Marler v. Lambrianakos

Decision Date08 October 2021
Docket Number2200269
PartiesMelissa Marler v. Julie L. Lambrianakos
CourtAlabama Court of Civil Appeals

Appeal from Madison Circuit Court (DR-17-504.01)


These parties have been before this court on two previous occasions. In Marler v. Lambrianakos, 281 So.3d 415 (Ala. Civ. App. 2018) ("Marler I"), Julie Lambrianakos ("the paternal grandmother") filed an action in the Madison Circuit Court ("the trial court") against Melissa Marler ("the mother") in which she registered in the trial court a July 31, 2017 judgment of Family Court of Kings County, New York ("the New York judgment"). The New York judgment awarded the paternal grandmother visitation with her granddaughter ("the child"), who was born of the mother's marriage to John Michael Lambros, the paternal grandmother's late son.

In her 2017 action, the paternal grandmother also sought to enforce the visitation provisions of the New York judgment. The trial court entered an order on February 18, 2018, confirming the August 2017 registration of the New York judgment in that court; it later certified that order as final pursuant to Rule 54(b), Ala. R. Civ. P. Marler I, supra. The mother appealed the February 18, 2018, order to this court which affirmed the order. Marler I, supra. In our opinion, this court noted, among other things, that the mother is an attorney licensed to practice in Alabama, that she had unsuccessfully attempted to avoid service in New York of the paternal grandmother's grandparent-visitation action before leaving New York to relocate to Alabama, that she had failed or refused to participate in much of the New York litigation, and that she had either ignored or failed to comply with court orders in the New York litigation. This court stated, among other things, that "[i]t is clear that the mother has resisted visitation between the paternal grandmother and the child at least since the filing of the grandparent-visitation action." Marler I, 281 So.3d at 430.

In late March 2018, while the appeal in Marler I, supra, was still pending before this court, the mother filed an "emergency" petition in the trial court seeking to modify the New York judgment. The paternal grandmother filed a counterclaim seeking to have the mother held in contempt for refusing to allow, or for interfering with, her court-ordered visitation with the child, and she sought to dismiss the mother's modification claim; she also later amended her pleadings. The trial court entered an order on May 14, 2019, in which it granted the paternal grandmother's motion to dismiss the mother's modification claim. The trial court immediately, on May 15 2019, entered an order scheduling a hearing on the paternal grandmother's pending contempt claims, and it later entered an order requiring the mother to appear to show why she should not be held in contempt. In spite of the orders scheduling the paternal grandmother's counterclaims for a hearing, on July 25, 2019, the mother filed a notice of appeal to this court from the trial court's May 14, 2019 order dismissing her modification claim. That appeal was assigned appeal number 2180881. We note that, in appeal number 2180881, the paternal grandmother argued, among other things, that the mother had filed that appeal from the nonfinal May 14, 2019, order as a delay tactic. On December 13, 2019, this court issued an order dismissing appeal number 2180811 on the basis that it had been taken from a nonfinal order because of the pendency of the paternal grandmother's contempt counterclaims. Marler v. Lambrianakos (No. 2180881, Dec. 13, 2019), 312 So.3d 804 (Ala. Civ. App. 2019)(table)("Marler II").

After this court's dismissal of the appeal in Marler II, the action proceeded in the trial court. The parties engaged in numerous discovery disputes, and the contempt hearing was rescheduled several times.

The trial court conducted an ore tenus hearing over the course of three days -- September 15, 2020, through September 17, 2020. At the close of the contempt hearing on September 17, 2020, the trial court orally found the mother in criminal contempt for preventing or interfering with the paternal grandmother's visitation on 155 separate occasions. The trial court sentenced the mother to 5 days of incarceration for each of the 155 occasions, for a total sentence of 775 days, and it ordered the mother to be immediately incarcerated. The next day, September 18, 2020, the order committing the mother to incarceration was formally entered in the record.

