CDS v. KSS

• Decision Date: 02 March 2007
• Docket Number: 2050873.
• Citation: 963 So.2d 125
• Parties: C.D.S. v. K.S.S.
• Court: Alabama Court of Civil Appeals

963 So.2d 125

C.D.S. v. K.S.S.

2050873.

Court of Civil Appeals of Alabama.

March 2, 2007.

Charles D. Decker, Dothan, for appellant.

John C. White of Cobb, Shealy, Crum, Derrick & Pike, P.A., Dothan, for appellee.

Amy M. Shumate, Dothan, guardian ad litem.

PER CURIAM.

C.D.S. ("the father") appeals a purported judgment entered by the Houston Juvenile Court on July 20, 2006, in its cases docketed as case no. JU-06-18 and case no. JU-06-19 insofar as that judgment (1) awarded K.S.S. ("the mother") primary physical custody of one of the parties' minor children, namely R.P.S., and (2) ordered the father to pay the mother's attorney an attorney's fee in the amount of $4,325 together with costs in the amount of $455.62. The father also appeals a contempt judgment entered against him by the Houston Circuit Court in its case docketed as case no. DR-03-752.02, a case that was later transferred to the juvenile court and consolidated with case no. JU-06-18 and case no. JU-06-19. Because we lack jurisdiction, we dismiss the father's appeal with instructions to the juvenile court.

The record on appeal does not contain any pleadings or orders dated earlier than August 9, 2005; however, the juvenile court's purported judgment recites that the Houston Circuit Court entered a judgment divorcing the father and the mother on January 18, 2005. The juvenile court's purported judgment further recites that, in accordance with a settlement agreement entered into by the parties, the divorce judgment awarded the parties joint legal custody of their two daughters, K.S., who was born in September 1991, and R.P.S., who was born in October 1997; awarded the father primary physical custody of both daughters; and awarded the mother visitation.

The first pleading in the record on appeal is a petition ("the contempt petition") the mother filed with the Houston Circuit Court on August 9, 2005, seeking an order finding the father in contempt for, among other things, allegedly interfering with her visitation rights. The contempt petition also sought pendente lite custody of the children. The circuit court docketed the postdivorce proceeding initiated by the mother's contempt petition as case no. DR-03-752.02. On August 11, 2005, the circuit court entered a pendente lite order stating, in pertinent part, "that the mother shall become the primary physical custodian of her minor child R.P.S. . . . for court ordered visitation. . . ."

Answering the mother's contempt petition on August 31, 2005, the father denied that he was guilty of contempt. The father also counterpetitioned the circuit court to suspend the mother's visitation rights based on his allegations that, among other things, the mother had inappropriately taken baths with the younger daughter, had used foul and abusive language in addressing the children, and had prevented the children from talking to the father on the telephone when the children were visiting the mother.

The circuit court held a hearing on the mother's contempt petition on September 1, 2005. On September 9, 2005, the circuit court entered an order deferring a ruling regarding the mother's contempt petition, revising the mother's visitation schedule with respect to the older child, and requiring the parties to attend counseling.

On December 12, 2005, the mother amended her contempt petition to request, among other things, that the circuit court modify the divorce judgment to award her primary physical custody of the children. That same day, the circuit court entered an order awarding the mother temporary custody of the children from December 17, 2005, until December 24, 2005. On December 16, 2005, the circuit court appointed attorney Amy Shumate to serve as the children's guardian ad litem.

On January 13, 2006, the guardian ad litem filed petitions with the Houston Juvenile Court seeking a finding that the children were dependent. The guardian ad litem based her petitions on the allegations of misconduct the mother and the father had made against one another in the circuit court proceeding. The juvenile court docketed the dependency proceedings initiated by the guardian ad litem's petitions as case no. JU-06-18 and case no. JU-06-19.

On January 17, 2006, the circuit court received additional ore tenus evidence regarding the mother's contempt petition and also received ore tenus evidence regarding the father's counterpetition seeking the suspension of the mother's visitation rights. On January 19, 2006, the circuit court entered an order stating, in pertinent part:

"Upon hearing the testimony, the court finds that the said minor children, K.S. and R.P.S., are the subject of serious controversy between their parents regarding visitation for the mother, K.S.S., which is causing emotional harm to the said children.

