Nicke v. Minter, 2140619.
| Court | Alabama Court of Civil Appeals |
| Citation | 195 So.3d 274 |
| Docket Number | 2140619. |
| Parties | Robert J. NICKE v. Frank MINTER and Patsy Minter. |
| Decision Date | 02 October 2015 |
195 So.3d 274
Robert J. NICKE
v.
Frank MINTER and Patsy Minter.
2140619.
Court of Civil Appeals of Alabama.
Oct. 2, 2015.
Robert J. Nicke, pro se.
Submitted on appellant's brief only.
DONALDSON, Judge.
Robert J. Nicke (“the father”) appeals from a judgment of the Shelby Circuit Court (“the trial court”) addressing two separately filed actions relating, respectively, to the support of the father's minor children, R.N. and D.N., and to the custody of R.N. The trial court found that the father owes $43,655 in child-support arrearage to the children's maternal grandparents, Frank Minter and Patsy Minter (“the grandparents”). The trial court's judgment also removes custody of R.N. from the father and places custody of that child with the grandparents. In addition, in the case involving the child-support arrearage, the grandparents had sought to have the trial court hold the father in contempt. Because the judgment does not fully adjudicate the grandparents' contempt claim against the father, the judgment, insofar as it addresses the contempt and child support case, is nonfinal, and, as a result, we must dismiss the appeal as to that case. The judgment is final as to the grandparents' separate custody case, however, and that case is properly before us on appeal. Because the record does not show that the father was not fit to have
custody of his own child, we reverse the portion of the judgment regarding custody of R.N., and we remand the cause to the trial court.
Facts and Procedural History
The father and Margaret A. Nicke (“the mother”) have two children, R.N. and D.N. (“the children”). On October 1, 2007, the father and the mother were divorced. The divorce judgment has since been modified several times.
The grandparents intervened in the first modification action. On February 24, 2010, the trial court entered a consent order reached by agreement of all parties. Pursuant to the consent order, the grandparents received “primary” physical custody of the children, the father and the mother were to be “the secondary custodial parents,” and all the parties shared joint legal custody. The father was ordered to pay $1,500 in child support each month to the grandparents, and he agreed to pay the grandparents $12,085 in child-support arrearage.
On March 8, 2011, the trial court entered a judgment placing sole legal and physical custody of the children with the grandparents. The trial court found the father in contempt for interfering with the grandparents' physical custody of the children and for failing to pay his child-support obligation and the child-support arrearage owed to the grandparents. The judgment awarded the grandparents $23,655 in child-support arrearage.
At some point, the State Department of Human Resources (“DHR”) became involved in the custody of the children. The record contains no information as to the circumstances of DHR's involvement. On May 31, 2013, the trial court entered an order in an action in which the father, the mother, the grandparents, and DHR were parties. The order relieved DHR of custody and supervision of the children. In that order, the father received sole physical custody of the children, and the mother and the father were granted joint legal custody. The trial court stated that “[a]ll pending Motions not directly addressed by this Order are denied.”
On June 25, 2013, the grandparents filed a motion to alter, amend, or vacate the May 31, 2013, order. The grandparents requested that the trial court address the child-support arrearage owed by the father to the grandparents. The record does not contain a ruling by the trial court on that motion.
On July 21, 2014, the grandparents filed a contempt petition. The case commenced by the filing of that petition was docketed as case number DR–05–897.06 (“the .06 case”). The grandparents sought payment of the child-support arrearage owed by the father when the children were in their custody and a finding of contempt against the father for willfully failing to pay his court-ordered obligations. On August 15, 2014, the father filed a motion to dismiss the petition and a motion for sanctions. He argued that the grandparents' petition was barred by the doctrine of res judicata, and he sought compensation for legal expenses as sanctions against the grandparents.
On September 15, 2014, the grandparents filed a petition for a modification of custody. The case commenced by the filing of that petition was docketed as case number DR–05–897.07 (“the .07 case”). The grandparents sought custody of R.N. and child support from the father, alleging material and substantial changes in the circumstances since the entry of the May 31, 2013, order.
On October 15, 2014, the trial court conducted a hearing on both the .06 and .07 cases. A judge sitting specially had been appointed to preside over the cases after
the judge originally assigned to the cases recused himself. There is no order in the record consolidating the .06 and .07 cases.
On March 23, 2015, the trial court entered the following judgment:
“The Court, having heard the testimony and argument of Counsel for the [grandparents] and the [father] on the 15th day of October, 2014, and for the relief sought from the [grandparents] on their Petition to modify and their Petition for Rule Nisi pending, the Court finds the following:...
“1. Custody of [R.N.] shall be awarded to the [grandparents]. The [father] shall immediately provide the [grandparents] with an insurance card for the minor child.
“2. [R.N.] shall have visitation with the [father] and the child's sibling at the discretion of the
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...disposition of a party's contempt petition rendered the judgment nonfinal). Accordingly, we dismiss the appeal. See Nicke v. Minter, 195 So.3d 274, 278 (Ala. Civ. App. 2015) (holding that reviewing court had a duty to dismiss the appeal upon a determination that the appealed order was nonfi......
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...of this court extends only to final judgments.'" E.L. v. C.P., 282 So. 3d 867, 870 (Ala. Civ. App. 2019) (quoting Nicke v. Minter, 195 So. 3d 274, 278 (Ala. Civ. App. 2015)). See § 12-22-2, Ala. Code 1975. An order denying a Rule 60(b) motion is a final order, and such an order is appealabl......
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