Anderson v. Anderson)

• Decision Date: 10 December 2010
• Docket Number: 2090265 and 2090645.
• Parties: Scott Alan ANDERSONv.Annette Lynn ANDERSON.Ex parte Scott Alan Anderson.(In re Scott Alan Andersonv.Annette Lynn Anderson).
• Court: Alabama Court of Civil Appeals

65 So.3d 435

Scott Alan ANDERSON

v.Annette Lynn ANDERSON.Ex parte Scott Alan Anderson.(In re Scott Alan Anderson

v.Annette Lynn Anderson).

2090265 and 2090645.

Court of Civil Appeals of Alabama.

Dec. 10, 2010.Certiorari Denied Jan. 7, 2011

Alabama Supreme Court 1100355.

Joan–Marie Dean, Huntsville, for appellant/petitioner Scott Alan Anderson.Dinah P. Rhodes of Rhodes & Creech, Huntsville, for appellee/respondent Annette Lynn Anderson.

On Application for Rehearing in Case No. 2090265

BRYAN, Judge.

The opinion of September 17, 2010, is withdrawn, and the following is substituted therefor.

Scott Alan Anderson (“the husband”) appeals from a judgment of the Morgan Circuit Court that divorced him from Annette Lynn Anderson (“the wife”), and he petitions this court for a writ of mandamus directing the trial court to grant his request for a temporary restraining order, which sought to prevent the wife from changing the principal residence of the parties' two minor children. We dismiss the husband's appeal as being from a nonfinal judgment, and we grant the husband's petition for writ of mandamus.

Procedural History

On April 9, 2009, the husband filed a complaint for a divorce alleging that he and the wife had married on October 2, 1999, and that two children had been born of the marriage: a boy, born in November 2001, and a girl, born in January 2005 (hereinafter referred to collectively as “the children”). The husband further alleged that he was entitled to a divorce on the ground of physical cruelty, and he requested custody of the children, an award of child support, and division of the parties' property and debts.

The wife filed an answer to the husband's complaint and asserted that the breakdown of the marriage was due to the husband's adultery. The wife also filed a counterclaim for a divorce and sought custody of the children, an award of child support, permission to move with the children to North Carolina, an equitable division of the parties' property and debts, an award of periodic alimony, and an award of her attorney's fees. The wife subsequently filed an amendment to her counterclaim for a divorce requesting an award of 50% of the husband's retirement benefits and arguing, among other things, that Ala.Code 1975, § 30–2–51, was unconstitutional because it deprived the wife of equal protection of the law and due process afforded under the United States Constitution and the Constitution of the State of Alabama. The wife served the attorney general pursuant to Ala.Code 1975, § 6–6–227, and the attorney general filed an acceptance and waiver of his right to be heard.

In August 2009, the trial court conducted an ore tenus hearing on the parties' pending complaints for a divorce and on the pending contempt petitions that had been filed by both parties. On September 29, 2009, the trial court issued an order finding Jessica Slocumb, the husband's paramour, in contempt of court for her failure to appear at the parties' divorce trial.¹

On October 7, 2009, the trial court entered a judgment divorcing the parties. In its judgment, the trial court stated:

“The parties appeared in court, represented by their attorneys, and presented evidence and testimony in open court. After the presentation of the evidence, the Court held a show cause hearing due to the failure of a witness, Jessica Slocumb, to appear at trial in response to a subpoena served upon her by the [wife]. At said show cause hearing, Jessica Slocumb appeared with her attorney and presented testimony, including testimony that she was involved in a sexual relationship with the [husband] and was pregnant with his child, that she had experienced prior miscarriages of the [husband's] child, that she used the [husband's] last name, even though she was not married to him, and that she was wearing a ring given to her by the [husband] on her left ring finger. The testimony of Jessica Slocumb gave the Court no confidence in the credibility of the [husband's] testimony presented at trial. Upon consideration of the same, the Court does hereby ORDER, ADJUDGE and DECREE as follows....”

