Category: Alabama

This decision is bad law and a trap for the unwary. Wallace v. Wallace, Case No. 2030855 (Ala. Civ. App. March 11, 2005).

Husband and wife had agreed in their divorce settlement to sell the house. Pending the sale of the house, the wife would remain in the house and the husband was to pay 1/2 the primary and home equity line mortgage payments. After the sale of the house, the husband was to pay the wife a total of $8,750 in monthly payments. The anticipated sale did not occur for 16 months, and then only because the husband listed the house with a real estate agent.

Continue reading “Alabama Divorce – Accord and Satisfacti0n”

The Court of Appeals has reversed the juvenile court in a child custody case, finding its weighing of the evidence “plainly and palpably wrong.” In the case of G.H. v. K.G. and Y.G., Case No. 2031100 Ala. Civ. App. March 11, 2005), the facts are poignant. Mom and Dad never married. Mom is hooked on crystal meth and apparently out of the picture. Child is now 16, sexually active, drinking, smoking, and has untreated bipolar disorder. The custody contest is between Dad and Mom’s parents.

Continue reading “Alabama Ore Tenus Rule — Yeah, Right”

This issue should be settled by now. A guardian ad litem (a lawyer appointed to represent a person not capable of representing himself, typically a child) has the same capability to represent his or her client as any other attorney. It follows that the guardian ad litem (GAL) is subject to all the constraints that would govern any other advocate before the court, specifically in this case, the prohibition against ex parte communications with the judge.

Continue reading “GAL Can’t Meet Ex Parte with Judge”

I just got a call from a client whose spouse has talked to “some lawyer” who assured her (the client’s wife) that she could get a portion of his policeman’s retirement plan by using a QDRO. Let’s get this straight: if you’re discussing divorce in Alabama and you or your spouse has an RSA retirement plan, the kind you get when you’re a teacher, a policeman, or a state employee, that retirement plan will not respond to a Qualified Domestic Relations Order (QDRO). You can draw it up, and you can get the judge to sign it, and you can send it to Montgomery with a nice cover letter on 60# bond, and David Bronner will just laugh at it.

Continue reading “Alabama State Retirement Plans in Divorce”

The Alabama Court of Civil Appeals has dismissed an appeal from the mother of children whose custody the trial court changed. The dismissal of the appeal came in the case of Sleasman v. Sleasman, Case No. 2030412 (Ala. Civ. App. February 25, 2005), because the trial court had reserved the issue of visitation.

Continue reading “Can’t Appeal from a Nonfinal Judgment”

A guest on Alabama Divorce Questions asked me today whether he can force his wife to share with him the burden of saving for his children’s college education. My answer is that most judges don’t do it this way.

Most judges in Alabama believe, rightly or wrongly, that it’s appropriate to wait until the child is nearly of college age and make the judgment at that time whether the child has the aptitude and the desire to attend college. This means it’s just about impossible after divorce for one parent to force the other to save for college.

Here’s another of those cases you could hear about on the 6:00 news. Unmarried parents conceive child in Georgia. Mom’s mother runs Dad off, so he’s not there when the baby is born. Mom consents to adoption by parents in Madison County, Alabama. When Dad finds out about the adoption, he objects. The trial court in Madison County denies Dad’s contest of the adoption on the grounds that he didn’t maintain a significant relationship with the minor child and therefore that he impliedly consented to the adoption. The Court of Appeals reversed, in the case of K.W.J. v. J.W.B. and K.E.M.B., Case No. 2030805 (Ala. Civ. App. February 18, 2005).

Continue reading “Adoption Upset by Bio-Dad”

Read that settlement agreement carefully before you sign it. The Alabama Court of Civil Appeals says it’s binding on you, even if you later regret it. The Court, ruling in the case of Wilcoxen v. Wilcoxen, Case No. 2030834 (Ala. Civ. App. February 18, 2005), said that

agreements reached in divorce actions are as binding on the parties as any other contract. Continue reading “Divorce Settlement Agreement is Binding”

We have our first appellate case now interpreting the Alabama Parent Child Relationship Protection Act, and it permits the relocation to occur. In Clements v. Clements, Case No. 2030768 (Ala. Civ. App. February 11, 2005), the Appeals Court affirmed the judgment of the trial court in Autauga County. The trial court’s opinion hadn’t expressly said so, but the Appeals Court deemed the trial court to have found that the relocating mother had succeeded in overcoming the presumption against relocation. This therefore shifted the burden to the non-relocating father, who sought a transfer of custody from the mother to himself.
Continue reading “Ruling on Alabama Relocation Statute”

