Casey v. Casey
| Decision Date | 29 July 2011 |
| Docket Number | 2090371. |
| Citation | 85 So.3d 435 |
| Parties | Sean G. CASEY v. Jonice Dorriety CASEY. |
| Court | Alabama Court of Civil Appeals |
Alabama Supreme Court 1101311.
John L. Jernigan III and Edward L. McMillan IV of Jernigan & McMillan, P.C., Brewton, for appellant.
William R. Stokes, Jr., of Stokes & Stokes, P.C., Brewton, for appellee.
On Application for Rehearing
This court's opinion of March 4, 2011, is withdrawn, and the following is substituted therefor.
Sean G. Casey ("the former husband") appeals from a judgment of the Escambia Circuit Court modifying his visitation privileges with the parties' child and awarding attorney's fees to Jonice Dorriety Casey ("the former wife").
The former husband and the former wife were married in 1999; in 2000, the former husband reentered military service and was temporarily transferred to Florida. During that time, the former wife resided in Atmore and waited for the former husband to receive a permanent assignment; the parties' child was born in September 2000. The parties never reunited, and, in 2003, they decided to proceed with an uncontested divorce. Although the divorce documents were prepared in 2003, the divorce judgment was not entered until December 2006, in part because the former husband had been sent overseas. The divorce judgment incorporated an agreement of the parties; that judgment awarded physical custody of the parties' child to the former wife, awarded the former husband liberal visitation, and ordered the former husband to pay $500 in monthly child support.
The record reveals that, after leaving military service in June 2003, the former husband took employment with a private security company that sent him to Iraq in July 2004; he did not return to Florida until March 2005. Thereafter, he traveled to Idaho briefly and then returned to Florida until September 2005. At that time, he moved to Pennsylvania to attend school and remained there until June 2007. Subsequently, the former husband remarried and moved to New Jersey, staying there until September 2007, when his employer sent him to Saudi Arabia until February 2008.
In May 2007, the former wife filed an action seeking a judgment declaring that the former husband was in contempt for failing to pay $819 in child support and $2,900 in medical expenses (case no. DR–03–180.01); the former husband was served with the complaint in that action in July 2007. At that time, he was notified that a hearing was set for September 2007, when he was scheduled to be in Saudi Arabia, so he hired an attorney in Bay Minette to represent him and to seek a continuance until his return from overseas. After the September 2007 hearing was continued, the former husband terminated the services of that attorney; however, unknown to the former husband, another hearing had been scheduled for December 13, 2007; nothing in the record indicates that the former husband received formal notification from the trial court of that December hearing date. However, the record does contain a November 2007 e-mail message from the former husband to the former wife in which the former husband acknowledged "knowing" that a December hearing date regarding the unpaid child support and medical bills had been set. The former husband telephoned his current wife in New Jersey and discovered that she had not received any notice of an upcoming hearing, so he "assumed" that there would be no hearing in December 2007. When the former husband returned from Saudi Arabia in February 2008, he received notification of the entry of a default judgment that had been entered against him. That judgment had determined the former husband's child-support arrearage to be $29,000.
The former husband contends that the 2008 judgment is void because he did not have notice that the hearing would review child-support payments back to the date the parties had signed their separation agreement, August 2003, that was subsequently incorporated into a divorce judgment in December 2006. He claims that due process requires that he should have been notified by the trial court that the former wife was not seeking the minimal amount originally alleged in her contempt complaint, i.e., $819 in child support and $2,900 in unpaid medical bills. The record does not indicate that the former wife amended her contempt complaint to reflect any increase in her child-support-arrearage claim; moreover, the record does not reflect that any official notice of the December 2007 hearing was sent to anyone representing the former husband other than the former husband's previous attorney. The record also reflects that the former husband, acting pro se, filed a motion for relief from the default judgment on June 9, 2008.1 Then, on June 25, 2008, the former husband filed a request seeking a modification of visitation, a modification of child support, and the right to claim the child as a dependent for tax purposes and requests concerning the transportation costs of visitation and potential relocation of the parties; that action was assigned case no. DR–03–180.02. The former wife filed an answer; she also filed a counterclaim seeking an order requiring that the former husband be instructed to obtain professional treatment for certain alleged substance-dependency and mental-health issues before being awarded unsupervised visitation with the child.
The trial court conducted a bifurcated ore tenus proceeding to address all pending motions on April 21 and August 31, 2009. During the trial, the former husband and the former wife testified; additionally, the child's maternal aunt testified in support of the former wife's request that the former husband be supervised by members of the former wife's family during future visitation with the child. At the conclusion of the second day of trial, the trial court, without objection from either party, conducted an in camera interview of the child; that interview was not transcribed or made a part of the record on appeal.
On September 30, 2009, the trial court entered a judgment in case no. DR–03–180.02 (the modification action) that purported to deny the former husband's Rule 60(b) motion to set aside the January 2008 judgment in case no. DR–03–180.01 (the contempt action); that judgment also modified the visitation provisions of the parties' divorce judgment and awarded the former husband supervised visitation with the child during specified school vacations. The judgment specifically denied the former husband's requests for a modification of child support, to claim the child as a dependent for tax purposes, and for current and prospective relief as to transportation costs of visitation. In addition, the former husband was ordered to be evaluated by a qualified mental-health professional and to submit to periodic drug testing every 60 days for a specific period; all results of the court-ordered evaluation and tests were to be filed with the trial court during 2010. The trial court scheduled a hearing to review the former husband's supervised visitation for August 2010.2
On October 27, 2009, the former husband filed a postjudgment motion seeking either a new trial or that the trial court alter, amend, or vacate the September 30, 2009, judgment; the trial court denied that motion on December 30, 2009. The former husband filed a timely notice of appeal only in case no. DR–03–180.02 (the modification action) and designated only that action in his notice. The former husband contends that the trial court could not properly deny his Rule 60(b) motion filed in the contempt action. Additionally, the former husband asserts that the trial court, in the modification action, erroneously ordered him to undergo drug testing and a mental-health evaluation in order to obtain supervised visitation with the child. The former husband also contends that the trial court erroneously awarded the former wife an attorney's fee.
As an initial matter, we note that the issues raised by the former husband relating to the denial of his Rule 60(b) motion in case no. DR–03–180.01 (the contempt action) may not be considered because the former husband has not filed a notice of appeal in that action. As noted previously, on September 30, 2009, the trial court, in a judgment entered in case no. DR–03–180.02 (the modification action), purported to deny the former husband's Rule 60(b) motion filed in case no. DR–03–180.01 (the contempt action); however, the former husband filed a notice of appeal only in the modification action. Alabama law is well settled that consolidated actions maintain their separate identities, and separate judgments are to be entered in each action.
H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278 (Ala.Civ.App.2009). Any issues raised by the former husband relating to the purported denial of his Rule 60(b) motion, which was filed in case no. DR–03–180.01 (the contempt action), may not be considered because the former husband has not filed a notice of appeal in that case. Because the former husband, for all that appears in the record, has not filed a notice of appeal in the contempt action, we may not address the correctness of any ruling the trial court may have made regarding the former husband's Rule 60(b) motion in the contempt action.
We now address those issues arising from the former husband's appeal in case no. DR–03–180.02 (the modification action). The former husband asserts that the trial court erred in modifying the parties' divorce judgment to provide that his visitation with the child should occur only when supervised by the former wife or members of her family. Our standard of review is well established:
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