had with Judge John C Calhoun as a brand new divorce lawyer in Jefferson County Domestic Relations Court. The documents I produced in my first uncontested divorce were – predictably – riddled with errors. Judge Calhoun slowly and patiently worked through them with me and pointed out each change I needed to make and why. I’ll always be grateful to him for that.

When we got to the language where I had called for the husband and the wife to take turns spending time with their golden retriever, I feebly protested his telling me to take it out. He looked at me – I already knew I was in trouble – put down his pen and took off his glasses. “Counselor, I ain’t gonna have nothing to do with visitation for a damn dog.” I got the message. One of those mistakes you need to make only once.

Judge Calhoun was expressing the clear consensus among family court judges in America, and for that matter across the world. Divorce courts have enough to say grace over without getting into people’s relationships with their pets. I routinely ask my clients whether there’s anything we need to say about pets, but their options are limited; they can describe who will own the cat, but that’s about it. The judge will not enforce, and will not allow parties to insert, provisions describing schedules, duties of care, or visitation.

Now comes word of a judge in Canada who has taken the time to spell out the reasons divorce courts are not interested in getting into the lives of pets. After acknowledging that “Dogs are wonderful creatures,” Justice Richard Danyliuk wrote in his ruling for the Court of Queen’s Bench for Saskatchewan, “After all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”

It took him 15 more pages to lay out in patient detail why he would not order a visitation schedule for the three dogs belonging to the parties, 13-year-old Quill, 9-year-old Kenya and 2-year-old Willow. The article in the Washington Post doesn’t get into the minutiae of his reasoning, but you can probably guess at some of it.

“I strongly suspect these parties had other personal property, including household goods,” he wrote. “Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast?”

The article quotes David Grimm, the author of Citizen Canine: Our Evolving Relationship with Cats and Dogs. According to Grimm, the status of animals as property means “they basically legally have the same status as a couch or a toaster.”

The dilemma that family courts face is this: pets may not be children, but they’re not simply property either. Pets can now be beneficiaries of trusts in most states, and occasionally, courts appoint lawyers to represent them. All 50 states prohibit cruelty to animals.

“Clearly, nobody’s going to fine you for setting your couch on fire or taking a bat to your toaster,” Grimm says.

Our views and shared understanding of our relationships with our companion animals have evolved significantly over the last century. It’s only in the last few decades that society’s view of animal cruelty has permitted states to treat animal cruelty as a felony rather than a misdemeanor. As society’s views change, it’s certainly possible that family courts will follow suit. However, I’m not yet seeing any sign of it in the courts where I practice.

So where does that leave pet lovers when they divorce today? Exactly where they’ve been for the last century or so. The judge in their divorce case will allow them to specify who gets the standard schnauzer named Rascal or the grey and yellow cat named Precious, but those parties will strike out (and spend extra money for no good reason) if they try to specify anything else in their divorce decree.

Gwyneth Paltrow and the Pernicious Myth of the Perfect Divorce

Oh my. Now we have Gwyneth Paltrow, of all people, proudly proclaiming that she and Coldplay lead singer Chris Martin have the “perfect” divorce. “He’s at my house every single day. We still have our family life.”

Paltrow says she thinks she and her Ex Martin, who split two years ago, “have contributed something positive to the culture of divorce.”

Good for them. If they’re together every day, and if, as she says, Martin would still “take a bullet” for her, that’s good news for their children. But let’s please not get this confused with the real world populated by real people getting real divorces.

My work is focused on divorce for couples who are able to be reasonably cooperative, and I certainly see more than my share of couples who still have a great deal of affection and respect for each other even as they work through the gritty details of their split-up, so you would expect me to be sympathetic with, even encouraging of, the rosy outlook about divorce Paltrow promotes. The problem is that it’s wildly unrealistic and therefore more likely to harm than help.

Divorce hurts; even the most cooperative divorce is full of searing pain for both spouses. It may be different in character and come at different times, but pain for both spouses is almost guaranteed in divorce.

