Okay, law students, gather ’round. This is how an appeals court uses dicta. For the unitiated, “dicta” is a term for the comments or observations of an appellate court that are not directly relevant to the case. They have no direct precedential value but may become “tea leaves” that provide hints of the court’s thinking. Check out Trousdale v. Tubbs, Case No. 2040744 (Ala. Civ. App. November 10, 2005).
Category: Alabama
Information about divorce and family law in Alabama (where I practice law)
A Win for Ore Tenus
Regular readers are familiar with the principle of ore tenus evidence, the idea that when a trial court has the opportunity to look witnesses in the eye and hear the inflection in their voice, its determination of the facts in a case will be presumed correct unless that determination is shown to be “plainly and palpably erroneous or manifestly unjust.” Regular readers are also familiar with my observation from time to time that appellate courts tend to follow it only when it serves their purposes. Now a ruling from the Alabama Supreme Court strikes a blow for the validity of ore tenus evidence.
Revisiting Default Judgments
You may remember reading here about the case of Sumlin v. Sumlin and the factors governing when a trial court should grant a motion to set aside a default judgment. Now the Alabama Court of Civil Appeals has withdrawn its original opinion in that case and changed its ruling.
Child Support with No CS Forms
Will an Alabama appellate court ever allow a child support award to stand that’s not supported by the appropriate Child Support Forms? The Alabama Court of Civil Appeals has answered that question with a quiet yes on a few occasions. Now, however, it has found the case with no child support forms that it says merits a reversal.
Woman Campaigning for Court of Appeals
Cullman County District Court Judge Terri Willingham Thomas has announced her candidacy for a seat on the Alabama Court of Civil Appeals. Willingham is a republican who says she will campaign against judicial activism. Here’s a story about it from the Associated Press.
The Divorce That Wouldn’t Die
This is the dreary case of Mr. and Mrs. Smith, doomed to rehash (seemingly) forever the tawdry issues of their divorce. You can read all about it, but probably won’t want to, at Smith v. Smith, Case No. 2031182 (Ala. Civ. App. October 28, 2005). If you’re into such things, I’ll let you revel in the minutia, involving four trips to the trial court (with another yet to come) and three trips to the court of appeals. For these purposes, I’ll simply summarize the key principles.
Grandparent Visitation – Pre-Amendment
In a case of perhaps only historical interest, the Alabama Court of Civil Appeals has reiterated its finding that grandparents seeking visitation under the OLD grandparent visitation statute must demonstrate that the child would suffer substantial harm if deprived of time with the grandparents. Ruling in the case of C.D. P. v. D.P. and D.S.P., Case No. 2040217 (Ala. Civ. App. October 28, 2005), the Appeals Court reversed the trial court’s order of visitation for grandparents.
Bringing Down Divorce in Alabama
Huntsville Times columnist John Ehinger is saying what I said awhile ago. Here’s his column on what Alabama First Lady Patsy Riley can do if she wants to reduce Alabama’s high divorce rate. You’ll remember that I made similar observations here a couple of weeks ago.
New Shelby County Circuit Court Judge
Gov. Riley has appointed H.L. “Sonny” Conwill as Shelby County Circuit Judge to replace Judge Al Crowson, who retired last week. Here’s a summary of the appointment from The Birmingham News.
Conwill’s appointment becomes effective immediately. In a prepared statement, Gov. Riley said, “Judge Conwill has earned an excellent reputation during his legal career and his roots in Shelby county run deep. I have the fullest confidence that he will serve the people with great distinction in this new position and rule with fairness, impartiality and a good dose of common sense.”
Grand Jury Blasts DHR
A Bessemer Cutoff grand jury called the Bessemer DHR office’s handling of a child abuse case “negligent, reckless and reprehensible.” Here’s the summary from The Birmingham News that contains the story. The grand jury said the only reason it didn’t issue indictments was that DHR’s record-keeping was so sloppy that no one could tell which DHR employee was responsible for the transgressions.
When You Can Object to Improper Venue
Interesting post this morning on Alabama Divorce Questions from a soldier who has already answered and begun the process of discovery for her divorce and now wants to change venue to another county. She’s probably out of luck.
Service Means Service. Really.
A party initiating a petition to modify a court decree must serve the other party, and sending a copy to the party’s attorney isn’t enough. That’s the holding of the Alabama Court of Civil Appeals in M.M. v. B.L. and M.L., Case No. 2040731 (Ala. Civ. App. October 21, 2005). The Appeals Court held that any action taken by the juvenile court without proper service of process was void.
State Retirement Plans in Alabama Divorces
Alabama state retirement plans are retirement plans subject to division in divorce, as the result of a ruling of the Alabama Court of Civil Appeals in Killingsworth v. Killingsworth, Case No. 2030767 (Ala. Civ. App. October 14, 2005). That may not sound much of a revelation to you, but it’s big news to the many trial courts in Alabama that have attempted to treat state retirement plans differently from other retirement plans.
Continue reading “State Retirement Plans in Alabama Divorces”
If You REALLY Want to Decrease Divorce
Alabama’s first lady Patsy Riley wants to persuade Alabamians who are already married to renew their wedding vows to reduce Alabama’s sky-high divorce rate. Here’s a nice writeup about it from the Columbus Ledger-Enquirer. What I know about her initiatives to improve Alabama’s general wellness and to prepare preschoolers better to succeed as students makes me respect her caring and motivation. I have to applaud her willingness to go public about the problem of divorce in Alabama and to propose a solution. So I take her proposal at face value, an earnest attempt to improve Alabama’s vexing record on failed marriages.
Child Support Roundup in Marshall County
Police have arrested 12 parents in Marshall County who were significantly behind in their child support payments. Here’s a description from Channel 48 in Huntsville. The arrests come after public announcements and warnings. Marshall County has collected about $20,000 in unpaid child support and is working to collect more.
When Can I File for Divorce in Alabama?
Thanks to Jefferson County Circuit Judge Gary Pate for clarifying this at the Family Law Section / ABI/CLE seminar for family law practitioners this weekend. There are four possible scenarios for people who are considering filing divorce in Alabama. Let’s take them one at a time:
Registering a Child Support Judgment in Alabama
The Alabama Court of Civil Appeals has approved the registration of another state’s child support judgment in Alabama and provided guidance about how the courts should interpret it, in Mollohan v. Jelley, Case No. 2030282 (Ala. Civ. App. September 30, 2005).
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Should You Change Your Name When You Divorce?
Nearly every woman going through divorce, at least nearly every woman who has changed her name at marriage to that of her husband, considers when she divorces whether she should change her name. It’s not unusual for her to look at me as we prepare the papers and ask me what I think. The main thought I have about it is that I’m a lousy person to help decide.
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Children of Single Parents at Disadvantage
The conservative think-tank Alabama Policy Institute has studied single parent families and doesn’t like what it sees. In its just-released study Family Matters – Family Structure and Child Outcomes, API finds that “children in non-intact families are at an educational and social disadvantage comjpared to children in traditional families.”
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Retroactive Increase in Child Support
What happens when a court order of child support is based on a mistake, and you realize that mistake several years later? Do you adjust the child support retroactively? The Alabama Court of Civil Appeals confronted this question in Plott v. Deason, Case No. 2040001 (Ala. Civ. App. September 9, 2005). The answer is that the trial court has discretion to do so upon a proper filing but only if that filing occurs within the deadline set by Alabama Rules of Civil Procedure.