Hollingsworth v. Wright

• Decision Date: 10 January 1979
• Citation: 369 So.2d 18
• Parties: James Herbert HOLLINGSWORTH v. Nancy Key Hollingsworth WRIGHT. Civ. 1257.
• Court: Alabama Court of Civil Appeals

Page 18

369 So.2d 18

James Herbert HOLLINGSWORTH v. Nancy Key Hollingsworth WRIGHT.

Civ. 1257.

Court of Civil Appeals of Alabama.

Jan. 10, 1979.

Rehearing Denied Feb. 7, 1979.

James Herbert Hollingsworth, pro se.

Louis P. Moore and W. Allen Grocholski, Fayette, for appellee.

WRIGHT, Presiding Judge.

This is a divorce case. Defendant and cross-claimant husband appeals pro se.

This action began by the wife filing a complaint for divorce, custody, support and alimony and division of property on May 21, 1976. It has continued with unabated fury since that date. There have been motions, counter-motions, petitions for habeas corpus and rules nisi, contempt citations, other pleadings and orders in the trial court totaling some 150 pages in the record. There have been at least four oral hearings with testimony before two judges. Both parties have been held in contempt of court at least once. There has been a prior petition for writ of mandamus filed and argued in this court and denied. It was only after much misuse of the process and time of the trial court that a judgment was entered on November 5, 1976, granting a divorce for incompatibility. That judgment contained a temporary grant of custody and support of the minor child to the mother. Other matters relating to division of property were reserved for future disposition. That judgment also contained a prohibition against the mother associating with her alleged lover. Such prohibition had been a part of prior temporary orders of custody and had precipitated charges by the husband of violations with hearings as to contempt of court. Its inclusion in the judgment of November 5 caused a continuation of charges, counter-charges and hearings thereafter.

On January 10, 1977, the judge who had previously had the case, heard the oral testimony and entered the prior judgments and orders retired from the bench. Immediately thereafter the parties began to file petitions for rule nisi to be heard before the succeeding judge. These petitions were set for hearing on February 24, 1977.

At the hearing before the court on February 24, 1977, after discussion between the judge and counsel for both parties, in the presence of the parties, concerning the pending pleadings, the judge stated into the record that by agreement of counsel he was going to talk with the 8-year-old minor child of the parties in camera. Upon return to open court, the judge observed that he understood there had been a disturbance between the parties while he was away. In paraphrase, he said that the hearing apparently was to be a continuation in court of the bickering, allegations and counter-allegations which had previously gone on out of court; that the court was being used to get on record such accusations and counter-accusations. The judge then gave counsel five minutes to consult with their clients. Thereafter, each counsel on behalf of his client admitted to failure to comply with prior orders of the court. Each was found in contempt and assessed punishment.

At this time the judge stated to counsel that he had already listened to extensive testimony and intended to listen to it all. After doing so, he would issue a final order in the case which would supersede any prior orders. The court made this statement in response to a complaint by the wife's attorney of the unconstitutionality of the order of the prior judge of November 5, 1976, restraining the wife from associating with or being in the company of her alleged lover.

It is alleged by counsel for the wife in brief that it was orally agreed in court by both counsel at that time that a final order relating to the matters not finally decreed in the judgment of November 5, 1976 might be entered by the judge after listening to the testimony then on tape taken at prior hearings before the preceding judge. The record does not disclose such agreement. However, as can be seen, the judge stated his intention and neither defendant nor counsel entered objection. Counsel for plaintiff had previously moved for entry of a final decree on January 28, 1977.

Thereafter, on March 25, 1977, defendant through counsel moved that a final order of custody be entered amending the temporary order of November 5, 1976 and granting custody of the child to the paternal grandmother. That motion was answered by plaintiff on April 19. On June 14, 1977, the court entered a final judgment as to custody, support and division of marital property, both real and personal.

Defendant pro se first contends that the judgment of June 14, 1977 was rendered as a result of a post trial motion under Rule 59.1 of the Alabama Rules of Civil Procedure and more than ninety days expired between motion and judgment. We find no basis for defendant's contention. There was no post-trial motion made by either party within the meaning of Rule 59.1. The Rule applies only to post-trial motions filed under Rules 50, 52 and 59. Cockrell v. World's Finest Chocolate Co., Inc., 349 So.2d 1117 (Ala.1977).

Defendant next contends that the judgment of June 14, 1977 reversed the judgment of November 5, 1976. The contention is without foundation. The matters made final by the judgment of November 5 were not altered by the judgment of June 14, 1977. The latter judgment merely made final...