"THEREFORE, the court finds that the children are dependant and temporary custody is hereby placed with the Department of Human Resources.¹

"The Court further finds that the father, C.D.S., is in contempt of this court's order for willfully failing to abide by this court's visitation orders of September 9, 2005 and December 12, 2005.

"Costs, attorney's fees and guardian ad litem fees are taxed to the father. The mother's attorney and the guardian ad litem to file affidavits of attorney's fees within 30 days of the date of this order.

"The court reserves jurisdiction to assess further sanctions."

That same day, the circuit court, acting ex mero motu, entered another order transferring case no. DR-03-752.02 to the juvenile court.²

On February 2, 2006, the father challenged the circuit court's January 19, 2006, order finding the children to be dependent and finding him in contempt by filing a Rule 59, Ala. R. Civ. P., motion with both the circuit court and the juvenile court. The father's motion also challenged the circuit court's separate January 19, 2006, order transferring the case to juvenile court. The circuit court transferred to the juvenile court the Rule 59 motion the father had filed with the circuit court. On March 14, 2006, the juvenile court heard the father's Rule 59 motion and conducted a review of the children's custody arrangements. That same day, the juvenile court entered an order returning physical custody of the children to the father; maintaining legal custody in the Department of Human Resources ("DHR"); and denying, as moot, the guardian ad litem's petitions to find the children dependent. On March 17, 2006, the juvenile court entered another order reiterating the rulings in its March 14 order and, in addition, denying the father's Rule 59 motion challenging the orders of the circuit court finding the children to be dependent, finding the father to be in contempt, and transferring the circuit court case to the juvenile court.

The juvenile court then held a hearing on July 18, 2006, regarding the mother's petition seeking a modification of custody. After receiving ore tenus evidence, the juvenile court entered a purported judgment on July 20, 2006. That purported judgment states, in pertinent part:

"Upon . . . hearing the testimony and considering the evidence adduced herein and the evidence in prior hearings of this court, the court finds that the mother's petition is due to be granted.

"The court finds that the father has continued in a pattern of conduct to alienate the affections of the children from their mother by emphasizing the flaws and shortcomings of the mother such that the mother cannot discipline the children when in her presence. He has succeeded in the alienation of the oldest child, K.S., and it would be detrimental to her emotional well-being for her to be forced to visit her mother. Therefore, DHR is relieved of custody of K.S. and she is remanded to the custody of her father.

"The court finds that the father is not a fit and proper person to have custody of R.P.S. and that it would be detrimental to her emotional wellbeing should the child continue to be placed with him. Therefore, DHR is ordered to remove the child from the father's home and place the child with the mother. . . . Upon removal of the child to the home of the mother, DHR is relieved of custody and the child is remanded to the custody of mother, K.S.S.

"The parties, their families and the children shall not have any further contact with each other except through their attorneys and the guardian ad litem. At such time that the parties and families feel that they can cooperate, then the court will consider verified petitions for visitation.

"The court finds that the father has willfully violated the visitation orders and decrees of this court and has literally thumbed his nose at this court's orders.

"The father is ordered to pay to mother's attorney the sum of $455.62 as costs and the further sum of $4,325 as reasonable attorneys fees within 30 days of this order."

On July 24, 2006, the father appealed to this court. The next day, the father moved this court to stay the execution of the juvenile court's purported July 20, 2006, judgment pending resolution of his appeal; this court granted that motion.

On July 28, 2006, the guardian ad litem petitioned the juvenile court to enter an order determining the physical custody of R.P.S. pending resolution of the father's appeal. In response to that motion, the juvenile court entered an order on August 3, 2006, awarding legal custody of R.P.S. to DHR and awarding physical custody to the mother.

The father then moved this court to vacate the juvenile court's August 3, 2006, order. After receiving responses to the father's motion to vacate from the mother, DHR, and the guardian ad litem, this court entered an order that, among other things, granted the father's motion to vacate the August 3, 2006, order and ruled that the juvenile court's March 14, 2006, order should govern the custody of the children pending the resolution of this appeal.

On appeal, the father first argues that the juvenile court, in its purported judgment of July 20, 2006, erred...