Ex parte Caldwell

• Decision Date: 27 June 1973
• Docket Number: Nos. C,s. C
• Citation: 280 So.2d 558,50 Ala.App. 508
• Parties: In re Lucille K. MULLIS, formerly Lucille K. Caldwell v. James H. CALDWELL. Ex parte James H. CALDWELL. James H. CALDWELL v. Lucille K. MULLIS, formerly Lucille K. Caldwell. iv. 28, Civ. 104.
• Court: Alabama Court of Civil Appeals

Page 558

280 So.2d 558

50 Ala.App. 508

In re Lucille K. MULLIS, formerly Lucille K. Caldwell v. James H. CALDWELL.

Ex parte James H. CALDWELL.

James H. CALDWELL v. Lucille K. MULLIS, formerly Lucille K. Caldwell.

Nos. Civ. 28, Civ. 104.

Court of Civil Appeals of Alabama.

June 27, 1973.

Pope & Floyd, Ferrell & Bennett, Phenix City, for appellant-petitioner.

Johnson & Avary, Lanett, for appellee.

ON REHEARING

BRADLEY, Judge.

On our original hearing of this cause an opinion was rendered by this court affirming in part the trial court's decree of August 18, 1972 and quashing in part the contempt citation of the same date. Also in that opinion we declined recognition of any appeal taken or attempted to be taken from the decree of the trial court dated March 23, 1972.

Appellant filed application for rehearing pointing out certain alleged errors and arguing that we misconstrued in our original opinion his statements as to other portions of his argument.

Upon further consideration and in light of the application for rehearing, we now conclude that the application for rehearing should be granted and our original opinion set aside. See Holcomb v. Escambia County Hospital, 291 Ala. 114, 278 So.2d 699.

The parties to this appeal were divorced by a final decree of the Circuit Court of Barbour County on the 29th of September 1966. Incorporated into that decree was an agreement of the parties which provides in part as follows:

'6. The Respondent shall, except as otherwise provided herein, pay to the Complaint (sic) for the support and maintenance of each child the sum of $100.00 per month, one-half (1/2) of such payments being due and payable on the 1st day of each month hereafter, until such child marries, dies, or reaches the age of 21 years; if, however, such child shall be in college at the time he or she reaches the age of 21 years, such payments shall continue until such child has finished a normal four years of college; provided, however, that during any months that any such child shall be attending college or school, the sums payable to Complainant by this paragraph shall be governed by Paragraph 7 hereof.

'7. If any of the children of the parties continues their education at a college level, the Respondent shall then pay to the Complainant the entire cost of such education, including room, board, tuition, living and clothing allowance, and a reasonable amount for books, laboratory fees and similar items, in lieu of the provisions in Paragraph 6 above.'

Apparently the terms of the decree were complied with until the latter part of 1969. The appellee wife petitioned the trial court in February 1971 asking for a rule nisi to be issued to the appellant requiring him to pay her certain sums for the support of the oldest child, Carol, who had been a student at Auburn University. A decree was rendered by the court on April 20, 1971, ordering appellant to pay the amount of $1,198.26 then due for the support and maintenance of Carol. Apparently appellant complied with this decree.

On October 13, 1971 appellee again filed a petition in the trial court seeking a rule nisi to be issued to the appellant requiring him to show cause, if any he had, why he should not be held in contempt for failure to comply with the decree of 1966 by providing support and maintenance for his daughter Carol. The rule was issued and the matter was set down for hearing. Thereupon the appellant filed a petition to modify the decree of 1966 mainly on the ground that he was unable to comply with that part of the former decree requiring him to pay Carol's college expenses. Appellant alleged that he had remarried and incurred considerable financial obligations after Carol notified him that she wanted to quit school. Appellant averred that he persuaded his daughter to complete the 1969 fall quarter at Auburn University so that if she wished to return she would be eligible to do so. Carol did complete the fall quarter but dropped out until the winter quarter beginning in January 1971. During the time that she was not in school, Carol worked for the Columbus Ledger-Enquirer. Appellant contends in his petition to modify that since his daughter interrupted her college studies and became self-supporting, he was no longer obligated to support her according to the terms of the 1966 decree.

The appellant's petition to modify was amended, and appellee answered appellant's said petition and amended her petition to show cause. She also filed a petition to modify the 1966 decree mainly to obtain from the court a decree requiring the appellant to pay to her for Carol's college education the sum of $215 per month for the remainder of time it takes Carol to obtain her bachelor's degree.

