Bearden v. DiGeronimo (Ex parte DiGeronimo.)
| Decision Date | 09 October 2015 |
| Docket Number | 2140611. |
| Citation | 195 So.3d 963 |
| Parties | Ex parte Jill Dorian DiGERONIMO. (In re James Bearden v. Jill Dorian DiGeronimo). |
| Court | Alabama Court of Civil Appeals |
Ronald S. Held of Sides, Oglesby, Held, Dick, Stephens & Clay, LLC, Anniston, for petitioner.
Shirley A. Millwood, Alexandria, for respondent.
In October 2012, James Bearden (“the father”) filed a complaint in the Calhoun Circuit Court seeking a divorce from Jill Dorian DiGeronimo (“the mother”). The mother failed to timely answer the complaint after she was served, and the father moved for a default judgment. On May 3, 2013, the trial court entered a default divorce judgment (“the default divorce judgment”) in which it, among other things, awarded the father custody of the parties' child.
On August 22, 2013, the mother filed a motion she entitled “Motion to Set Aside Default and Motion for Relief from Judgment” (“the mother's Rule 60(b) motion”) in which she sought to have the default divorce judgment set aside.1 The trial court set the mother's Rule 60(b) motion for a hearing to be held on September 26, 2013. After that hearing, the trial court entered a divorce judgment on October 1, 2013 (“the October 2013 divorce judgment”), in which it specifically stated that the parties had agreed to set aside the default divorce judgment and that the parties had reached an agreement on the issues. That judgment further set out the agreement of the parties regarding, among other things, custody of the child, which was awarded to the mother, and set out a specific visitation schedule for the father.
On October 23, 2013, the parties filed with the trial court child-support-guideline forms and a document containing both typed and handwritten information pertaining to the parties' divorce agreement bearing the initials of the father and the signature of the mother on each page. On October 30, 2013, the father filed a Rule 59, Ala. R. Civ. P., motion in which he argued that the mother, who resides in New Jersey, had not remained in Alabama long enough to sign the divorce agreement drafted by the father's attorney. He also complained that the mother had refused to comply with the custody and visitation aspects of the October 2013 divorce judgment. The father requested that the trial court set aside the October 2013 divorce judgment and reinstate the provisions of the default divorce judgment. The State Judicial Information System case-action-summary sheet reflects that a hearing was scheduled for December 19, 2013, but the record also contains a motion to continue that hearing; the record does not definitively reflect that the December 19, 2013, hearing was held. The record contains no ruling on the father's postjudgment motion, which was, therefore, denied by operation of law on January 28, 2014.See Rule 59.1, Ala. R. Civ. P.
On December 16, 2013, the father filed a “motion to produce the child” in which he alleged that he had not seen the child since the parties separated in July 2012. The following day, the father filed an ex parte petition seeking custody of the child, which the father supported by an affidavit in which he stated that he had attempted to make travel arrangements for the November visitation outlined in the October 2013 divorce judgment, that the mother had failed to show up for the flight the father had arranged, and that he had therefore not had any visitation with the child. The father further averred that the mother had suffered from both psychiatric and drug-use issues in the past and that he feared for the child's safety in her care.
On February 24, 2014, the father filed a motion seeking to hold the mother in contempt for failing to comply with the October 2013 divorce judgment. In his motion, the father sought to have the mother held in both civil and criminal contempt for preventing him from exercising his visitation rights. The father specifically sought $664.60 in reimbursement for the expenses he had incurred when he had made travel arrangements for the mother and the child in November 2013. The trial court set the contempt motion and the custody petition for a trial to be held on May 30, 2014.
On March 31, 2014, the father again filed a “motion to produce the child.” On April 3, 2014, the trial court entered an order granting what it described as a “motion to have child present at trial”; no such motion appears in the record. The April 3, 2014, order instructed the mother to bring the child with her to the scheduled trial on May 30, 2014.
