Smith v. Smith

828 So. 2d 937, 2002 Ala. Civ. App. LEXIS 134, 2002 WL 321166
CourtCourt of Civil Appeals of Alabama
DecidedMarch 1, 2002
Docket2000902
StatusPublished

This text of 828 So. 2d 937 (Smith v. Smith) 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
Smith v. Smith, 828 So. 2d 937, 2002 Ala. Civ. App. LEXIS 134, 2002 WL 321166 (Ala. Ct. App. 2002).

Opinion

CRAWLEY, Judge.

Irmgard Smith (the “mother”) and Larry James Smith (the “father”) were divorced on January 12, 2001. The trial court ordered that the parties would have joint legal and physical custody of their three children,1 who were between the ages of 5 and 11 years old when the trial court issued its divorce judgment. The parties were to exchange the children every week on Wednesdays.

On January 16, the father filed an ex parte petition for emergency relief alleging that the mother had fled Alabama with two of the children to live in Florida and that he feared the mother might also flee to Germany, her native country. The trial court immediately granted the father’s relief and entered a temporary order stating that the children were not to be removed from Marshall County or Etowah County until a final hearing was conducted. The trial court scheduled the hearing for January 26, but later rescheduled it for May 10. On January 23, the mother filed a response to the father’s petition in which she admitted to leaving Alabama with two of [939]*939the children but denied that she intended to keep the children from returning to Alabama. She further stated that she misunderstood the date that she was to return the children to the father.

In addition to her response, the mother moved to alter, amend, or vacate the divorce judgment on the grounds that the children’s best interests were not being served by the existing joint custody arrangement because, she says, (1) the children were to “live out of their suitcases until they reach[ed] the age of majority”; (2) the father had continued to make disparaging remarks about her despite being ordered not to do so in the divorce judgment; and (3) “it is illogical to believe that the parties will agree on any division of time with the children during the holidays.” The trial court set a hearing for the mother’s motion for March 6.

When the mother’s motion was heard on March 6, the father presented evidence relating to the mother’s removal of the children from Alabama. The mother stated that she thought the father’s allegations were to be heard at the May 10 hearing. She argued that she was not prepared to dispute the father’s allegations at the March 6 hearing. At the conclusion of the hearing, the trial court stated that it would allow the mother to be heard at a subsequent hearing, but it rescheduled the May 10 hearing for June or later. The following was recorded during the hearing on March 6:

“[Mother’s attorney]: Judge, that’s all I have at this time. We are stuck with the position of all this we have been talking about. I thought we were going to be hearing in May. So, I don’t have a lot of things I thought I was going to need.
“The court: Sure. I will leave the door open for you to offer whatever you want to offer.
“[Mother’s attorney]: Aso, part of that would be checking the court transcript of what Mr. Beck [an expert witness called by the father] testified to at trial because he testified to something that I didn’t remember him testifying to at the trial. And, also, hearing the appropriate — either documents or testimony to show that she was not going to be staying in Florida past the fourteenth of January. Plus, from her sisters about her also telling them that she had planned to take a few days vacation after the divorce was final. And, you know, I don’t have any of that now, because, like I said, I thought we were going to be discussing all that in May.
“[Father’s attorney]: Judge one thing I’d say on Mr. Beck’s testimony, Mr. Beck was here, [the mother’s attorney] could have cross-examined him at that time.
“[Mother’s attorney]: Well, it’s hard to cross-examine him about—
“[Father’s attorney]: I just hate to keep delaying—
“[Mother’s attorney]: It’s hard to cross-examine him about something without having the transcript of the hearing that I didn’t know I was going to need because I didn’t know we were going to be hearing from Mr. Beck yesterday because that was the hearing set for May.
“[Father’s attorney]: Well, you didn’t request the transcript already and, I guess, you know, if we waited until May to have the hearing you wouldn’t have the transcript at that time.
“The Court: Counsel is saying that he cannot be totally prepared until May which is fine and good but I can’t make any drastic changes until May either.
“[Mother’s attorney]: Well, I’m understanding. I’m saying I could have [940]*940been prepared before May. I’m just saying I thought the hearing on this issue was in May.
“The Court: Well, I didn’t know what the issues were going to be other than it was supposed to have been 80 minutes yesterday.
“[Mother’s attorney]: That’s what— my motion would have been 30 minutes yesterday, Judge but—
“The court: So you could have had the transcript and done all you needed to have done yesterday in your 30 minutes?
“[Mother’s attorney]: No, sir, that transcript would not have been under anything from my motion. That was under his motion is what I’m saying.
“The court: Ml right. Well, like I said, I left the door open for you to offer whatever you want to now or between now and May or May whatever-the-day-is.
“The court: Well what do you want final about it? Again, unless I dose the door on his motion, which I already told him [the mother’s attorney] I would not do. He says he was prepared to go in May because there is an order setting something in May and we have got to give him his day in court in May.
“[Father’s attorney]: Okay. Well, Judge, we rest right now.
“[Mother’s attorney]: I’m saying, Judge, I can come up with things before May but I just know that was the date that was here.
“The court: Well, I’m booked until June. If you’re going to get your May date we have got to put it off until June because I am booked from now until June, maybe later, ... [I]f there’s something you can offer without having to take further testimony, yeah, you can go right ahead if that makes it where we can go ahead and act on it without having a further hearing. If not, again, I have already told you I would give you additional time and I will certainly adhere to what I said I would do.
“[Mother’s attorney]: Okay.
“[Father’s attorney]: Judge, I can look into ways of getting that without needing additional testimony.
“The court: Okay. Just let us know so we can go ahead and act on it. If not, then — y’all want me to cure a lot of ills that two or three judges have handled over the space of a year in two hours and 30 minutes of hearing. I don’t have the wisdom of Solomon. So, I don’t think I can do that. I will have to hear more. Let me know, Chris [the Mother’s attorney], if you are ready to submit it. If not, then we have got another date.
“[Mother’s attorney]: Yes, sir.”

(Emphasis added.)

On April 25, the mother’s attorney filed a motion to withdraw.

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Related

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777 So. 2d 738 (Court of Civil Appeals of Alabama, 2000)
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Cite This Page — Counsel Stack

Bluebook (online)
828 So. 2d 937, 2002 Ala. Civ. App. LEXIS 134, 2002 WL 321166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-alacivapp-2002.