On September 22, 2020, the trial court entered a judgment finding the mother in contempt, enforcing the paternal grandmother's right of visitation as set forth in the New York judgment, and ordering that the paternal grandmother be allowed additional days of visitation during certain periods, including during the summer of 2021, to "make up" for the visitation the mother had denied the paternal grandmother. Also on September 22, 2020, the trial court entered a separate order suspending 410 days of the mother's total sentence for criminal contempt and ordering her to serve 365 days of that sentence.

On September 25, 2020, the trial court entered an order releasing the mother from incarceration and suspending the rest of the remaining sentence for criminal contempt. In that order, the trial court based its ruling on an "agreement of zero tolerance." In an October 1, 2020, order entered after a status conference, the trial court explained that the parties had reached an agreement, apparently concerning the mother's incarceration. The trial court stated:

"The remaining days of the [mother's] incarceration (747 days) are suspended following her release upon strict compliance with the Orders of this Court and those issued in New York. This Court is adopting a zero-tolerance policy with respect to compliance, and even if the parties agree to a suspension of days to serve for any future violations, the parties are specifically advised that this Court is inclined to not suspend any further days if there are any future violations of Court orders."

In its October 1, 2020, order, the trial court directed that the child be treated by a specific counselor and provided that both the mother and the paternal grandmother could present a "position statement" to that counselor detailing their respective concerns for and about the child.

The mother filed a postjudgment motion with respect to the September 22, 2020, judgment, and she later filed an amendment to that postjudgment motion. The trial court entered a December 2, 2020, postjudgment order in which it modified certain provisions of the September 22, 2020, judgment pertaining to its findings of criminal contempt, but denied the remainder of the mother's postjudgment motion. The mother timely appealed to this court, and this appeal was assigned appeal number 2200269.

On May 6, 2021, before briefing had been completed in this appeal, the mother filed a motion to stay enforcement of portions of the September 22, 2020, judgment that awarded the paternal grandmother summer visitation with the child. This court issued an order on May 13, 2021, granting the motion for a stay pending further orders of the court and calling for a response to that motion. The paternal grandmother filed an opposition to the mother's motion. On May 19, 2021, this court issued an order denying the mother's motion to stay the summer visitation awarded to the paternal grandmother. We take judicial notice of the records in Marler I, supra, and in Marler II, supra, as well as the documents and evidence filed in support of and in opposition to the mother's motion for a stay while this appeal was on submission. See Ex parte Smalls, 244 So.3d 102, 103 n. 4 (Ala. Civ. App. 2017) (quoting City of Mobile v. Mathews, 220 So.3d 1061 (Ala. Civ. App. 2016)) (" '[A] court may take judicial notice of its own records.' ").

Jurisdiction to Modify the New York Judgment

The mother argues on appeal that the trial court erred in entering its May 14, 2019, order dismissing her claim seeking to modify the New York judgment awarding the paternal grandmother visitation. The mother contends that the trial court had jurisdiction under Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, to modify the New York judgment.

Initially we note that the registration of the New York judgment in Alabama did not confer upon the trial court jurisdiction to modify that judgment. § 30-3B-306(b), Ala. Code 1975 ("A court of this state shall recognize and enforce, but may not modify, except in accordance with Article 2 [of Alabama's version of the UCCJEA], a registered child custody determination of a court of another state."). The UCCJEA and the Parental Kidnaping Prevention Act ("the PKPA"), 28 U.S.C. § 1738A, govern disputes regarding child custody and visitation. When there is a conflict between the PKPA and the UCCJEA, the PKPA governs because it is a federal statute. Stanley v. State Dep't of Hum. Res., 567 So.2d 310, 311 (Ala. Civ. App. 1990). The PKPA provides:

"(h) A court of a State may not modify a visitation determination made by a court of another State unless the court of the other State no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination."

28 U.S.C. § 1738A(h) (emphasis added). Thus, under the facts of this case, the trial court could not exercise jurisdiction to modify the New York judgment unless the New York court no longer had jurisdiction to modify its judgment or had declined to exercise that jurisdiction.

Under § 1738A(d) of the PKPA, a state that has a made a child-custody determination in compliance with that statute retains continuing...

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