The Alabama Court of Civil Appeals has provided a textbook illustration applying the Alabama statute dealing with venue, in Hodge v. Steinwinder, Case No. 2031060 (Ala. Civ. App. February 4, 2005). The parties had been divorced in Coffee County in 1993. After the divorce, the mother and children moved twice, first to Montgomery County in March 1998 and then to Jefferson County in August 2001. The mother filed to reevaluate child support and to enforce a child support arrearage in April 2001. The Montgomery County Circuit Court entered judgment awarding the Mother child support arrearage and more than doubling the amount of monthly child support.
Continue reading “Venue for Post-Divorce Litigation”

The Alabama Court of Civil Appeals has ordered an equal time parenting arrangement to stay in place, overruling the trial court’s award of sole custody. The case is Watters v. Watters, Case No. 2030530, (Ala. Civ. App. Feb. 4, 2005).

The Court of Appeals reversed and remanded the ruling from Mobile Circuit Court that a previously agreed upon and court ordered plan for equal time parenting should be changed to sole custody for the mother because of a material change in circumstances. The Court of Appeals rejected the trial court’s finding of a material change in circumstances and made its own finding that no such change had occurred.

In its ruling, the Court of Appeals mentioned evidence from the trial that the child behaved better during those times he was with his father, that the child was tardy less for school when his father brought him, and that the father was more involved in PTA and other school-related activities. The Court of Appeals also mentioned evidence that the father had initiated and participated more actively in speech therapy when the child developed a problem with his speaking.

The Court of Appeals made no mention of the ore tenus rule (which holds that the when the trial court hears testimony in a nonjury case, its judgement based on that evidence is presumed correct absent a showing that it is plainly and palpably wrong or manifestly unjust).

Yes, Alabama is in a fiscal crisis, and our teachers are outrunning their students on the way to the exits. Yes, our prisons are so overcrowded we’re likely to face ruinous fines if we don’t take immediate action. And yes, our state has been found in a recent study to be among the two worst administered in the nation. So our legislature is in session now and we’re going to get to work, right? You bet. Let’s ban gay marriage. Oh brother. In a state where it’s already illegal. The only reason for doing this is to perpetuate hate and intolerance and to pander to (too many) ignorant voters.

Okay, stepping down off my soapbox now.

There was a move afoot in the summer of 2004 to revise the Alabama Child Support Guidelines, which have remained unchanged since (I think) the late 1980’s. It must have petered out, though. When I talked with Noah Funderburg this afternoon (Noah keeps up with this stuff better than anybody I know), he said he hadn’t heard anything recently about the revision.

If you use Internet Explorer (which I use only when absolutely necessary), you can figure child support according to the Alabama Child Support Guidelines using the interactive calculator on my web site. Just plug in the numbers and it will calculate child support according to Rule 32.

In my world, the child support guidelines seem reasonably accurate and fair. There are plenty of custodial parents who think they’re too stingy and plenty of noncustodial parents who think they’re too high (and even some vice versa), but most of my clients and their spouses tend to view them as pretty reasonable.

It would be a welcome change among my clients to extend the incomes covered by the guidelines. As configured today, they apply only in cases where the sum of Mom’s and Dad’s incomes is $120,000 or less. That may have covered the vast majority of Alabama’s divorced parents in the 1980’s, but there are many parents today whose combined incomes exceed it.

When the Montgomery Advertiser conducted a roundtable discussion of issues facing the Alabama legislature, one of the participants complained that the courts are exiling fathers from their children. Here’s the article. Look about 4/5 of the way down. This participant, a noncustodial parent himself, said that judges “have free reign to disregard [the rights of noncustodial parents] according to their bias or whim.”

I don’t have the same experience dealing with child custody laws this fellow does, so I won’t try to disagree with his perception. I can say that in my practice I have watched many judges deal with hundreds of vexing cases where both parents seem worthy (and too many where NEITHER parent seemed worthy). I have been impressed with the wisdom they show in case after case, all while a crushing backlog of other cases clamors for their attention.

I’m confident there are bad judges out there; I’ve even appeared before one or two of them. By and large, though, the judges I see are doing a fine job under the toughest of circumstances. I know I surely wouldn’t want to have to make the kinds of decisions we require them to make.