Stender v. Stender

194 So. 3d 960, 2015 Ala. Civ. App. LEXIS 223, 2015 WL 5773820
CourtCourt of Civil Appeals of Alabama
DecidedOctober 2, 2015
Docket2140238
StatusPublished

This text of 194 So. 3d 960 (Stender v. Stender) 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
Stender v. Stender, 194 So. 3d 960, 2015 Ala. Civ. App. LEXIS 223, 2015 WL 5773820 (Ala. Ct. App. 2015).

Opinion

PER CURIAM.

John F. Stender (“the former hpsband”) appeals from a judgment entered by the Madison Circuit Court (“the trial court”) in a postdivorce action brought by Tammy W. Sylvester Stender (“the former wife”). We affirm in part, reverse in part, and remand with instructions.

The parties, who have six children, divorced in 2012. Their firstborn child was no longer a minor when the judgment divorcing the parties (“the divorce judgment”) was entered; therefore, the divorce judgment made no provision for his custody. The divorce judgment awarded [963]*963the former husband primary physical custody of the parties’ second-born child and awarded the parties joint legal and physical custody of their third-born child (“the third-born child”), a girl bom in 1996, their fourth-born child (“the fourth-born child”), a girl bom in 2000, and their two youngest children (“the twins”), twin boys born in 2001 (the third-born child, the fourth-bom child, and the twins are here- ' inafter referred to collectively as “the four youngest children”). The other provisions of the divorce judgment pertinent to this appeal ordered the former husband to pay the former wife child support in the amount of $2,600 per month; ordered the former husband, within 30 days, to open a savings account (“the savings account”) for the benefit of the third-born child and deposit therein a $1,600 gift (“the $1,600 gift”) the third-born child had received from her paternal grandfather; ordered the former husband to assist the former wife in obtaining continuation health insurance under his employer’s group health-insurance plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”); ordered the former husband to pay the former wife’s health-insurance premiums for 36 consecutive months following the entry of the divorce judgment; provided that “[t]he [former] [hjus-band' shall retain [a miniature ship made of ivory (‘the ivory ship’) ] conditioned upon his bequeathing the 'same to his children”; ordered the former husband to provide the former wife with proof that he had executed a will bequeathing the ivory ship to the parties’ children; ordered the former husband to pay the third-born child’s and the fourth-born-child’s private-school tuition; ordered the former wife to pay the twins’ private-school tuition; ordered each party to pay one-half of any medical and dental bills of the four youngest children that were not paid by insurance (“the out-of-pocket medical and dental expenses”); ordered each party to pay one-half of .the four youngest children’s extracurricular-activity expenses (“the extracurricular-activity expenses”); ordered the former husband to pay all the minor children’s automobile-insurance premiums until they became adults; and restrained each of the parties from harassing the other.

In July 2013, the former wife sued the former husband, seeking (1) primary physical custody of the four youngest children; (2) an increase in the amount of the former husband’s child-support obligation; (3) findings of contempt against the former husband based on, among other things, allegations that he had not complied with the provisions of the divorce judgment requiring him (i) to execute a will bequeathing the ivory ship to the parties’ children, (ii) to establish the savings account and deposit therein the $1,600 gift, (iii) to pay the former wife’s health-insurance premiums for 36 months, and (iv) to pay one-half of the out-of-pocket medical and dental expenses and one-half of the extracurricular-activity expenses; and (4) an attorney fee. The husband filed an answer and a counterclaim seeking a change in the parties’ custodial periods, a reduction in the amount of his child-support obligation, and findings of contempt against the former wife based on, among other things, an allegation that the former wife had harassed thp former husband at a bowling alley.

Thereafter, the trial court held a bench trial at which it received evidence ore ten-us. Upon the conclusion of the trial, the trial court orally stated that it found'that the former husband had not paid- the former wife’s health-insurance premiums for 18 of the 36 months he was required to pay them by the divorce judgment, found him in contempt for not paying those premiums, sentenced him to 5 days in jail for [964]*964each of the 18 payments he had not paid, and had him immediately arrested and incarcerated. The next day, the former husband filed a motion asking the trial court to split his 90-day sentence for failing to pay the former wife’s health-insurance premiums for 18 months and to suspend •the unserved portion of that sentence. As the ground of his motion, he asserted that earlier that day he had arranged for a certified check in the amount of $24,443.50 to be delivered to the former wife’s counsel and that that amount represented payment in'full for her health-insurance premiums for 36 months1 plus reimbursement for health-related expenses she had incurred while she did not have health insurance during that 36-month period. The next day, the trial court held a hearing, released the former husband from jail, and suspended the remaining 88 days of the 90-day sentence, although it did not base its decision on' the former husband’s having paid the former wife $24,443.50.

In August 2014, the trial court entered a written judgment awarding the former wife primary physical custody of the four youngest children; finding that an award of child support for the third-born child was not necessary because she was the beneficiary of a trust; finding that the former husband’s gross monthly income exceeded the uppermost level of the Rule 32, Ala. R. Jud. Admin., schedule; and awarding the former wife child support in the amount of $6,800 per month for the fourth-born child and the twins (hereinafter referred to collectively as “the three youngest children”).- In addition, the judgment ordered -the former wife to pay all of the four youngest children’s nonemergency and nonextraordinary out-of-pocket medical and dental expenses and ordered each of the parties to pay one-half of any out-of-pocket expenses incurred for orthodontic services, emergency medical or dental services, or extraordinary medical or dental services. The judgment contained the following pertinent provisions regarding the former wife’s contempt claims against the former husband:

“8. By agreement of the parties, the [former wife’s] allegation that the [former husband] is in contempt of court for failure to timely make a testamentary document bequeathing the ivory ship to the children is hereby dismissed. Physical possession of the ivory ship shall be awarded to the [former wife] to be held in trust for the children of the parties. The [former husband], however, shall have the right to award possession of the ivory ship to an individual child or' multiple children upon his death through testamentary beque[st] as such' ivory ship previously belonged to relatives of the [former husband]. In the event the [former wife] predeceases the [former husband], the ivory ship shall be returned to the physical possession of the [former husband].
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“12. The [former husband] is found to be in criminal contempt of court for his failure to open an. account in his and [the third-born child’s] name and depos-ite ] the gift to [the third-bom child] of $1,600.00, .as ordered previously by the Court. The [former husband] is sentenced to five (5) days incarceration in the [Huntsyille-]Madison County [Metro] [J]ail, but the Couit hereby suspends said sentence for a period of two (2)

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Bluebook (online)
194 So. 3d 960, 2015 Ala. Civ. App. LEXIS 223, 2015 WL 5773820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stender-v-stender-alacivapp-2015.