Johnson v. Taylor

CourtAlabama Court of Civil Appeals
Writing for the CourtYATES.
Citation770 So.2d 1103
PartiesRoy Mitchell JOHNSON v. Kathy Barnes Johnson TAYLOR; and Frances Johnson, intervenor.
Decision Date05 November 1999

770 So.2d 1103

Roy Mitchell JOHNSON
v.
Kathy Barnes Johnson TAYLOR; and Frances Johnson, intervenor

2980563.

Court of Civil Appeals of Alabama.

November 5, 1999.

Rehearing Denied January 7, 2000.


Roy O. McCord of McCord & Martin, Gadsden, for appellant.

Clarence F. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellees.

YATES, Judge.

Roy Mitchell Johnson ("the father") and Kathy Barnes Johnson Taylor ("the mother") were divorced in 1980. The trial court awarded custody of the parties' minor daughter to the mother; granted the father visitation; and ordered the father to pay child support. In 1982, the court modified

770 So.2d 1104
the order, awarding custody to the father, with visitation rights to the mother

Until 1994, the child actually lived with her paternal grandparents and not with the father. In April 1994, the paternal grandparents asked the court to grant them reasonable visitation, after the father had threatened to take the child out of the state. The trial court entered an ex parte order, awarding the grandparents visitation rights pendente lite and restraining the father from removing the child from the state. The court stated in its order that either party could petition for a final hearing.

The grandparents filed a subsequent petition on May 12, 1994, seeking custody of the child. In that petition, the grandparents requested the court to order the sheriffs department to assist them in recovering personal items and a pet of the child's from the father's house after the father had refused to allow the child to have her medicine, school books, and cat, and had threatened to give her things to a charity. The grandparents also asked that the father be restrained and enjoined from impairing the child's right and entitlement to the benefits of the "PACT" program ("Wallace-Folsom Prepaid [Affordable] College Tuition Trust Fund", see §§ 16-33C-1 to -8).

The trust fund is designed to assist payment of college tuition costs by allowing a person to purchase PACT contracts in advance of a child's attending college. The PACT program obligates the state to pay tuition in accordance with the contract if the minor child attends a state college or university. § 16-33C-1. The purchase price of a PACT contract is determined actuarially. § 16-33C-6(f). Payments received become public funds, which the state invests to generate assets to fund the child's education. § 16-33C-6(d).

The grandparents filed their petition for custody after the father had demanded the money in the child's PACT account and had stated that he never wanted to see the child again. According to the petition, the father stated that he would dispose of all of the child's things on May 14, 1994, if he was not given access to the PACT account.

On May 12, 1994, the trial court entered an order enjoining the father from disposing of the any of the child's personal items, allowing the child to retrieve all her personal items and her pet, and enjoining the father from impairing in any manner the child's right and entitlement to her PACT account "until the further orders of this court." The court ordered that the father be served with the order. No action was taken on the grandparents' request for custody.

On May 25, 1994, the trial judge recused himself.

On June 17, 1994, the father moved to set aside the ex parte orders previously entered, alleging that the orders did not comply with Rule 65, Ala. R. Civ. P., and the general guidelines of the 16th Judicial Circuit regarding ex parte orders. That same day, the judge newly assigned to hear the case set the motion for a hearing on August 4, 1994. The hearing was later continued until September 21, 1994.

After the hearing, the trial court, on October 19, 1994, entered an order stating:

"Pending a final hearing on the issue of custody of the minor child ..., temporary custody shall remain in ... paternal grandparents of said minor child.
"No further petitions shall be filed or orders issued without notice to opposing Counsel and parties."

On December 14, 1995, the trial court entered the following order:

"This case appearing on the dispositional `Hoss' Docket and no action having been taken by this date,
"It is therefore ordered, adjudged, and decreed that said case be and the same is hereby dismissed."