Gwyneth and Chris have celebrity lifestyles that may allow them to adapt their schedules to spend as much time as they wish with their children, but most of us don’t. Taking care of children is difficult nowadays even in intact families; it becomes more challenging when the parents live in different households.

There’s every reason for couples who know they need to divorce to cooperate with each other, to stay in regular communication with each other, and even to laugh together as they work through the details of their divorce. But it won’t be perfect; it won’t even be pleasant. Arguing that it should be doesn’t “contribute something positive to the culture of divorce;” it just adds yet another way for divorcing couples to feel like they’ve failed.

Prenups and Intellectual Property

Regular readers know I believe prenuptial agreements are overused. Too often they make the injustice of divorce worse by rewarding a breadwinner spouse (usually the husband) and leaving the stay-at-home-and-care-for-the-children spouse (usually the wife) poorer than she would have been under normal principles of family law.

Unfortunately, it appears this trend will be made worse by what the New York Times is reporting as a burgeoning trend of millenials signing prenups to protect each spouse’s intellectual property rights, like copyrights, web site startups, books written, etc.

It’s not at all unusual for spouse A to support spouse B while B is working on a book, or a web site, or a startup company. By definition, B contributes nothing in the early stages of the work, and maybe the family lives on beans and corn bread, but both spouses are hopeful that they’ll both enjoy a big payoff when the work is finished or at least further along. If their marriage ends after A has been providing support but before there’s any meaningful payoff, normal principles of family law would at least consider an argument that, particularly after a lengthy marriage, the result of B’s work is a marital asset available for division between the spouses.

On the other hand, if A and B signed a prenuptial agreement 15 years ago that allowed each spouse to walk away from even a lengthy marriage without the need to share intellectual property with the other, A gets the shaft. Spouse A worked hard, ate all that beans and corn bread (probably after being the main one who cooked it), and now gets nothing, while B goes on to sell that great startup to a mega-corporation for billions and retires to a  ranch in Nevada to raise Australian show horses. Seems unfair to me, and perhaps to you too.

In most states, though, prenuptial agreements don’t need to be fair to be enforced if both spouses have their own advocate at the time they’re negotiated. And having been the advocate for a few of those spouses, I can tell you that the advocate has little influence and almost no leverage when both spouses are eager to say “I do.”

If you know someone who’s caught up in romance and is surrendering to their lover’s demand for a prenup, please share this with them. They may still agree to the prenup, but at least there’s a better chance they’ll remember the risk down the road.

The Spilling of Data in Divorce

When husbands and wives divorce, data often spills out in embarrassing ways. When they engage in a contentious, mutually destructive divorce, data can flow out in a swiftly flowing river that may change their lives forever. This article in the New York Times provides several instructive examples.

When both spouses hire separate high-powered lawyers to represent them, and those high-powered lawyers each hire high-powered consultants to ferret out fragments of information about the other spouse, the results can be devastating to both spouses. Most of us never stop to think just how much our personal computer, iPad, or smartphone reveals about our lives. We are joined to them so completely, so seamlessly, that they become our confidant, our filing cabinet, our doctor, our therapist, our garbage can, and our mommy, all rolled into one.

One of the more striking quotes from the article is from one of those lawyers: “Anything they put in a text or an email or in social media, assume it will be blown up onto a poster board in a courtroom one day.”

Even in the friendliest divorce, the public record the spouses create in their divorce can reveal information about them they both would prefer stay private. That’s why I work to make the documents I file in cooperative divorces as boring as possible. Any time I can omit detail without compromising clarity, I do. Both spouses seem to appreciate it. That’s one of the many advantages of cooperative divorce. It’s particularly applicable to high profile and wealthy couples, who have the most to gain from keeping their parting quiet and amicable.

Because this page discusses 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.

RIP Alabama Common Law Marriage

When you ring in the new year December 31, bear in mind that you’re sounding the death knell for common law marriage in Alabama. You can read HB332, which makes the change. Before you assume that means the end of all conversations about common law marriage, though, know that HB332 does NOT take away the ability to assert a theory of common law marriage in Alabama divorces. Specifically, what it does is to establish that a common law marriage cannot begin after December 31.

