Wampol v. McElhaney
Decision Date | 17 July 2015 |
Docket Number | 2140310. |
Parties | Dana Christine WAMPOL v. Justin Rolfe McELHANEY. |
Court | Alabama Court of Civil Appeals |
Benjamin E. Pool, Montgomery, for appellant.
Paul R. Cooper of Cooper & Cooper, Montgomery, for appellee.
, Judge.
Dana Christine Wampol ("the mother") appeals from a judgment entered by the Montgomery Circuit Court on competing postdivorce petitions filed by her and Justin Rolfe McElhaney ("the father"). We affirm in part and reverse in part.
The parties were divorced by a judgment of the trial court in November 2012. The parties were awarded joint legal custody of their minor child, D.M. ("the child"), the mother was awarded primary physical custody of the child, and the father was ordered to pay monthly child support. On January 2, 2014, the father filed a petition requesting that the mother be required to show cause why she should not be held in contempt of court. On January 24, 2014, the mother filed an answer and a counterpetition, seeking, among other things, sole legal custody of the child and requesting, among other things, that the trial court hold the father in contempt and order him to pay her attorney's fees. On March 5, 2014, the father answered the mother's counterpetition. On March 6, 2014, the father filed an amended petition seeking, among other things, increased visitation or, alternatively, joint physical custody of the child. On April 2, 2014, the mother filed an answer to the amended petition. On June 19, 2014, the mother filed an amendment to her counterpetition, requesting a modification of child support. After a trial, the trial court entered a judgment on October 8, 2014, which, among other things, modified the father's visitation with the child and reduced the father's child-support obligation. On October 30, 2014, the mother filed a postjudgment motion. On December 9, 2014, the trial court entered a judgment amending its previous judgment with regard to child support and clarifying the father's visitation schedule. On January 16, 2015, the mother filed her notice of appeal.
On appeal, the mother first argues that the trial court erred in excluding the testimony of Jennifer McElhaney, the father's current wife, based on the husband-wife privilege. See Rule 504, Ala. R. Evid
.
" ‘ " " Mock v. Allen, 783 So.2d 828, 835 (Ala.2000)
(quoting Wal–Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala.1998) )....
Cooper v. Cooper, 160 So.3d 1232, 1240 (Ala.Civ.App.2014)
.
At the trial, the mother's attorney sought to question Jennifer regarding alleged acts of abuse committed against Jennifer by the father. The trial court prevented the mother's attorney from doing so based on the husband-wife privilege. In Rich v. Rich, 887 So.2d 289 (Ala.Civ.App.2004)
, this court reasoned:
(quoting Handley, 515 So.2d at 124–25, quoting in turn Charles W. Gamble, McElroy's Alabama Evidence § 103.01(4) (3d ed.1977)). The privilege does not protect acts that do not ‘seek the shelter of the intimacy of the marital relationship.’ Brown, 588 So.2d at 557 ; see also Charles W. Gamble, McElroy's Alabama Evidence § 103.01(4)(b) (5th ed. 1996) .
. Based on this court's reasoning in Rich, we conclude that the trial court erred in not allowing the mother's attorney to question Jennifer on the topic of the alleged acts of abuse.
Because domestic violence is relevant to considerations of child custody, see Ala.Code 1975, § 30–3–130
, we conclude that the trial court's error was not harmless. We, therefore, reverse the judgment of the trial court insofar as it addressed the custody and visitation issues raised by the parties and remand this cause with instructions to the trial court to allow the mother to elicit testimony from Jennifer on the subject of the alleged acts of abuse.
We note that the trial court refused to allow the mother's attorney to make a specific offer of proof; however, in the present case, "the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." Rule 103(a)(2), Ala. R. Evid
. Specifically, the trial court asked the mother's attorney if the "testimony [that was] to be elicited from [Jennifer was] "related to some kind of active abuse," to which the mother's attorney responded in the affirmative. Because the substance of the evidence sought to be obtained is clear, we conclude that no offer of proof was necessary.
The mother next argues that the trial court erred in not finding the father in contempt for failing to pay child support for the month of August 2014. We note, however, that the evidence indicated that Jennifer had written the mother a check for the August 2014 child support but had subsequently canceled the check because she and the father had separated. Considering those facts, we conclude that the trial court...
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