Category: Alabama

Trial judges are usually anxious to get divorce cases off their dockets. Not so the judge in Dale County, and it made the court’s ruling impossible to appeal – at least for now. This is the case of Hubbard v. Hubbard, Case No. 2040481 (Ala Civ. App. January 27, 2006).

Continue reading “Trial Court’s Retention of Jurisdiction”

The Alabama legislature acted 70 years ago to abolish the claim of alienation of affection, in which the spouse of a person sues the third party who seduced that person. You can find the statute (at least as it refers to a claim for seduction of an adult woman) at Ala. Code § 6-5-331, which says this: “There shall be no civil claims for alienation of affections, criminal conversation, or seduction of any female person of the age of 19 years or over.” But what happens if the third party is in a position of trust with reference to both the man and the woman? Is there a higher duty imposed on this third party that transcends § 6-5-331? The Alabama Supreme Court’s answer in Bailey v. Faulkner, Case No. 1040880 (Ala. January 6, 2006) is “uh, no.”

You’d have to search to find facts more egregious than these. Floyd Bailey was the pastor of Dalraida Church of Christ in Montgomery, and the Faulkners were church members. In 1999 the church hired Ms. Faulkner to serve as church secretary. Less than a year later, when Bailey realized the Faulkners were in marriage counseling with a licensed counselor, Bailey persuaded them to discontinue their counseling and to allow Bailey to help them, promising them that he would spend more time with them than their private counselor and guaranteeing them that “he could fix [their] marriage.” THAT SAME MONTH, Bailey and Ms. Faulkner began a consensual, sexual relationship that lasted several months.

While counseling with the couple AND WHILE HAVING SEX WITH THE WIFE, Bailey learned that Mr. Faulkner had an opportunity to move to Baldwin Courty. Bailey urged Mr. Faulkner to turn down the move, saying it “could break [the Faulkners’] marriage.” Mr. Faulkner took Bailey’s advice and stayed put in Montgomery. Mr. Faulkner eventually discovered the affair and confronted his wife and Bailey. Bailey at first denied a sexual relationship with Ms. Faulkner, but he eventually admitted it and resigned from the church. The Faulkners divorced a year later.

At this point, you may be thinking what an evil person this wife must have been, but I regard her as a victim. If you don’t, please stop and read this.

Okay, that’s the human part; now here’s the legal part. Faulkner knew he couldn’t sue Bailey for alienation of affection, so he sued instead for negligent counseling. Bailey moved the trial court for a judgment as a matter of law, on the grounds that Faulkner’s complaint was simply a thinly-disguised claim for alienation of affection. The trial court denied the motion. The jury returned a (large) verdict for Faulkner, and Bailey appealed.

The Alabama Supreme Court reversed and remanded, instructing the trial court to enter a judgment in favor of Bailey. Here is some of what the supreme court said:

Since the abolition in Alabama of the heart-balm torts, this Court has refused to recognize “any claim for damages against a third party, no matter how denominated, that is based on allegations of interference with the marriage relationship.” D.D., 600 So. 2d at 223 n.5 (emphasis added). For example, in D.D., this Court affirmed a summary judgment for the paramour and against the husband in his action against his wife’s paramour for interfering with, and causing the dissolution of, his marriage. 600 So. 2d at 221.

. . . it is immaterial whether Faulkner purports to allege negligent ministerial counseling, i.e., clergy malpractice, as Bailey insists, or negligent marital counseling, as Faulkner characterizes his claim. Neither theory is valid under the facts of this case.

This is so, because, despite the allegation in the complaint that Bailey “negligently [and/or wantonly]” counseled “[Faulkner] and his wife … concerning their marriage,” Faulkner’s actual theory of the case is that Bailey’s illicit relationship with [Ms. Faulkner] destroyed his marriage. All the damages Faulkner seeks flow, not from alleged negligence or wantonness, but from Bailey’s intentional conduct.

. . . In short, this case is not about negligence or wantonness — it is about intentional conduct. The only claims stated by the allegations in this case assert the amatory torts abolished by § 6-5-331. Damages sought here are the species of damages recoverable for those torts.

In his special concurrence, joined by Nabers and Stuart, Justice See said that the appropriate place to seek a remedy for this kind of behavior is the legislature, not the courts.

