Placey v. Placey

• Decision Date: 11 June 2010
• Docket Number: 2090223.
• Citation: 51 So.3d 374
• Parties: Jill PLACEY v. Laurie PLACEY.
• Court: Alabama Court of Civil Appeals

51 So.3d 374

Jill PLACEY

v.Laurie PLACEY.

2090223.

Court of Civil Appeals of Alabama.

June 11, 2010.

J. Flint Liddon, Birmingham, for appellant.

Warren "Bo" Burke, Jr., of Klasing & Williamson, P.C., Birmingham, for appellee.

THOMAS, Judge.

In November 2007, Laurie Placey ("the mother") filed a protection-from-abuse ("PFA") petition pursuant to the Protection from Abuse Act, codified at Ala.Code 1975, § 30-5-1 et seq. ("the PFAA"),¹ against Jill Placey ("the daughter") in the Family Court Division of the Jefferson Circuit Court. ² In her petition, the mother alleged that the 28-year-old daughter lived with the mother and John Placey ("the father"), that the daughter had pushed the mother, that the daughter had thrown frozen food at the mother, and that the daughter had threatened to kill both her parents by specific, detailed methods. The mother further alleged that the daughter was mentally ill, suffering from "treatment-resistant depression" and borderline-personality disorder.

After a trial, the trial court entered a PFA order on March 27, 2008, restraining the daughter from committing further acts of abuse or threatening further abuse and from having any contact with the mother. The order also prohibited the daughter from "annoying, telephoning, contacting, or otherwise communicating, directly or indirectly, with the mother" and restrained the daughter from "transferring, concealing, encumbering, or otherwise disposing of any specified property mutually owned or leased by the parties." The order further excluded the daughter from the mother's residence. The PFA order was set to expire on March 27, 2009.

The record reflects that litigation over the PFA order continued and that the daughter, in two "motions for consideration," requested that certain property, includingfurniture, photographs, a video camera, a snake, a dog named Preston, and a quarter horse and all the tack related to that horse, be returned to her. In February 2009, the mother filed a motion to extend the existing PFA order for an additional period. See § 30-5-7(e)(2) (permitting a trial court to "continue" a PFA order for a definite period upon motion and a showing of cause). The trial court held another hearing, after which it extended the PFA order in effect to March 24, 2010.

On July 28, 2009, the mother filed a motion requesting that the trial court hold the daughter in contempt for violating the PFA order. The mother alleged that the daughter's fiancé, Michael Witcher, had forcibly removed the family dog, Preston, from the mother's possession while the mother was out walking Preston. The mother further alleged that Witcher then had placed Preston into the automobile in which the daughter was waiting and had driven away.

On July 30, 2009, the trial court rendered an order in which it stated that "[the] Court must now state and order that the ownership of the dog, Preston, has been discussed at every hearing and now [the Court] put[s] down in writing what has been verbally ordered: that [the mother and the father] have OWNERSHIP of Preston." This order was entered on August 6, 2009. On August 31, 2009, the trial court entered an order requiring the daughter to return Preston to the mother.

On September 3, 2009, the daughter moved to have the trial court certify the August 6, 2009, order as a final judgment, pursuant to Rule 54(b), Ala. R. Civ. P. The trial court did so on September 9, 2009. The daughter then timely appealed to this court.³ The mother's contempt motion, which had been set for a hearing on August 11 and again on August 26, 2009, was repeatedly continued and had not been ruled on as of the date the notice of appeal was filed.

The daughter makes two arguments on appeal. She argues first that the evidence at trial did not support the conclusion that the mother owned Preston. Her second argument is that the trial court lacked the authority to determine the permanent disposition of personal property under the PFAA.

We will first consider the daughter's second argument—that the trial court lacked the authority to determine the permanent disposition of personal property under the PFAA. The daughter relies on the stated purposes of the PFAA to argue that "the Legislature never intended for the PFAA to be a remedy for all criminal and civil disputes among the parties" to a PFA action. She further argues that the filing of a PFA petition does not "grant the trial court subject-matter jurisdiction for the permanent distribution of personal property."

The purposes of the PFAA are set out in Ala.Code 1975, § 30-5-1(b):

"(b) This chapter shall be liberally construed and applied to promote all of the following purposes:

"(1) To assure victims of domestic violence the maximum protection from abuse that the law can provide.

"(2) To create a flexible and speedy remedy to discourage violence and harassment against family membersor others with whom the perpetrator has continuing contact.

"(3) To expand the ability of law enforcement officers to assist victims, to enforce the law effectively in cases of domestic violence, and to prevent further incidents of abuse.

"(4) To facilitate equal enforcement of criminal law by deterring and punishing violence against family members and others who are personally involved with the offender.

"(5) To recognize that battering is a crime that will not be excused or tolerated.

"(6) To provide for protection orders to prevent domestic abuse and provide for court jurisdiction and venue; to provide for court hearing for petitions for relief; to provide for the contents and the issuance of protection orders; and to provide penalties for violations of protection orders."

Based on these "limited" purposes of the PFAA, the daughter contends that the PFAA was never intended to facilitate the disposition of the property of parties involved in PFA actions. She further points out that the temporary nature of a PFA order, which under § 30-5-7(e)(1) is limited to one year, although it may be extended for a definite period pursuant to § 30-5-7(e)(2), also supports the conclusion that a permanent determination of the ownership of property was not intended to be made in a PFA action. The disposition of property, the daughter says, should be handled in a appropriate action in an appropriate court, separate and apart from the PFA action.

Although a determination of ownership of property is not a stated purpose of the PFAA, that alone does not decide the question whether a court considering a PFA action has the authority to determine the ownership of specific personal property.⁴ The court deciding a PFA action has the power to make an order that, among other things, "[p]rohibit[s] the defendant from transferring, concealing, encumbering, or otherwise disposing of specified property mutually owned or leased by the parties." § 30-5-7(c)(10). The court is also specifically given the broad power to "[o]rder other relief as it deems necessary to provide for the safety and welfare of the plaintiff...." § 30-5-7(c)(9). Because the Jefferson Family Court was acting in its capacity as a circuit court in its exercise of jurisdiction over the PFA action, that court would have had the same jurisdiction as a circuit court to consider, together with the PFA action, an action seeking to establish title to personal property, such as a detinue action. See § 30-5-3(b)(1) (stating that a PFA action may be joined with any other civil action).

The trial court's August 6, 2009, order indicated that the ownership of Preston had been an issue in the litigation since its inception. In fact, the daughter had filed "motions for consideration" in which she had requested that the trial court award her various items of personal property, including Preston. The transcript of the March 2009 hearing contains much testimony concerning the personal property the daughter sought to have returned to her. The trial court had made statements regarding the ownership of Preston during the several hearings it had held in this case. The mother's contempt allegations asserting that the daughter's fiancé had forcibly removed Preston from the mother's possession revived the issue before the court and resulted in the trial court's having to, in order to protect themother and to effectuate the no-contact provisions in the PFA order, state definitively that Preston belonged to the mother. The trial court acted within its discretion in entering an order definitively determining the ownership of Preston so as to protect the mother from the daughter's continued, yet prohibited, contact with the mother. Its exercise of jurisdiction over the question of the ownership of Preston, as well as various other items of personal property that were, in fact, returned to the daughter, was based on the daughter's requests in her "motions for consideration" and the requests made at the 2009 hearing and at other, earlier hearings that the trial court determine those ownership rights; thus, the issue concerning the ownership of Preston and the other...