The bill (which will become effective as law December 31 at midnight) specifically provides that an “otherwise valid common law marriage entered into before January 1, 2017, shall continue to be valid in this state.”

How does a common law marriage become effective? By a shared intent on the part of both the man and the woman to be husband and wife. Obviously, we can’t crawl up inside his head and hers and know whether and when each intended to be a spouse, so the courts look at the behavior of both spouses, trying to discern from what they said and did whether they considered themselves married.

As a practical matter, one can assume that the consequence of HB332 are that attempts to demonstrate the existence of common law marriage will now be limited to evidence of what each spouse said and did before January 1, 2017. And that means common law marriage will become harder and harder to prove. Eventually, more judges hearing divorce cases will have never given any thought to common law marriage; to them, claims of its existence will seem increasingly exotic and implausible.

Read that, it’s simply a matter of time before common law marriage really is dead in Alabama.

Same Sex Divorce Is Now Routine in Alabama

In the wake of the historic same sex marriage ruling from the Supreme Court in Obergefell v Hodges, it seemed it would take forever for Alabama to accept it as the law of the land. The marriage part is still up in the air, with probate judges in a handful of states reenacting the closing of municipal swimming pools in the 50s. Probate judges in several counties (including Elmore County where I reside) are avoiding issuing marriage licenses to gay couples by simply folding their arms and refusing to issue marriage licenses to anyone.

As a boy growing up in segregated Montgomery, I know from personal experience how frustrated and angry white children and black children alike felt about the blunderbuss impact of closing municipal swimming pools just so black children couldn’t swim in them. I can only imagine how silly it seems to most young straight couples (who tend to be much more open minded about homosexuality than us old people) that the judge in their county is so homophobic that he’s willing to deny them a marriage license in the county where they live just so he doesn’t have to do anything nice for gay people.

But I digress. This is not about gay marriage. It’s about gay divorce, and here the news seems to be both simpler and better. I am not now aware of any Alabama county where judges are resisting granting divorce decrees to gay litigants.

In my world of cooperative divorce, I have obtained divorces for both lesbian couples and homosexual male couples. There is a tiny wrinkle, namely that the state’s electronic filing system isn’t yet upgraded to accept the input of two males or two females as spouses. We’re working around that little glitch, though, and the process of obtaining a divorce for gay couples seems to be flowing smoothly.

After scratching my head about it for awhile, I’ve decided to charge the very same flat rates to gay couples for a cooperative divorce that I do to straight couples. There are a couple of extra steps required, but not enough to justify charging more. Besides, we make life hard enough for gay couples as it is without my levying a divorce surcharge on them.

Because this page discusses my 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.

Divvying Up Kids When the Kids Aren’t Kids

The percentage of young adults living with their parents, step-parents, grandparents, and siblings is up sharply, from 25% in the fifties and 33% in the nineties to 40% today, the highest since the Great Depression. Here’s a story about it from CBS, and another from Fortune.

So divorcing couples who thought their children would be grown and gone by now are finding themselves in the awkward position of negotiating with each other about how to share the cost of caring for a 25 or 32 or 44 year old child who’s able-bodied and thoroughly functional but not yet self-supporting. And they’re doing so without any help from the courts, who view any able-bodied adult who’s reached the age of majority as self-supporting by definition.

I worked with Harry and Florence as they negotiated the issues of their divorce. Their discussions about caring for their 28-year-old son Toby were no more painful than the other issues they confronted, but Harry and Florence did have different points of view. Specifically, Toby lived with Florence rent-free, and Harry thought it was time either to charge him for room and board or to ease him out of her home. Florence wasn’t willing to force this on Toby, though, so she basically agreed to eat the costs of caring for him with no help from Harry.

I had no contact with Toby, so I can only guess at what he’s thinking about all this. It’s tempting to view him as a deadbeat who’s only too happy to sponge off Mom, but I have to think it’s more complicated. Surely this is not what he envisioned for his life, so he must be — at least on some level — grieving over the extent to which he still depends on his parents financially. Florence, and to a lesser extent Harry, are innocent victims here, but it’s entirely possible Toby is a victim too.