After a hearing of the complaints on January 14, 1972 the trial court on March 23, 1972 handed down an order which was filed in the register's office on the same day, requiring appellant to pay to appellee the sum of $1,225.27 which had accrued since July 1971, plus any sums which had become due since the date of the hearing on January 14, 1972. The court also ordered that henceforth the appellant would be required to pay toward Carol's education the fixed sum of $200 per month until she receives her bachelor's degree. Attorney's fees were fixed at $375. Appellant was given thirty days to pay one-half of the $1,225.27 and sixty days to pay the remainder.

In this order the trial court also stated that the matter of a final decree in this cause would be held in abeyance for sixty days with jurisdiction being expressly retained for that purpose.

On April 21, 1972 appellant filed application for rehearing of the March 23 order. On April 22, 1972, the thirtieth day following the order of March 23, 1972, an order was entered setting the application for rehearing for hearing on May 8, 1972, and staying or suspending the order rendered March 23 pending ruling on that application.

On May 2, 1972 appellee filed a motion seeking the additional sum of $511.06 as college expenses for the support of Carol accruing since the January 14, 1972 hearing and praying that appellant be punished for contempt of court or a rule nisi be issued.

The matters were consolidated and heard on May 8, 1972.

On May 23, 1972 a petition was filed by appellee seeking additional attorney's fees for services performed pursuant to this cause subsequent to January 14, 1972.

On August 18, 1972 the trial court entered an order denying the application for rehearing; ordering appellant to pay appellee the sum of $1,744.63, expenses for Carol's education; ordering appellant to pay the attorneys of appellee the sum of $1,075 attorney's fees, including the amount allowed in the decree of March 23; citing appellant in contempt for refusing to obey the orders of the trial court; allowing appellant ten days in which to pay the amounts declared to be due; and assessing costs against appellant.

On August 25, 1972 appellant was given an extra eight days in which to pay the amounts declared due.

On September 25, 1972 appellant filed a notice of appeal and bond for costs of the appeal with the register from the order of August 18, 1972.

The appellant had on August 24, 1972 filed in this court a petition asking for the issuance of a writ of certiorari to review and revise the order of the Circuit Court of Barbour County of August 18, 1972 holding him in contempt of court. The writ was issued on August 31, 1972.

By stipulation of the parties, the appeal, motion for attorney's fees and certiorari to review the contempt have been consolidated in this court for decision.

Appeal on the Merits

On original hearing of the appeal to this court, we cited the review sought by appellant as stated by appellant in his brief as follows:

'. . . In the order of august 18, 1972 the court denied the appellant's application for rehearing, ordered that the appellee recover of the respondent the sum of $1,744.63, ordered the appellant to pay the appellee's attorneys the sum of $1,075.00 attorneys fees, which sum included that amount allowed in the decree of March 23, 1972, found that the appellant was in contempt or court, ordered that the appellant be confined in the Barbour County jail unless he complied with the order within ten (10) days, and taxed the proceedings against the appellant. (TR. 17, 18, 19). From the order of August 18, entered by the court, The appellant herein Filed its Petition for common law writ of certiorari To review or revise that portion of the court's order adjudging the appellant in contempt and ordering his confinement and further took an appeal from that portion of the decree of the court Denying the application for rehearing. (TR. 19, 20). This court did grant the motion for common law writ of certiorari and ordered a consolidation with the appeal.' (Emphasis added.)

Taking appellant at his word that appeal was taken only from that portion of the order of August 18 denying the application for rehearing, we then noted that we understood that no appeal was being taken from the order of March 23 and held that a decree overruling an application for rehearing is not appealable.

On rehearing appellant argues that we misunderstood his original intention and that he was appealing from the entire order of August 18 and assigning errors referable to the orders of both August 18 and March 23. As we understand the argument made in support of these contentions, appellant now says that both orders are final decrees; and that where there are two final decrees entered in a cause and an appeal is taken from the second decree before the running of the time for appeal from the first, errors may be assignable referable to each. He also argues that an order overruling an application for rehearing which modifies the original decree is an appealable order.

Assuming, but not deciding, that these arguments are related to each order and applicable to the present case we will, on this basis, examine appellant's assignments of...