Without the knowledge of the child or the grandparents, the father, on December 6, 1996, removed the money from the

770 So.2d 1105
child's PACT account—$7,684.53—and spent it for...

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8 practice notes
  • Perdue v. Green, 1101337 and 1101506.
    • United States
    • Supreme Court of Alabama
    • April 19, 2013
    ...Investment Plan, see §§ 16–33C–1 to 8, Ala.Code 1975. As explained by the Court of Civil Appeals in [127 So.3d 349]Johnson v. Taylor, 770 So.2d 1103 (Ala.Civ.App.1999), the purpose of the PACT program is “ ‘to assist payment of college tuition costs by allowing a person to purchase PACT con......
  • Perdue ex rel. Perdue v. Green, 1101337
    • United States
    • Supreme Court of Alabama
    • March 16, 2012
    ...Savings Investment Plan, see §§ 16-33C-1 toPage 3-8, Ala. Code 1975. As explained by the Court of Civil Appeals in Johnson v. Taylor, 770 So. 2d 1103 (Ala. Civ. App. 1999), the purpose of the PACT program is"'to assist payment of college tuition costs by allowing a person to purchase PACT c......
  • Perdue v. Callan Assocs., Inc. (Ex parte Callan Assocs., Inc.), 1081683.
    • United States
    • Supreme Court of Alabama
    • January 20, 2012
    ...College Savings Investment Plan, see §§ 16–33C–1 to –8, Ala.Code 1975. As explained by the Court of Civil Appeals in Johnson v. Taylor, 770 So.2d 1103 (Ala.Civ.App.1999), the purpose of the PACT program is “to assist payment of college tuition costs by allowing a person to purchase PACT con......
  • Perdue v. Callan Assocs. Inc., 1081683
    • United States
    • Supreme Court of Alabama
    • September 9, 2011
    ...College Savings Investment Plan, see §§ 16-33C-1 to -8, Ala. Code 1975. As explained by the Court of Civil Appeals in Johnson v. Taylor, 770 So. 2d 1103 (Ala. Civ. App. 1999), the purpose of the PACT program is"to assist payment of college tuition costs by allowing a person to purchase PACT......
  • Request a trial to view additional results
8 cases
  • Perdue v. Green, 1101337 and 1101506.
    • United States
    • Supreme Court of Alabama
    • April 19, 2013
    ...Investment Plan, see §§ 16–33C–1 to 8, Ala.Code 1975. As explained by the Court of Civil Appeals in [127 So.3d 349]Johnson v. Taylor, 770 So.2d 1103 (Ala.Civ.App.1999), the purpose of the PACT program is “ ‘to assist payment of college tuition costs by allowing a person to purchase PACT con......
  • Perdue ex rel. Perdue v. Green, 1101337
    • United States
    • Supreme Court of Alabama
    • March 16, 2012
    ...Savings Investment Plan, see §§ 16-33C-1 toPage 3-8, Ala. Code 1975. As explained by the Court of Civil Appeals in Johnson v. Taylor, 770 So. 2d 1103 (Ala. Civ. App. 1999), the purpose of the PACT program is"'to assist payment of college tuition costs by allowing a person to purchase P......
  • Perdue v. Callan Assocs., Inc. (Ex parte Callan Assocs., Inc.), 1081683.
    • United States
    • Supreme Court of Alabama
    • January 20, 2012
    ...College Savings Investment Plan, see §§ 16–33C–1 to –8, Ala.Code 1975. As explained by the Court of Civil Appeals in Johnson v. Taylor, 770 So.2d 1103 (Ala.Civ.App.1999), the purpose of the PACT program is “to assist payment of college tuition costs by allowing a person to purchase PACT con......
  • Perdue v. Callan Assocs. Inc., 1081683
    • United States
    • Supreme Court of Alabama
    • September 9, 2011
    ...College Savings Investment Plan, see §§ 16-33C-1 to -8, Ala. Code 1975. As explained by the Court of Civil Appeals in Johnson v. Taylor, 770 So. 2d 1103 (Ala. Civ. App. 1999), the purpose of the PACT program is"to assist payment of college tuition costs by allowing a person to purchase......
  • Request a trial to view additional results

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