A Real Life Divorce Party We Can Talk About

I wrote about divorce parties several years ago, and every few months I get a reporter fishing for me to introduce him or her to a real life divorcing couple willing to tell their story for the benefit of the reporter’s station or paper. Now we have one, in California, of course.

Jeff Becerra and Michelle Mahoney had been married for 24 years when they decided the marriage was over. So they quietly worked out the messy details together and remained friends throughout the process. When they finished, they threw a party — together with one of their two daughters — to celebrate. “We’re not celebrating that we got a divorce,” Jeff told ABC News. “We’re celebrating the way we did it.”

Couples like Jeff and Michelle are still at one end of the spectrum. But in my world of cooperative divorce, there are plenty of couples who remain civil with each other, work with each other, and keep their divorce from becoming a financial or emotional wreck. Good for them. Go make me proud, guys.

 

Hard to Appeal When There’s Nothing in the Record

All the eloquent arguments in the world in an appeal brief will come to nothing if the record from the trial doesn’t show what happened there. We have a good illustration of this in Cameron v Cameron, Case No 2150546 (Ala. Civ. App. November 10, 2016).

The husband and the wife were married only seven years, yet the trial court awarded the wife the husband’s house and ordered the husband to pay the wife significant alimony in gross and periodic alimony. The trial court stated in the record that “As a witness in Court, the Husband was contradictory and evasive and generally not believable. At home he has led his wife and family along as if there would be a reconciliation between them. At Court, and to his friend, he indicates no interest in maintaining the relationship. He has tried to enjoy the benefits his wife can provide at home or in their camper, but he is no longer willing to be bound by any commitment to her.”

One can argue that the property division seems inequitable, but the appeals court really had no way of reviewing it. “[B]ecause the parties failed to introduce evidence of the value of most of the assets, including the marital residence, specifically included in the judgment dividing the marital property or the items of personal property that were awarded to the parties, we are unable to conduct a meaningful review of whether the property division is equitable. Accordingly, we cannot say that the trial court’s judgment dividing the marital property is plainly and palpably wrong.”

The husband also argued that he was unable to pay the alimony the trial court had ordered, but even on appeal he failed to argue that the wife failed to demonstrate a need for alimony. So the appeals court deemed his argument waived. It didn’t help that, according to the appeals court, the husband’s own summary of his expenses provided evidence the husband could indeed afford to make the payments ordered by the trial court.

Finally, the husband argued that the trial judge should have recused himself after saying in chambers to the husband’s attorney, “You might want to speak with your client, and if he still wants a divorce I’m going to hit him hard financially.”

However, the comment doesn’t appear on the record because there was no affidavit about it, and the husband’s attorney made no effort to supplement the record pursuant to Rule 10(f) of the Alabama Rules of Appellate Procedure. “Thus, the husband’s assertions regarding the statement allegedly made by the trial judge cannot be the basis for reversal of the trial court’s denial of the motion to recuse.”

Making Sense of the New Statistics on Divorce

We’ve all heard and read them now, reports that divorce rates have fallen to a 40-year low. Why is it happening, and what does it mean?

I’m no social researcher and certainly no social statistician, but I’m an interested observer who’s been watching this category of research for a couple of decades now. Would you permit me to add some perspective?

First, we have been exaggerating the likelihood of divorce since I can remember. Most of us grew up hearing that half of  marriages in divorce. That was wrong when we were hearing about it, and it’s wrong today. There was never a moment when half of marriages ended in divorce. There were years when the number of divorce couples was roughly half the number of marrying couples, but that was all that could be said. When you looked at the statistics more closely, the divorce rate was never more than 35-40%, and that was the overall divorce rate.

If you looked closely at the divorce rate among couples marrying for the first time, particularly couples who waited a few years before saying I do, and particularly among well-educated couples, the rate was much more encouraging, on the order of 20-25%. Of course, the flip side of that rosy statistic was that for poor young couples who were marrying for the third time, the numbers looked worse.

