Carden v. Carden

• Decision Date: 10 December 2010
• Docket Number: 2090536.
• Citation: 64 So.3d 1116
• Parties: Ashley S. CARDENv.Michael B. CARDEN.
• Court: Alabama Court of Civil Appeals

64 So.3d 1116

Ashley S. CARDEN

v.Michael B. CARDEN.

2090536.

Court of Civil Appeals of Alabama.

Dec. 10, 2010.

Joan–Marie Dean, Huntsville, for appellant.D. Milburn Gross, Jr., Meridianville, for appellee.THOMAS, Judge.

Ashley S. Carden (“the mother”) appeals from a judgment of the Madison Circuit Court divorcing her from Michael B. Carden (“the father”) and awarding the parties joint legal and physical custody of the parties' minor child (“the child”). We reverse and remand with instructions.

The mother and the father were married in 2003. On October 14, 2008, the mother filed a complaint in the trial court seeking a divorce. In her complaint, the mother alleged that the parties had been exercising joint custody of the child, with each party having custody on alternating weeks, during their separation. The mother further alleged that she was not satisfied with the parties' current joint-custody arrangement, and she requested that the trial court award her primary physical custody of the child. The trial court entered a pendente lite order on October 21, 2008, in which it ordered that the child should reside with the party who was living in the marital residence and that the other party would have visitation with the child.

On October 31, 2008, the mother moved the trial court to hold the father in contempt for violating the pendente lite order. In her motion, the mother alleged, among other things, that she was living in the marital residence and, thus, should have pendente lite custody of the child, that the father had taken the child and would not return the child to the mother, and that the father would not inform the mother of where the child was enrolled in day care.

On November 4, 2008, the father moved the trial court to award him pendente lite custody of the child. In his motion, the father alleged that he had been the child's primary caregiver before the parties' separation, that the child was currently in his care, and that the mother had stated that she would not allow the father to exercise visitation with the child if he returned custody of the child to her.

The trial court amended the custody provisions of its pendente lite order on December 19, 2008. In the amended provisions, the trial court awarded the mother pendente lite custody of the child, so long as the mother lived in the home belonging to John and Carol Smith (“the maternal grandparents”). The trial court awarded the father visitation with the child every other weekend, every Wednesday night, and other, specified times for holidays and during the summer. On December 19, 2008, the father requested that the trial court appoint a guardian ad litem for the child; the trial court granted the father's request.

On January 14, 2009, the mother filed a second motion to hold the father in contempt. The mother alleged in her motion that the father had failed to pay child support as required by the pendente lite order. The mother also alleged that the father had failed to pay his required portion of the first and second mortgages on the marital residence.

On August 31, 2009, the trial court held a hearing on the mother's divorce complaint and the mother's two contempt motions. Thereafter, the trial court entered a judgment divorcing the parties and dividing the marital property. In its judgment, the trial court awarded the parties “joint legal and joint physical custody” of the child. The trial court awarded the mother custody of the child at all times except those times awarded to the father in the “Standard Visitation Schedule” that was attached to the judgment. The provisions in the “Standard Visitation Schedule” provided that the father would have visitation with the child every other weekend, every Wednesday night, and certain times for holidays and during the summer. The trial court also ordered the father to pay $520 per month to the mother in child support.

In its judgment, the trial court held the father in contempt of court for what it determined was a willful violation of the trial court's pendente lite order. The trial court determined that

“after the [father] was served with a copy of the Standing Pendente Lite Order, the [father] took the parties' child, moved her residence to Decatur, Alabama, keeping her hidden from the [mother] and the Court, enrolling her in two (2) different day care centers, all in an effort to prevent the [mother] from contacting the child or having access to her, pendente lite. As a result, the [mother] was deprived access to and contact with the child from October 24, 2008[,] until December 16, 2008.”

The trial court ordered the father to be incarcerated for 49 days, with 42 of the days suspended for 2 years, provided that the father complied with all further orders of the trial court. The trial court also found that the father's mother was an active participant in assisting the father in his efforts to prevent the mother from having access to the child.

Additionally, the trial court found the father in contempt for failing to pay child support or to contribute to the payment of the first and second mortgages on the marital residence, as required by the pendente lite order. The trial court ordered the father to be incarcerated for 20 days and to pay the mother $2,709.20.

The father subsequently filed a postjudgment motion, moving the trial court to alter or amend its judgment or, in the alternative, moving the trial court for a new trial. Among other things, the father requested that the trial court award the father additional custodial periods with the child. The mother responded to the father's postjudgment motion, arguing that the father's custodial time should not be increased. The trial court held hearings on the father's postjudgment motion on November 10, 2009, and on December 9, 2009.

The trial court granted the father's postjudgment motion in part, amending the custody award in its judgment. In its amended judgment, the trial court awarded the father and the mother equal custody of the child, with each party having custody on alternating weeks, and eliminated the father's child-support obligation. The trial court also vacated the provision in its judgment finding the father in contempt for failing to contribute toward the payment of the first and second mortgages on the marital residence and for failing to pay child support under the pendente lite order.

The mother subsequently filed a postjudgment motion, moving the trial court to alter, amend, or vacate its amended judgment. In her motion, the mother argued that the trial court had exceeded its discretion in awarding joint physical custody of the child and in failing to award the mother child support. The mother also argued that the trial court's joint-custody award did not comply with § 30–3–153, Ala.Code 1975, because, she said, it did not contain an adequate parenting plan. The mother requested a hearing on her postjudgment motion. The mother appealed to this court on March 1, 2010; the mother's postjudgment motion was denied by operation of law on May 17, 2010.¹ See Rule 59.1, Ala. R. Civ. P.

The mother raises three arguments on appeal: (1) that the trial court erred in awarding the parties joint physical custody of the child; (2) that the trial court's award of joint physical custody did not comply with § 30–3–153; and (3) that the trial court erred because it did not hold a hearing on her postjudgment motion. Because we find the mother's argument regarding the trial court's failure to hold a hearing on the mother's postjudgment motion dispositive, we pretermit discussion of the mother's remaining arguments on appeal.

The mother argues on appeal that the trial court erred when it failed to hold a hearing on her postjudgment motion.

“Rule 59(g), Ala. R. Civ. P., provides that post-judgment motions ‘shall not be ruled upon until the parties have had an opportunity to be heard thereon.’ We have said that if a hearing is requested, it must be granted. Staarup v. Staarup, 537 So.2d 56 (Ala.Civ.App.1988). On appeal, however, if an appellate court determines that there is no...