Collier v. Collier
| Decision Date | 07 January 1976 |
| Citation | 57 Ala.App. 208,326 So.2d 769 |
| Parties | Earlene W. COLLIER (Stephenson) v. L. Wayne COLLIER. Civ. 625. |
| Court | Alabama Court of Civil Appeals |
Volz, Capouano, Wampold & Prestwood, and Al J. Sansone, Montgomery, for appellant.
L. H. Walden, Montgomery, for appellee.
Complainant and respondent were divorced on September 4, 1973.
On December 16, 1974 a substituted decree of the Circuit Court of Montgomery County awarded custody of Tracy M. Collier, age seven, and Dina Adrienne Collier, age eight, to complainant. Respondent was granted annual visitation with the children from June 15 through August 15 and for the AEA or spring holiday. Complainant was required to pre-pay air or automobile transportation costs for the visitation, and further was ordered to pay respondent $400 on June 15 and July 15 of each year.
On May 21, 1975 complainant petitioned for modification, alleging that respondent resides in Indiana, and that she had related to numerous persons that she did not intend to return the children to Alabama after the next visitation, but intended to commence legal action relating to custody in courts foreign to Alabama. On May 23 Judge William Thetford voluntarily recused himself from the action and the case was reassigned to Judge Frank Embry. That same day Judge Embry entered an order setting aside respondent's visitation privileges until June 25, the date appointed for hearing the petition. Respondent moved on June 6 to dissolve this temporary order and have an immediate hearing on the motion.
On July 1, 1975 respondent answered and cross-petitioned for custody of the children. the hearing originally set for June 25 also commenced on July 1. The following day the circuit court issued its decree of modification which left unchanged the custody of the children and the dates of respondent's visitation; extended the visitation for 1975 until August 18; required respondent to post a $10,000 bond to guarantee return of the children; required respondent to pay for transportation; deleted the $400 due respondent on June 15 and July 15; and taxed costs of the proceedings to respondent.
Respondent's assignments of error one through four contend that the May 23 order was issued under conditions inconsistent with Rule 65 ARCP. We feel that respondent is mistaken in equating the order below with a temporary restraining order or preliminary injunction. The provisions governing those devices found in Rule 65 are designed to protect parties in the context of injunctive relief. In the present case we deal with child custody, a matter over which chancery's jurisdiction is continuous, Hayes v. Hayes, 192 Ala. 280, 68 So. 351. The chancellor, having acquired jurisdiction over the children, may make such orders for their well-being as it deems appropriate; the welfare of the children being paramount, the interests of the other parties are secondary, Ex parte Bates, 247 Ala. 391, 24 So.2d 421. The May 23 order was not a Rule 65 order, but was an interlocutory ruling to be reviewed by mandamus, Brady v. Brady, 144 Ala. 414, 39 So. 237, but is not reversible in this appeal.
Respondent argues that the requirement of $10,000 bond to guarantee the return of the children after visitation discriminates against her in violation of the fourteenth amendment to the United States Constitution. However, she cites no authority which would lead us to reject as unconstitutional either the trial court's power of setting bond to protect its jurisdiction over the children, or the general rule that the amount of such bond lies within the sound discretion of the court, Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891; Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561.
On July 11, 1975 this court entered the following decree regarding the bond in question:
'That the requirement of defendant posting a $10,000 bond and that surety thereon be a bonding or surety company or collateral in the form of cash, certificates of deposit or negotiable bonds or securities be set aside and superseded; that defendant Earline W. Collier Stephenson be permitted to exercise the visitation rights granted to her upon her entering into a bond with good and sufficient sureties in the amount of $5,000 to be approved by the Deputy Register with condition that said sum be paid to L. Wayne Collier on proof by him that both of said minor children have not been returned to his custody after the expiration of the visitation period granted.' Alabama Court of Civil Appeals, Civ. 626, July 11, 1975.
Our order of July 11, 1975, regarding the bond, shall remain in effect.
Regarding the remainder of the decree of modification, we hold the trial court in error. Although setting bond to protect the cour's jurisdiction over the children lies with the trial judge's sound discretion, we can find absolutely no authority which permits the withdrawal of child support to accomplish the same purpose. The primary legal and moral duty to support minor children rests with the father, Brock v. Brock, 281 Ala. 525, 205 So.2d 903. The mother can be compelled to contribute to this support only where the father is clearly incapable of providing it, Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660.
The substituted decree of December 16, 1974 had set forth certain child support requirements the father was required to pay: prepayment of...
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Mathews v. Mathews
...Board of Trustees of the Policeman's and Fireman's Retirement Fund v. Cardwell, 400 So.2d 402 (Ala.1981) (citing Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976)). We do not hesitate then in holding that a showing of a lack of total supportive ability, is not necessary in order to ......
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Foster v. Foster
...use these funds to pay for some of the expenses incurred for transportation. This court specifically approved, in Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976), the requirement that the parent with primary custody should pay transportation expenses for the children. See also Whe......
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Board of Trustees of Policemen's and Firemen's Retirement Fund v. Cardwell
...his minor children and if he is unable to provide it, the mother can be compelled to contribute to their support, Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976), that duty has never been applied to a governmental pension fund. The right to a pension is purely statutory. Cox v. Du......
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Jenkins v. Jenkins
...Board of Trustees of the Policemen's and Firemen's Retirement Fund v. Cardwell, 400 So.2d 402 (Ala.1981) (citing Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976)). We do not hesitate, therefore, in holding that where the father has custody as in the instant case, a showing of a lac......