On April 22, 2014, the mother, acting pro se, filed a response to the father's contempt motion and a response to what she described as his “motion to reinstate default judgment,” which, we believe, was the father's postjudgment motion. In her response to the father's contempt motion, the mother explained why she had failed to comply with the visitation provisions of the October 2013 divorce judgment. The mother also alleged in her response that the father was in contempt for failing to comply with the visitation provisions of the October 2013 divorce judgment and for failing to pay child support. Although the record does not contain the motion, it appears that the mother also filed a motion seeking to appear at the May 30, 2014, trial by telephone. The trial court denied that motion on May 23, 2014.
On May 30, 2014, the trial court entered an order in which it awarded custody of the child to the father.2 The order further found the mother in both civil and criminal contempt for her failure to abide by the visitation provisions of the October 2013 divorce judgment, awarded the father a judgment of $664.60 in reimbursement of travel expenses, found the mother in direct contempt of the April 3, 2014, order requiring the mother to produce the child at trial, fined the mother $500 for that direct contempt, denied the mother's “petition for contempt,” and awarded the father a $2,500 attorney fee.
On July 8, 2014, the mother filed, through counsel, a motion to reconsider the May 30, 2014, order. The trial court set the mother's motion for a hearing to be held on July 28, 2014. Although it appears that the trial court held that hearing, the trial court entered no order on the mother's motion. On September 12, 2014, the mother filed a “motion for immediate relief” in which she alleged that the parties had been unable to agree on the terms of a temporary order regarding custody of the child as they had been ordered to do at the July 28, 2014, hearing. The mother also complained that she had not been provided contact information for or welfare information about the child, that she had had only minimum contact with the child, and that she had not been permitted to visit with the child other than a few hours on July 29, 2014. She sought an order requiring that she be provided contact information for the child, that she be provided access to certain medical records of the child, and that she be permitted to exercise a two-week visitation period purportedly awarded to her by the trial court at the July 28, 2014, hearing. The father responded to the mother's motion, denying her allegations that she did not have contact information or that her contact with the child had been limited.
On December 4, 2014, the mother filed a “motion for visitation.” In that motion, the mother complained that the May 30, 2014, order had failed to set out a pendente lite visitation schedule for the mother. On December 10, 2014, the trial court entered an order setting out a Christmas visitation schedule for the mother; the mother was required to exercise that visitation under supervision in Alabama. The order further set the case for a trial to be held in February 2015.
On February 6, 2015, the mother filed a motion seeking the recusal of the trial judge, Laura B. Phillips. Despite the father's objection, Judge Phillips recused herself by an order dated February 9, 2015. The case was assigned to Judge Peggy Lacher.
On April 3, 2015, the trial court entered an order in which it summarized the procedural history of the case and stated that it was unclear about what matters were pending. The trial court ordered that an April 20, 2015, trial setting would be converted to a hearing at which the trial court would hear arguments concerning what matters were pending. In its rendition of the procedural history, the trial court stated its belief that the October 2013 divorce judgment had failed to resolve the mother's Rule 60(b) motion. The mother moved the trial court, under Rule 60(a), Ala. R. Civ. P., to correct as a “clerical error” the failure of the October 2013 divorce judgment to specifically state that the Rule 60(b) motion had been granted; the trial court did not rule on that motion. Both parties submitted memorandum briefs to the trial court in support of their respective positions on which judgment or order of the trial court was operative and what matters remained pending and within the jurisdiction of the trial court.
On April 21, 2015, after the hearing, the trial court entered an order (“the April 2015 order”) again outlining the procedural history of the case and concluding, among other things, (1) that the trial court had accepted a “stipulated” judgment of divorce without having taken testimony regarding the grounds for the divorce and that, therefore, the October 2013 divorce judgment was void, (2) that the trial court had not ruled on the mother's Rule 60(b) motion for relief from the default divorce judgment, (3) that the mother's Rule 60(b) motion was due to be granted, and (4) that the divorce action would be set for trial.
The trial court “certified” the April 2015 order as follows:
“Since this ruling involves a controlling question of law as to which there is substantial ground for difference of opinion; since the [mother] has indicated a desire to appeal this ruling; since an immediate appeal from this Order would materially advance the ultimate resolution of litigation and since an appeal could potentially avoid protracted and...
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