Second, it’s hard for most of us to glean usable information from the isolated statistics that appear in most news accounts. For example, we all can read in The Telegraph that divorce rates have declined to a 40 year low, but we can’t tell from the account the reason. Are couples staying married longer? Just marrying less? Are they avoiding divorce because it’s too expensive, or are they truly happy together? All this will become clear only as the social scientists scratch below the headlines and parse out the answers.

Until they do, my suggestion is that we carefully limit the conclusions we draw from news accounts to the actual statistics stated, resisting the urge to allow reporters and the sources they interview tell us what those statistics mean or why married couples do what they do.

The Effect of Divorce on a Life Insurance Policy

This case doesn’t change the law, or even amplify it. But it does provide a good primer about Alabama law on a frequent issue. In this case, it’s the effect of divorce on an insurance policy on the life of one spouse for the benefit of the other spouse. The case is Aderholt v McDonald, Case No. 1150878 (Ala. December 16, 2016). Aside from the insurance company itself, which used interpleader to pay the proceeds of the $150,000 life insurance policy in issue into the court and be done with the controversy, the three main parties are the ex-husband (the court calls him Bobby), the ex-wife (the court calls her Sandra), and the ex-husband’s mother (the court calls her Dolores).

Bobby died in 2014, ten years after his divorce from Sandra, nevertheless having named Sandra as the beneficiary of his life insurance policy. Dolores sued for the policy proceeds, and the trial court granted summary judgment for Sandra. Dolores appealed.

Dolores argued that although the trial court had ordered in its judgment that Bobby was to name Sandra as the beneficiary of the policy, the order was limited to 15 years as security for the payments of alimony in gross Bobby was to make to Sandra. Bobby was still delinquent on those payments when he died, but Dolores argued the only portion of the life insurance policy to which Sandra was entitled was the actual amount by which Bobby was delinquent, $28,000.

Because the case was decided by summary judgment, the supreme court applied de novo review, applying the same standard as that used by the trial court. The supreme court relied on Flowers v Flowers, 284 Ala. 230, 237-38, 224 So.2d 590, 596-97 (1969) for the proposition that in the absence of terms indicating a life insurance policy was conditioned on continuance of the marital relationship, the divorce of the insured from the beneficiary will not change the right of the beneficiary to receive the insurance proceeds. Here, as in Flowers, there was no indication of any term or even any intent on the part of the insured to make the payout to the surviving spouse conditioned on continuance of the marriage.

Dolores had argued that there was precedent for disregarding the beneficiary designation when necessary to do equity or to prevent unjust enrichment. Hanner v. Metro Bank (Ala. 2006) (recognizing the vested equitable interest a child had in his deceased father’s life-insurance policy, even though the father had assigned the policy to a bank as collateral for a loan, based on the fact that a divorce judgment had previously ordered the father to name the child the irrevocable beneficiary of such a policy); Zeigler v. Cardona, 830 F.Supp. 1395, 1398 (M.D. Ala. 1993) (finding that the named beneficiary was not entitled to the proceeds of a life-insurance policy when the decedent had previously submitted paperwork to change the beneficiary but no change was made because of a clerical error by the insurer); Frawley v. U.S. Steel Mining Co., 496 So.2d 731, 735-36 (Ala. 1986) (awarding the proceeds of a life-insurance policy to the decedent’s child even though the decedent had never complied with the terms of a child as the beneficiary of his existing life-insurance policy); and Williams v. Williams, 158 So.2d 901 (1963) (holding that the decedent’s children were entitled to the proceeds of a life-insurance policy instead of the named beneficiary when the decedent had been ordered in a judgment of divorce to name his children as the “irrevocable beneficiaries” of that policy, but he had nevertheless failed to do so).

The supreme court distinguished these cases, however, pointing out that in each of them there was uncontested evidence that the complainant should have received the policy proceeds because of either a court order or the obvious intent of the policy holder to make the change. Here, the supreme court said, there was no evidence, uncontested or otherwise, that Bobby intended to remove Sandra as the beneficiary of his policy.

