State Dept. of Human Resources ex rel. Nathan v. Nathan

• Decision Date: 03 February 1995
• Citation: 655 So.2d 1044
• Parties: STATE DEPARTMENT OF HUMAN RESOURCES, ex rel. Anita C. NATHAN v. Ernest NATHAN. AV93000734.
• Court: Alabama Court of Civil Appeals

Page 1044

655 So.2d 1044

STATE DEPARTMENT OF HUMAN RESOURCES, ex rel. Anita C. NATHAN v. Ernest NATHAN.

AV93000734.

Court of Civil Appeals of Alabama.

Feb. 3, 1995.

William Prendergast and Mary E. Pons, Asst. Attys. Gen., Dept. of Human Relations, for appellant.

No briefs filed for appellee.

RICHARD L. HOLMES, Retired Appellate Judge.

The State Department of Human Resources (State), on behalf of the mother of two minor children, sought to modify a child support order. The trial court found the mother to be in contempt of court, apparently because she had interfered with the father's exercise of his visitation rights with the minor children. The trial court refused to hear the State's petition until the mother purged herself of the contempt.

The State, on behalf of the mother, appeals. The father has not favored this court with a brief.

After a review of the record, we find that the judgment of the trial court is due to be reversed and the cause remanded.

This case has a somewhat tortuous history. The record, in pertinent part, reveals the following: The parties were divorced in May 1988. The mother was awarded custody of the parties' two minor children, subject to the visitation rights of the father. The father was ordered to pay child support in the amount of $50 per week per child.

In August 1988 the mother filed a petition for rule nisi, wherein she alleged, in pertinent part, that the father had failed, or refused, to make child support payments. The trial court issued an order dated November 21, 1988, wherein it found the father to be in direct contempt and sentenced him to jail. However, the sentence was suspended to allow the father to purge himself of contempt. The mother was awarded a judgment against the father in the amount of $3,402, which represented the amount of the arrearage. The father was ordered to satisfy the judgment by paying $25 each week thereon.

In May 1989 the mother filed another petition for rule nisi and a petition to modify the divorce decree. The mother alleged that the father continued to be in arrears in his child support obligation, and she requested that the trial court issue a wage withholding order and place the father in jail until he purged himself of contempt. The mother also requested that the trial court suspend the father's visitation rights with the parties' minor son because, she says, the father physically and emotionally abused the child. She further requested that the trial court order the father to pay for psychiatric counselling for their minor son and that the father be ordered to receive counselling prior to any further visitation.

The father filed an answer and a counterclaim, wherein he alleged that the mother was not a fit and suitable person to have custody of the parties' minor children, and he requested that the trial court award custody of the parties' minor children to him.

In July 1989 the trial court issued an order. In its order, the trial court found the father to be in direct contempt and sentenced him to jail. The sentence was suspended to allow the father to purge himself of contempt. The trial court ordered that a wage withholding order be issued for collection of the $100 per week in child support and the $25 per week in payment of the child support arrearage. The father was awarded all reasonable rights of visitation with the minor children, and the trial court ordered the father to pay for counselling for the parties' minor son.

In March 1993 the father filed a petition for rule nisi and a petition to modify the divorce decree. The father alleged that the mother had consistently failed, or refused, to allow the father to exercise his visitation rights with the minor children. He requested that the trial court find the mother in contempt. The father also requested that the trial court modify his rights of visitation to include extended rights to long-distance visitation with the minor children, due to the fact that the mother and children now reside in California. The mother filed a motion to transfer the cause to California, due to the fact that she and the minor children had resided in California since August 1989.

In October 1993 the State, on behalf of the mother, filed a petition to modify. The petition stated that the State of California had provided a petition seeking modification of the father's child support obligation. The petition alleged, "the needs of the minor children have increased and/or there has been a material change in circumstances in that the [father] is gainfully employed and able to pay more child support in accordance with the Rule 32, ARJA, child support guidelines."

In April 1994 the trial court issued an order, wherein it found the mother to be in direct contempt of prior orders of the court. The trial court refused to hear the mother's petition to modify until the mother purged herself of contempt by obeying all prior orders of the court.

The State filed a post-judgment motion. The attorney who represented the mother regarding the visitation issue also filed a post-judgment motion, wherein she alleged that she was not present at the April 1994 hearing because she was never notified of the April 1994 hearing. The trial court held a hearing on the motions. Thereafter, the trial court issued an order, wherein it denied both of the post-judgment motions.

As previously noted, the State appeals.

The issue on appeal is whether, in this instance, the trial...