In his special concurrence, Lyons was more outspoken: “To be quite blunt, in this case I am holding my nose. The very idea that a marriage counselor who owes a duty to a husband and wife can escape liability for the consequences of his extramarital affair with a party to the marriage is, I respectfully submit, absolutely horrid public policy.”

Lyons called for specific legislative action:

If I were a member of the Alabama Legislature, I would immediately amend § 6-5-331 so as to provide that nothing in the statute should preclude a civil cause of action when a person who has assumed a duty toward a husband and wife with respect to the status of their marital relationship thereafter has sexual contact, as defined in § 13A-6-60(3), Ala. Code 1975, with one of the parties to the marriage during the existence of the marital relationship. I would further provide that the act would apply to all civil actions commenced after it was signed into law and that any such action would be subject to a six-year statute of limitations, running from the latter of the last sexual contact during the marriage or the date of the divorce, so that Faulkner would have his day in court. But I am not a member of the legislature, and I must concur in reversing the judgment in favor of Faulkner. (footnotes omitted)

You may remember the unsatisfactory way the Alabama Court of Civil Appeals mumbled its way through the McMorrough case; you can read about it here and here. The appeals court revisited the issue of the required burden of proof for contempt in Sexton v. Sexton, Case No. 2040910 (Ala. Civ. App. January 6, 2006). The facts were less challenging than those in McMorrough, and so is the appeals court’s decision.

Continue reading “Contempt Burden of Proof Revisited”

What determines whether property owned by a party to a divorce is marital property (available for division with the other spouse) or separate property (not available for division)? The Alabama Court of Civil Appeals shed some light on the question in Kaufman v Kaufman, Case No. 2040100 and 2040276 (Ala. Civ. App. December 30, 2005).

Continue reading “Marital and Separate Property”

You may remember reading here during the summer that Alabama Chief Justice Drayton Nabers had stripped Talladega County Juvenile Court Judge Tommy Dobson of his judicial authority. Now comes the next step in this drama, as the Alabama Judicial Inquiry Commission has filed a complaint against Dobson with the Alabama Court of the Judiciary. Here’s an article about the charges from the Talladega Daily Home.

Continue reading “More From Talladega County”

Every now and then, we read a case that reminds us how fortunate we are that we are not judges, that we are not called on to make the delicate, excruciating calls that judges must about the fine china of people’s lives. S.P. v. E.T., Case No. 2040044 (Ala. Civ. App. December 30, 2005) is such a case, pitting a child’s foster mother against the child’s aunt and uncle. The appeals court said this is the sixth time this case has been before the court.

Continue reading “The Tangled Web of a Dependency Case”

Too much! Too much! That’s the word from the Alabama Court of Civil Appeals about the award of property division and alimony in Carter v. Carter, Case No. 2031104 (Ala. Civ. App. December 30, 2005). The parties had married more than 25 years when they separated. The trial court heard evidence from which it “could have concluded that the husband’s adultery, gambling, excessive spending, and “mean” treatment of the wife contributed to the breakup of the marriage.”

Continue reading “Even Nasty, Overweight, Free-Spending, Adulterous Gamblers Deserve Some Happiness”

Stop and say a prayer for the Guys, and in particular for their children. Having your parents go through divorce is bad enough; now add to that the indignity of having all your parents’ dirty laundry aired in public over more than four years, at the conclusion of which there’s real doubt whether either your Mom or your Dad is fit to be a parent.

Continue reading “Retroactive Child Support; Criminal Contempt”

The Alabama Court of Civil Appeals has reversed a trial court’s contempt finding because the provision violated was ambiguous. The case of Nave v. Nave, Case No. 2040252 (Ala. Civ. App. December 30, 2005) was a post-divorce case. The Madison County Circuit Court had denied the father’s request for custody of the two younger children and for retroactive child support for the older child. The trial court also ordered him to pay $10,873.68 for past-due child support and unpaid college expenses for the mother. The trial court held the father in contempt for failing to pay child support and college expenses. The father appealed.

Continue reading “Contempt – No Ambiguity Allowed”

What happens when Alabama courts confront a child support judgment from another state? Which state’s law applies to what? The Alabama Court of Civil Appeals provided some answers in C.K. v. J.M.S., Case No. 2040206 (Ala. Civ. App. December 16, 2005). In a nutshell, the issuing state’s law governs to the extent the judgment is nonmodifiable, and Alabama’s law governs to the extent it is modifiable.