One might speculate that the fact Bobby and Sandra divorced is reason enough to conclude that Bobby would not have wanted Sandra to be the beneficiary of the Alfa policy; however, such a conclusion runs contrary to Flowers and its progeny, which indicate that a divorce alone will have no bearing on a named beneficiary’s right to receive life-insurance proceeds attributable to the death of an ex-spouse. Moreover, speculation does not rise to the level of substantial evidence. Borsage Offshore, LLC v. Compass Bank, 943 So.2d 782, 787 (Ala. 2006).

Lee’s note: As a divorce lawyer who spends most of his time dealing with cooperative spouses, I applaud and affirm the reasoning of Flowers and now Aderholt. Unlike the warring divorce litigants portrayed in most media accounts, my clients often view their STBX or their exspouse with high regard, sometimes even affection. It’s more common than not for my clients to want the best for the person to whom they were once married and called lover. Flowers and Aderholt stand for the proposition that it’s okay for exspouses to care about each other. Bravo.

Alabama Divorce Litigants Simply MUST Watch the Calendar

Here’s a case that just hurts to read. It’s Ex parte Bates, Case No. 2160081 (Ala. Civ. App. December 16, 2016). The wife filed for divorce against her husband, in a filing the husband alleged was the third such petition she had filed in an apparent attempt to judge-shop. When the husband failed to appear, the trial court made an entry of default on April 6, 2016 and set a hearing for May 9, 2016. The husband failed to appear at the hearing on May 9. On May 23, 2016, the trial court entered a judgment that divorced the parties, divided their marital property, and ordered the husband to pay the wife alimony.

On May 11, 2016 (before the trial court’s judgment of divorce), the husband filed a motion to set aside that judgment, in the apparent mistaken impression that the judgment had already been entered. The appeals court notes that, following New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala. 2004), it treats the motion as if it had been filed immediately following the entry of judgment from which it was taken.

The appeals court concludes that the husband’s motion of May 11 was a Rule 55(c) motion. Accordingly, it was denied by operation of law on the 90th day after it was “filed,” or August 22, 2016. Simultaneously, the trial court lost jurisdiction of the case. The trial court purported to enter an order on October 7, 2016 granting the husband’s motion, but by then it was too late. The trial court no longer had jurisdiction. The wife petitioned for a writ of mandamus seeking to have the appeals court direct the trial court to set aside its order of October 7, and that’s how the case ended up in the appeals court.

The appeals court granted the writ. “The October 7, 2016, order was void for want of jurisdiction. Accordingly, we grant the wife’s petition for a writ of mandamus and order that the trial court vacate that order.”

Wow. Just wow. You can’t argue with the legal reasoning, but it’s clear that justice was not done.

Awarding Joint Custody in Alabama Over Mom’s Objections

It’s easy in Alabama to get joint custody if both parents ask for it. In fact, the statute requires it. A recent Alabama Court of Civil Appeals case deals with another set of facts, where one of the parents, in this case Dad, asks for joint custody, and the other, in this case Mom, insists on sole custody. It’s Hyche v Hyche, Case No. 2150774 (Ala. Civ. App. December 2, 2016). The trial court awarded joint custody, and this is Mom’s appeal.

The first principal the appeals court stated is that the review on appeal of a custody determination based on ore tenus evidence is quite limited: “the trial court’s custody judgment is presumed correct and should be reversed only if the judgment is plainly and palpably wrong.” Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ. App. 2003).

The appeals court affirmed the trial court’s judgment on the issue of custody, and in so doing built a roadmap for the right way to make it easier to affirm any other such judgment. The appeals court noted with approval the language of the trial court’s opinion, reciting that the parents stood on equal footing with respect to child custody and describing the factors the court had considered:

The factors that enter into the court’s custody determination include the child’s age and sex and each parent’s ability to provide for the child’s educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala. Civ. App. 1987). Likewise, it is proper for the court to consider the “characteristics of those seeking custody, including age, character, stability, mental and physical health … [and] the interpersonal relationship between each child and each parent.” Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981).’

