Fox v. Arnold

127 So. 3d 417, 2012 WL 3242101, 2012 Ala. Civ. App. LEXIS 212
CourtCourt of Civil Appeals of Alabama
DecidedAugust 10, 2012
Docket2110483
StatusPublished
Cited by5 cases

This text of 127 So. 3d 417 (Fox v. Arnold) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fox v. Arnold, 127 So. 3d 417, 2012 WL 3242101, 2012 Ala. Civ. App. LEXIS 212 (Ala. Ct. App. 2012).

Opinion

MOORE, Judge.

Ryann E. Fox (“the mother”) appeals from a custody-modification judgment of the Calhoun Circuit Court that awarded Jeremy S. Arnold (“the father”) primary physical custody of the parties’ children, J.A.A., who was born on February 14, 2003, and A.A., who was born on August 18, 2004 (sometimes hereinafter referred to collectively as “the children”). We dismiss the mother’s appeal as untimely filed.

Background

On August 28, 2007, the father filed a contempt petition against the mother in the Shelby Circuit Court. The father asserted that a judgment of divorce dissolving his marriage to the mother had been entered by the Shelby Circuit Court on August 13, 2006, and had been amended by that court on February 15, 2007. The father asserted that, as amended, the divorce judgment awarded him supervised visitation with the children, which visitation was to be supervised by the children’s maternal grandparents, and ordered that his visitation with the children was to progress to overnight unsupervised visitation as of August 1, 2007. The father further asserted that he had complied with all the requirements set forth in the divorce judgment, as modified, but that the mother had refused to allow him the visitation to which he was entitled.

The mother answered the father’s contempt petition, denying his allegations and asserting that, in the divorce judgment, as amended, she had been awarded sole custody of the children, that the father had been ordered to pay child support, and that, as a result of the father’s improper conduct, the Shelby Circuit Court had required the father’s visitation with the children to be supervised. The mother further asserted that the father had failed to comply with the conditions set forth in the divorce judgment, as amended, in order for him to obtain unsupervised visitation. The mother also counterclaimed for a child-support modification and requested that, because both she and the father were residing in Calhoun County, the cause be transferred to the Calhoun Circuit Court. The Shelby Circuit Court transferred the cause to the Calhoun Circuit Court (“the trial court”) on February 7, 2008.

On July 24, 2008, the father amended his pleadings to request a modification of custody and to request that the mother be held in contempt for failing to comply with the Alabama Parent-Child Relationship Protection Act, Ala.Code 1975, § 30-3-160 et seq.

In September 2008, the trial court entered a pendente lite order, approving the parties’ stipulated agreement regarding the father’s visitation pending a final hearing. In that order, the trial court noted that, although the father continued to object to supervised visitation, to the mother’s relocation to Georgia with the children, and to her continued custody of the children, the parties had agreed, among other things, that the father’s wife would supervise his visitation with the children pending a final hearing.

On August 24, 2009, the mother moved the trial court to suspend the father’s visitation, raising concerns of improper supervision during the children’s visits with the father and asserting that, based on the children’s reports, the children’s counselor [419]*419had filed a report identifying the children as “at risk.”

Also on August 24, 2009, the father filed another contempt petition, asserting that he had had no contact with the children since August 2, 2009. On September 1, 2009, the trial court scheduled a hearing on the father’s August 24 contempt petition, but, on that same date, the trial court granted the mother’s motion to suspend the father’s visitation.

On September 8, 2009, the father responded to the mother’s motion to suspend his visitation. He challenged the exhibits the mother had submitted in support of her allegations as hearsay, incomplete, and unauthenticated.

On November 4, 2009, the father objected to the mother’s proposed plans to relocate to Indiana and requested an ex parte temporary restraining order. On January 21, 2010, the mother responded that she had remarried and that she had provided the father proper notice of her intent to relocate to Indiana and that the trial court had granted her permission to relocate to Indiana when the parties had last appeared in the court’s chambers.1

Following ore tenus proceedings on February 18 and March 5, 2010, the trial court entered an “interim order” on March 5, 2010. In that interim order, the trial court, among other things, allowed the father unsupervised visitation with the children. On March 16, 2010, the mother provided the trial court with notice of her compliance with certain provisions of the interim order. On March 18, 2010, the mother filed a motion to alter, amend, or vacate the interim order; the trial court granted the mother’s motion on March 29, 2010, by amending the date the father was to pick the children up for summer visitation.

On May 27, 2010, the father filed a motion seeking a finding of contempt against the mother for her failure to comply with the provisions of the March 5, 2010, interim order. The mother denied those allegations.

On November 19, 2010, the father moved the trial court for an ex parte temporary custody order based upon allegations made in postdivorce litigation occurring in Indiana involving the mother’s new husband. Following ore tenus proceedings on December 20, 2010, the trial court entered an order on December 21, 2010, specifying a holiday visitation schedule for the father and stating that it was taking the father’s motion for an ex parte temporary custody order under advisement.

On December 30, 2010, the trial court entered an “Order of Modification” based upon the evidence it had received at the ore tenus hearings held in February, March, and December 2010. In that judgment, the trial court found that the mother’s testimony at the February 2010 hearing had, in large part, been untruthful; that the mother had shown no interest in working with the father for the benefit of the children; that the father was a fit and proper person to have custody of the children; and that a material change in circumstances had occurred and that the positive good brought about by the change in custody would outweigh any inherent disruption in the children’s lives resulting from the custody modification. The trial court, among other things, awarded the father custody of the children, awarded the mother visitation, ordered the mother to pay child support in the amount of $195 per month, awarded the father an attorney fee in the amount of $2,500, and, to the [420]*420extent there was additional relief requested in the parties’ pleadings that the trial court had not addressed, it denied such relief.

On January 25, 2011, the father filed an “Ex Parte Motion to Suspend All Contact Between [the Mother] and the Minor Children, Motion for Rule Nisi, and Motion to Alter, Amend, or Vacate.”2 In that motion, the father asserted that the mother had violated certain provisions of the December 30, 2010, judgment and that she had filed a new complaint with the Calhoun County Department of Human Resources on January 5, 2011, alleging that the father had abused the children; in support of his assertions, the father submitted transcripts of the mother’s recent telephone conversations with the children.

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Cite This Page — Counsel Stack

Bluebook (online)
127 So. 3d 417, 2012 WL 3242101, 2012 Ala. Civ. App. LEXIS 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-arnold-alacivapp-2012.