Continue reading “Applying Alabama Law To Foreign Child Judgments”

The Alabama Court of Civil Appeals says there’s no requirement that grandparents who want to visit their grandchildren must show harm to the grandchildren if the visitation is denied. Ruling in Dodd v Burleson, Case No. 2040003 (Ala. Civ. App. December 15, 2005), the appeals court quoted liberally and approvingly from the Kentucky Court of Appeals.

Continue reading “Grandparent Visitation – Harm Not Required”

What happens when a divorce decree orders that one of the parties will receive one-half of a retirement plan, and then the value of the retirement plan declines dramatically before the transfer? The Alabama Court of Civil Appeals wrestled with this question in Buchanan v. Buchanan, Case No. 2040226 (Ala. Civ. App. December 9, 2005).

Continue reading “Retirement Plans and Market Changes”

Pity poor Mr. Gladden, doomed to litigate without end over the alimony he should have paid his ex-wife. And pity even more his ex-wife Mrs. Gladden, who is seemingly locked in with him in their constant trips to the courthouse. You can read all about their lengthy struggle at Gladden v. Gladden, Case No. 2040467 (Ala. Civ. App. December 9, 2005.

Continue reading “Criminal Contempt and Attorney’s Fees”

By now you’re probably familiar with the Alabama statute governing division of retirement plans in divorce, Ala. Code § 30-2-51(b). Is there ever a time when a retirement plan should be divided not under § 30-2-51(b) but under the general provision for marital property division, § 30-2-51(a)? In Smith v. Smith, Case No. 2040310 (Ala. Civ. App. December 9, 2005), the Alabama Court of Civil Appeals says no.

Continue reading “Awarding Retirement Plans in Alabama Divorce”

Every divorce lawyer knows that Retirement Systems of Alabama won’t respond to a Qualified Domestic Relations Order. It’s a stupid rule, of course, fueled more by the crass selfishness of legislators (all of whom are participants in the state retirement system) than by any possible logic or reason. But it is the law in Alabama, and the only way it’s going to change is for the citizens to shame the legislature into it.

Continue reading “More Alabama State Retirement Plan Mischief”

In a case that predates Alabama’s statute on the division of retirement plans (Ala. Code § 30-2-51(b)), the Alabama Court of Civil Appeals has affirmed the trial court’s analysis of the division of a Federal Employees’ Retirement System (FERS) plan in divorce. In Harmand v. Harmand, Case No. 2040365 (Ala. Civ. App. November 23, 2005), the Appeals Court rejected the husband’s argument that federal law preempted state law, his argument that it was impermissable to make him the payor of benefits to the wife, and that it was impermissable to require that he make payments without discounting them for taxes incurred.

Continue reading “Dividing FERS Retirement Plans”

When parents (or those who want to be parents) are in different states, which state has jurisdiction to decide custody? In J.B. v. F.B. and A.B., Case No. 2040448 (Ala. Civ. App. November 18, 2005), the Alabama Court of Civil Appeals has reminded us that the rules are actually pretty simple.

Continue reading “Applying UCCJEA To Let a Case Go”

Nice report this morning in the Talladega Daily Home about The Children’s Place in Pell City. It’s designed to provide shelter and a sense of home to kids who are physically and sexually abused.

Continue reading “A Haven for Abused Children”

You may remember the McMorrough case, in which the Alabama Court of Civil Appeals changed the law on the standard of proof in contempt cases without admitting it was doing so. Now the Alabama Supreme Court has denied the writ of certiorari, effectively leaving litigants and their lawyers in the dark about what the new standard is. The Court denied the writ without opinion in Ex parte McMorrough, Case No. 1041848 (Ala. November 18, 2005). The only reason to check the case would be to read the dissent from Justice Parker, joined by Justices Nabers, See, and Woodall. It reiterates many of the points Judge Crawley made in his dissent in the Appeals Court case.

The Alabama Supreme Court has quashed a writ of certiorari in a post-divorce child custody. In so doing, it has provided another opportunity for Justice Tom Parker to write another of his lengthy religious dissents.

Continue reading “Another Sermonic Dissent from Justice Parker”