O'Neill v. O'Neill

Decision Date31 March 1982
Citation420 So.2d 261
PartiesNancy L. O'NEILL v. William W. O'NEILL. Civ. 2805.
CourtAlabama Court of Civil Appeals

Charles W. Woodham of Halstead, Whiddon & Woodham, Abbeville, for appellant.

J. Gorman Houston, Jr. of Houston & Martin, Eufaula, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

Under the Uniform Reciprocal Enforcement of Support Act (URESA), Nancy L. O'Neill sought to enforce the periodic alimony provisions of a 1977 Georgia divorce judgment which approved an agreement in that respect between her and her then husband, William W. O'Neill. By their settlement contract they expressly reserved any right which either party might have under § 30-220 of the Georgia Code or similar laws of any other state to modify alimony.

Mrs. O'Neill commenced these URESA proceedings in South Carolina, where she presently resides, and the proper documents were duly forwarded to Alabama, the responding state, where Mr. O'Neill now lives. He filed an answer and counterclaim in the district court, juvenile division, where the case was pending. His pleadings stated that he was not paying alimony to his former wife because she is continuously and openly living with her boyfriend in a meretricious relationship and Mr. O'Neill asked to be relieved from his alimony obligations on that account. Mrs. O'Neill personally filed in the district court her handwritten answer and her "counter counter claim" to his counterclaim and she denied such averments. Since the case was at issue, it was set for trial by the court and more than thirty days' notice of the trial date was given to her, but she did not appear for trial. No motion for a continuance or for a delay in the submission of the case until the ex-wife's evidence could be procured by deposition, or otherwise, was made either The trial court's judgment was styled "IN THE CIRCUIT COURT OF BARBOUR COUNTY," but was signed as follows:

by Mrs. O'Neill or on her behalf at any time. No reason appears in the record as to why she was absent at the trial. Mr. O'Neill's evidence was heard orally by the trial court and the case was submitted for a final judgment.

[s] Wm. H. Robertson

WILLIAM H. ROBERTSON

DISTRICT JUDGE

BARBOUR COUNTY, ALABAMA

That judgment expressly found that the court had jurisdiction over the parties, that Mrs. O'Neill is dwelling together continuously and openly in a meretricious relationship with a person of the opposite sex, and that, accordingly, Mr. O'Neill should be relieved from the obligation of paying future periodic alimony pursuant to the laws of both Georgia and Alabama. No posttrial motion was filed by Mrs. O'Neill, who immediately appealed.

She first contends that Judge Robertson, as a district judge, had no authority to enter the final judgment in the circuit court.

We deem the caption on the final judgment to be surplusage when it stated "circuit" court. The case was pending in the juvenile division of the district court where all of the pleadings were apparently filed; it was tried before the district judge; it had never been transferred to the circuit court; and it was signed and rendered by the district judge. It was a judgment of the juvenile court regardless of the erroneous court caption.

Even if the judgment be considered as a circuit court judgment it would have to be upheld. No objection was made in the trial court at any time as to the authority of the trial judge. Thus, all such objections in that connection were waived. We are required to conclusively presume that his selection or appointment was in all respects regular. The lack of authority of the judge to preside over the trial and to render the judgment cannot be raised for the first time upon this appeal. Roberts v. State, 126 Ala. 74, 28 So. 741 (1900); Haynes v. State, 40 Ala.App. 106, 109 So.2d 738 (1959). Even if the judge's blanket authority or authorization to try certain type cases in the circuit court was faulty, he was a de facto judge and his acts as such were valid and unimpeachable. Riley v. Bradley, 252 Ala. 282, 295, 41 So.2d 641, 652 (1949).

It is next suggested that the juvenile court was without jurisdiction over the subject matter, i.e. that it had no authority to entertain a counterclaim so as to terminate periodic alimony on the ground of cohabitation. That position would normally be true, but URESA itself discusses the duty of support IN MANY SECTIONS. §§ 30-4-80, -81(6), -83, -84, -88, -91 and -94, code 1975. The latter section provides that if the court of the responding state finds a...

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9 cases
  • Bushnell v. Bushnell
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 11, 1984
    ...373, 374 (Fla.Dist.Ct.App.1962) (evidence of dissolution of a marriage is relevant in determining duty of support); O'Neill v. O'Neill, 420 So.2d 261, 264 (Ala.Civ.App.1982) (evidence of cohabitation as ground for termination of alimony germane to the question of the duty of support), aff'd......
  • Salt Lake City v. Ohms, 930580
    • United States
    • Utah Supreme Court
    • August 18, 1994
    ...municipal ordinance ... the office is regarded as a de facto office until the act or ordinance is declared invalid"); accord O'Neill v. O'Neill, 420 So.2d 261, 263 (Ala.Civ.App.), aff'd sub nom. Ex Parte O'Neill, 420 So.2d 264 (Ala.1982); Mitchell Mill Remnant Corp. v. Long, 223 Ky. 242, 3 ......
  • Bailey v. Lowndes Cnty. Comm'n
    • United States
    • U.S. District Court — Middle District of Alabama
    • February 14, 2023
  • State ex rel. Quigley v. Quigley
    • United States
    • Florida District Court of Appeals
    • March 16, 1984
    ...cases have either held or intimated that the obligor is responsible under the URESA for alimony as well as child support, see O'Neill v. O'Neill, 420 So.2d 261 (Ala.Civ.App.), aff'd 420 So.2d 264 (Ala.1982); Davidson v. Davidson, 66 Wash.2d 780, 405 P.2d 261 (1965); Weller v. Weller, 14 Ari......
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