M.S.M. v. M.W.M.

72 So. 3d 626
CourtCourt of Civil Appeals of Alabama
DecidedMarch 11, 2011
Docket2090949
StatusPublished

This text of 72 So. 3d 626 (M.S.M. v. M.W.M.) 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
M.S.M. v. M.W.M., 72 So. 3d 626 (Ala. Ct. App. 2011).

Opinion

BRYAN, Judge.

M.S.M. (“the wife”) appeals from a judgment entered by the Montgomery Circuit Court (“the circuit court”) that divorced her from M.W.M. (“the husband”).

Procedural History

The husband filed a complaint for a divorce in the circuit court on April 14, 2009, and the wife subsequently filed an answer and a counterclaim for a divorce. The divorce action was docketed in the circuit court as case no. DR-09-347. The husband filed a motion to appoint a guardian ad litem on behalf of the parties’ daughter, the only child born of the parties’ marriage (“the child”), who was born in September 1996. The circuit court appointed a guardian ad litem on behalf of the child on May 4, 2009.

On May 21, 2009, the guardian ad litem, in case no. DR-09-347, filed a motion styled “Motion for Finding of Dependency” in the circuit court.1 The guardian ad litem alleged that the child was dependent because she was being emotionally abused by the husband and the wife and because the husband and the wife had not exercised proper parental care and control necessary for the child’s well-being. The guardian ad litem requested that a finding of dependency be made based on testimony presented at a pendente lite hearing that had been conducted before a special master of the circuit court on May 19, 2009, and that the circuit court “bifurcate the dependency action from the divorce action.”

On June 23, 2009, a special master of the circuit court filed a report of reference based on testimony presented before the special master at the May 19, 2009, pen-dente lite hearing. For pendente lite purposes, the special master recommended, among other things: (1) that the child be declared dependent based on alleged mental and emotional abuse inflicted by the husband and the wife; (2) that the parties share legal custody of the child and that the wife exercise primary physical custody of the child; (3) that the parties and the child be required to submit to psychological evaluations; (4) that the wife be allowed temporary exclusive use and possession of the parties’ marital residence; (5) [630]*630that the husband pay $669 a month in child support to the wife and $1,500 a month in alimony to the wife; and (6) that the wife be required to pay all expenses associated with the marital residence. On the same day, the circuit court entered an order approving and confirming the report of reference, and it entered a separate order requiring the husband, the wife, and the child to submit to psychological examination by Dr. Warren Brantley.

The circuit court, also on June 23, 2009, entered an order purporting to transfer the issues related to the child’s custody to the Montgomery Juvenile Court (“the juvenile court”). In that order, the circuit court purported to find the child dependent based on the recommendation of the special master and the guardian ad litem’s motion seeking to find the child dependent.2 The purported juvenile action was assigned case no. JU-08-509.01. The same circuit-court judge presided over the divorce action in the circuit court and the purported juvenile action in the juvenile court.

After conducting a hearing on September 17 and September 22, 2009, the special master entered a second order of reference on October 2, 2009, that recommended, among other things, that the parties continue to share legal custody of the child but that physical custody of the child should be transferred to the husband, subject to the wife’s visitation with the child. The special master also recommended that the husband pay the mortgage and utility bills for the marital residence and pay the wife $200 a month in alimony. The circuit court entered an order approving and confirming the special master’s report of reference.

In October 2009, the guardian ad litem filed a motion recommending that the wife and the husband submit to evaluation by a board-certified psychiatrist. On December 16, 2009, the circuit-court judge, purporting to act as a juvenile-court judge, issued an order, based on “extensive argument from counsel,” that suspended the wife’s visitation with the child until further notice, that ordered that any communication between the wife and the child be recorded, and that ordered the wife and the husband to submit to psychiatric evaluation.

On December 24, 2009, the wife filed a petition in the juvenile court alleging that the child was dependent; that petition was assigned case no. JU-09-509.02. The wife alleged that the child was in immediate danger of physical and/or emotional harm because the husband was isolating the child from the wife. In her dependency petition, the wife stated that she should be awarded sole physical custody of the child and that the husband should be awarded supervised visitation. On January 12, 2010, the guardian ad litem filed a motion to allow the wife supervised visitation with the child and to allow the wife to communicate with the child using the speakerphone function of a telephone.

[631]*631On January 7, 2010, January 25, 2010, and February 1, 2010, a final ore tenus hearing was conducted on the divorce action and the juvenile actions. The circuit court entered a divorce judgment on March 11, 2010, in case no. DR-00-347 that purported to consolidate case nos. JU-09-509.01 and JU-09-509.02 for the purpose of issuing one judgment, and, in that judgment, case nos. JU-09-509.01 and JU-09-509.02 were “closed.” Pursuant to the divorce judgment, the circuit court awarded the husband sole legal and physical custody of the child and awarded the wife supervised visitation with the child every other Saturday from 10:00 a.m. until 2:00 p.m. The wife’s supervised visitation with the child was to continue until the child’s counselor and the husband agreed that the wife should have unsupervised visitation. At that point, the wife would be awarded “standard visitation,” as specifically set forth in the divorce judgment. The wife was ordered to pay child support in the amount of $100 per month, but that obligation was suspended by the circuit court due to the wife’s unemployment. The parties were ordered to equally share responsibility for any of the child’s noncov-ered medical expenses.

The husband was awarded all title to and interest in the parties’ marital residence, and the wife was ordered to immediately vacate the marital residence. However, pursuant to the judgment, the husband could either (1) immediately place the marital residence for sale and, upon sale of the marital residence, equally divide the net proceeds of the sale with the wife or (2) reside in the marital residence and purchase the wife’s one-half interest in the net equity of the marital residence. The wife was awarded 30% of the husband’s vested retirement benefits, an amount equal to $36,655. Additionally, the wife was awarded rehabilitative alimony in the amount of $200 a month for approximately 9 months. The parties were each awarded a vehicle, the bank accounts in their respective names, and certain specific pieces of personal property. The wife was permitted to retain the parties’ income-tax refund from 2008 in order to offset certain expenses incurred by the husband while the parties had been separated. Each party was ordered to pay all debts incurred in his or her individual name.

The wife subsequently filed a motion to stay enforcement of the divorce judgment and a motion for postjudgment relief pursuant to Rule 59, Ala. R. Civ. P. In her postjudgment motion, the wife argued, among other things, that the divorce judgment was nonfinal.

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Bluebook (online)
72 So. 3d 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/msm-v-mwm-alacivapp-2011.