The appeals court quoted at length from the Alabama joint custody statute, § 30-3-152. After analyzing the arguments made by each parent, the appeals court concluded: “On appeal, the mother essentially argues that the trial court should have interpreted the evidence presented in particular ways or placed more emphasis on certain portions of the evidence. . . . Because “we are ‘charged only with determining whether the evidence was sufficient to support the trial court’s judgment’ and not with determining whether there was a sufficient basis for a different judgment than that entered by the trial court, we conclude that the trial court acted within its discretion in awarding joint legal and physical custody of the child and that its judgment was not plainly and palpably wrong such that it warrants reversal. Henning v. Henning, 26 So.3d 450, 455 (Ala. Civ. App. 2009) (quoting Ex parte Ederer, 900 So.2d 424, 426 (Ala. 2004)).”

Deviating from Child Support Guidelines

Alabama’s child support guidelines cover incomes of up to $20,000 per month, which means they cover the vast majority of divorcing couples. Every now and then, though, we get a sense of how the courts will treat one of those rare cases in which the income of the parties exceed that figure. The latest example is Thomas v Shepard, Case No. 2150566, Alabama Ct of Civil Appeals (December 9, 2016).

The husband was a professional writer who did not earn a salary. On his CS-41 child support income disclosure form, he stated his monthly gross income for 2011-2015 to be $5,839.03. Testimony in the trial, however, revealed that the husband received checks for $20,000 “every so often.” And the husband had received a check for one of the books he had written of about $700,000. The testimony also showed he had regularly received gifts from his father.

The trial court ordered the husband to pay $1500 per month child support for each of two sons.

The husband argued that his assets were illiquid and that he was unable to pay $3,000 per month child support. The appeals court said the trial court could have discounted this concern because the husband had easily withdrawn $50,000 from one of his many bank accounts to cover some of his expenses while the divorce was pending.

The appeals court said the issue of income for purposes of child support is a matter to be determined by the trier of fact, citing Hood v Hood, 23 So.3rd 1160, 1165 (Ala. Civ. App. 2009). It also said the court is to consider the resources of the parents, not simply their incomes, in making a determination of child support citing Ex parte St. Clair Cty. Dep’t of Human Res., 612 So.2d 482 (Ala. 1993). “The record clearly supports the conclusion that the parties had access to substantial assets . . . In short, we cannot conclude that the trial court’s child-support award was so unsupported by the evidence that it was clearly erroneous or an abuse of discretion, and we cannot reverse its judgment for that reason.”d

Good News About US Divorce Rate

Regular readers of Divorceinfo.com know I’m fond of railing about the fallacy of that “half of marriage end in divorce” crap the mainstream media keep tossing around. Here’s another confirmation of it, this time – get this – in the mainstream media.

From the Washington Post last week:

[A statistical researcher] explains that this myth simply stems from bad math – dividing the divorce rate by the marriage rate in a given year. In 2014, there were 8.7 divorces and 17 marriages per 1,000 women in the United States, he says, citing figures from the American Community Survey. If you divide the first number by the second number, you get 51 percent.

The problem is that the people who are marrying each other in 2014 aren’t the same as the people who are divorcing each other in 2014. If you look at the data over a longer period of time, it becomes clear that the divorce rate is lower than half.

In fact, the rate has been declining for several years and is on track to reach a low of 33% within a few years if trends continue. The researcher, Nathan Yau at Flowing Data, charted divorce rates for different groups within the US. His findings:

  • The divorce rate is slightly higher for men than for women, presumably because men are more likely to be in subsequent marriages
  • The divorce rate is lower for those with a college degree than for those without one
  • The divorce rate varies dramatically by race, from a low of 18% for Asian women to a high of 45% for Native American women. The divorce rate among Hispanic women is 27%, it’s 38% among White women, and it’s 42% among Black women.

A Conversation About Debts and Divorce

I just finished a cool experience with the folks at LoanNow.com, who approached me about dealing with debts in divorce. At their request, I answered several questions they posed in a question-and-answer format. Never actually talked to anybody, which made it kind of weird, but I guess that’s the way young people process information these days, and old men like me will just need to get used to it.

Here’s the interview. If you’ve spent much time with me here on Divorceinfo.com, nothing in it will be surprising, but I was delighted to be asked to be part of the LoanNow Expert Interview Program. And they even spelled my name right.