Nichols v. Nichols
| Decision Date | 22 April 1970 |
| Docket Number | 5 Div. 9 |
| Parties | Esau NICHOLS v. Beverly Anderson NICHOLS. |
| Court | Alabama Court of Civil Appeals |
Russell, Raymon & Russell, Tuskegee, for appellant.
Gray, Seay & Langford, Tuskegee, for appellee.
This appeal involves a divorce proceeding between the appellant and appellee.
Appellant, Esau Nichols, filed a bill of complaint in the Macon County Circuit Court, in Equity, on May 16, 1967, seeking a divorce from appellee on the grounds of abandonment.
On December 28, 1967, appellee filed her answer and a cross-bill and prayed that the court order the register to hold a reference to determine what should be allowed her as alimony, child support and solicitor's fees, pending a final hearing in the case.
On December 29, 1967, the trial judge, without ordering the reference to be held or taking any testimony, entered a decree ordering the appellant to pay appellee $150.00 a month, beginning January 5, 1968, as temporary alimony and child support payments, and assessing the cost against appellee.
On May 8, 1968, appellant filed a motion to set aside decree awarding support and alimony pendente lite on the grounds that said decree was null and void, that no reference was held pursuant to the prayer of appellant's answer and cross-bill and petition for reference, that no notice of any hearing was given to appellant, and that the court had no authority to enter a decree awarding temporary alimony and support without holding a hearing giving the appellant an opportunity to be present and be heard.
On May 8, 1968, appellee filed a motion to strike appellant's motion to set aside decree awarding temporary alimony and support on the grounds that appellant was in contempt of court.
The trial court, on May 10, 1968, entered a decree granting the appellee's motion to strike appellant's motion to set aside the decree awarding support and alimony pendente lite and held that appellant was in utter contempt of court. The court further ordered the register to issue a writ for the arrest of the appellant, and taxed him with the court costs. No testimony was taken to support the contempt decree entered on May 10, 1968.
On the trial of the case on March 11, 1969, the court heard the testimony of the appellee, but the court refused to allow appellant's solicitor to cross-examine appellee on the grounds that the appellant was in 'utter contempt' of court. The court also refused to allow appellant to introduce his testimony by deposition.
The trial court, on March 11, 1969, entered a decree of divorce on appellee's cross-bill and ordered appellant to pay appellee alimony, child support, solicitor's fees and court costs. The court also entered a judgment against appellant for $2,250.00 for arrears in temporary child support and alimony, adjudged the appellant in contempt of court for failure to comply with the decree of December 29, 1967, and ordered the register to issue a writ for his arrest.
From this decree, the appellant takes this appeal, and the question to be decided is whether or not the appellant was denied due process of law.
We are not unmindful of the holdings that mandamus is the proper remedy in temporary alimony awards, Ex parte Eubank, 206 Ala. 8, 89 So. 656; and that contempt proceedings are not reviewable on appeal, but by certiorari, Jones v. Jones, 249 Ala. 374, 31 So.2d 81. But, since the trial judge included the judgment of temporary alimony and child support arrears in his final decree of March 11, 1969, and in that same decree adjudged the appellant in contempt of court for failure to comply with the decree of December 29, 1967, we may consider these questions on this appeal.
On December 28, 1967, the appellee filed her answer to appellant's bill of complaint and prayed that a reference be held to determine what should be allowed her as alimony, support of the minor child and solicitor's fees, pending a final hearing in the case. The copy of said answer was served on the appellant's attorney by mailing it that day, but the appellant was stationed with the United States military in California. On December 29, 1967, the very next day, the trial judge awarded the appellee temporary child support and alimony without ordering the reference to be held or without hearing any testimony.
We think that the appellant and his attorneys were lulled into a state of inaction in that they had reason to expect a reference to be held and notice of such. The reason why such reference was not held in compliance with appellee's prayer is not known to us, but regardless, appellant's attorneys had only one day's notice of the cross-bill and no notice that the court would grant relief on the cross-bill without a hearing.
The court in Voss v. Voss, (Fla.App.), 169 So.2d 351, stated as follows:
We have diligently searched but failed to find an Alabama Supreme Court opinion dealing with the question here presented, and the statute authorizing the awarding of alimony and child support pendente lite provides no directions as to procedure. But we think and we so hold that to make such an award without notice and hearing is to deny due process, as was done in this case. The cross-respondent was not given an opportunity to contest the making of an award or make any defense thereto or offer any evidence which might have tended to minimize the award.
As to the trial court's holding the appellant in contempt we follow the ruling of the Florida...
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Personal v. Personal, 2150225
...pendente lite order following the entry of a final judgment in Ex parte Williams, 474 So.2d 707 (Ala. 1985).In Nichols v. Nichols, 46 Ala.App. 67, 238 So.2d 186 (Civ. App. 1970), a husband filed a divorce complaint and the wife counterclaimed for a divorce and sought an award of alimony and......
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Reeder v. Reeder
...a petition for certiorari and entertain the husband's arguments. Armstrong v. Green, 260 Ala. 39, 68 So.2d 834 (1953); Nichols v. Nichols, 46 Ala.App. 67, 238 So.2d 186, cert. denied, 286 Ala. 156, 238 So.2d 190 The scope of review in contempt cases on certiorari is limited to questions of ......
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...is committed out of the presence of the court. Graham v. City of Sheffield, 292 Ala. 682, 299 So.2d 281 (1974); Nichols v. Nichols, 46 Ala.App. 67, 238 So.2d 186; or where all the facts necessary to constitute the contempt are not in the personal knowledge of the judge. Carroll v. State (Al......
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...and is characterized by the act of disobeying the court's orders. Brooks v. Brooks, 480 So.2d 1233 (Ala.Civ.App.1985); Nichols v. Nichols, 46 Ala.App. 67, 238 So.2d 186, cert. denied, 286 Ala. 156, 238 So.2d 190 The elements of "due process" to be afforded an individual charged with indirec......