The trial court divorced the parties on the ground of the husband's adultery, awarded the parties joint legal custody of the children, awarded the wife sole physical custody of the children, and awarded the husband “standard” visitation with the children. The judgment also stated:

“The [wife]'s request to move the residence of the children more than 60 miles from the current marital residence is granted, and the [wife] shall be allowed to do so should she deem it appropriate for her and the children. In said event, the [wife] shall provide the [husband] with the children's new residence address and telephone number, and the name and address of the children's schools. In said event, the [husband] shall have visitation with the children in accordance with the Court's Standard Out of State Schedule, attached hereto....”

Among other things, the judgment ordered the husband to pay $2,500 a month in child support, $2,500 a month for 60 months in periodic alimony to the wife, and $12,424.06 to the wife for payment of her attorney's fees. The judgment further divided the parties' property and debts and awarded the wife one-half of the value of the husband's retirement benefits.

The husband filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P., and requested a hearing on his postjudgment motion. The husband argued that the trial court had wrongfully considered the testimony heard at Jessica Slocumb's contempt hearing because the taking of evidence in the parties' divorce trial had closed on August 12, 2009, the last day of the ore tenus hearing in the divorce action. The husband also challenged, among other things, the award of sole physical custody of the children to the wife; the permission granted to the wife to relocate the children more than 60 miles from the marital residence, alleging that it was contrary to provisions of the Alabama Parent–Child Relationship Protection Act, codified at Ala.Code 1975, § 30–3–160 et seq. (“the Act”); the award of child support; the award of periodic alimony; the division of marital property and debts; and the award of 50% of his retirement benefits to the wife, because the parties had not been married for 10 years.

The trial court issued an order that granted the husband's postjudgment motion insofar as the husband argued that the trial court had wrongfully considered the testimony from Jessica Slocumb's contempt hearing. The trial court set a hearing “to reopen the case for the presentation of additional testimony relating to the [husband]'s credibility, which is the only issue the Court considered at the show cause hearing previously held.” The trial court denied all other relief requested in the husband's postjudgment motion. The husband subsequently filed an objection to holding an evidentiary hearing and argued that the trial court did not have jurisdiction to amend the divorce judgment because it had lost jurisdiction over the case in light of the fact that it had denied the husband's requested postjudgment relief related to the divorce judgment. The husband argued that additional testimony regarding the husband's credibility was rendered irrelevant by the trial court's order. The husband timely filed his notice of appeal on December 16, 2009.

On February 16, 2010, the husband filed an emergency motion for a temporary restraining order in response to receiving notice by the wife, on January 28, 2010, that she intended to move with the children to Sturgeon Bay, Wisconsin, on February 27, 2010; the husband did not notify the wife when he filed the motion. On February 25, 2010, the trial court entered an order denying the husband's motion for a temporary restraining order, citing the provision in the parties' divorce judgment that permitted the wife to move more than 60 miles from the location of the marital residence. On April 9, 2010, the husband filed a petition for a writ of mandamus, arguing that this court should grant his petition and order the trial court to issue a temporary restraining order preventing the wife from changing the principal residence of the children to Sturgeon Bay. In his petition for a writ of mandamus, the husband argues that the testimony presented by the wife at the parties' divorce trial was related to a possible move to North Carolina, not Wisconsin, and he argues that the relocation provision in the divorce judgment is not in compliance with the Act. This court consolidated the husband's appeal from the divorce judgment and his petition for a writ of mandamus ex mero motu.

Issues

In addition to the issues presented by the husband in his petition for a writ of mandamus, the husband presents several issues for review by this court resulting from the divorce judgment, namely: (1) that the trial court erred by failing to conduct a hearing on his postjudgment motion and by failing to grant relief to the husband in light of the trial court's implicit concession that it had improperly considered evidence from Jessica Slocumb's contempt hearing; (2) that the trial court erred by awarding the wife one-half of his retirement benefits in light of the fact that the parties' had not been married for 10 years; (3) that the trial court erred in its custody determination; (4) that the trial court exceeded its discretion by allowing the wife to change the principal residence of the children; (5) that the trial court exceeded its discretion by ordering the husband to pay $2,500 a month in child support; (6) that the trial court exceeded its discretion in ordering the husband to pay the wife periodic alimony in the amount of $2,500 a month; (7) that the trial court erred in its division of property and debts; and (8) that the trial court exceeded its discretion in ordering the husband to pay the wife's attorney's fee.

Discussion

A. The Husband's Appeal from the Divorce Judgment

The...