Williams v. Williams

• Decision Date: 14 August 2020
• Docket Number: 2190021
• Citation: 318 So.3d 508
• Court: Alabama Court of Civil Appeals
• Parties: Jennifer Black WILLIAMS v. John Albert WILLIAMS

318 So.3d 508

Jennifer Black WILLIAMS

v.John Albert WILLIAMS

2190021

Court of Civil Appeals of Alabama.

August 14, 2020

John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for appellant.

Jim T. Norman III, Prattville, for appellee.

DONALDSON, Judge.

Jennifer Black Williams ("the mother") appeals from the judgment of the Montgomery Circuit Court ("the trial court") modifying the judgment divorcing her from John Albert Williams ("the father"). The trial court initially entered a judgment incorporating and adopting an agreement between the parties that included a modification of the father's visitation periods with J.A.W. and J.E.W. ("the children"). The trial court later amended the judgment to grant the father more visitation time with J.E.W., thereby deciding not to adopt the parties' agreement in its entirety. Because the trial court's decision was not based on evidence, we reverse the judgment and remand the cause with instructions.

Procedural History

On July 22, 2013, the trial court entered a judgment divorcing the parties. The divorce judgment, which incorporated a settlement agreement, granted joint legal custody of the children to the parties, sole physical custody to the mother, and visitation to the father. On February 6, 2014, the father filed a complaint seeking to modify the divorce judgment to increase his visitation time with the children. The mother filed an answer and a counterclaim seeking a finding of contempt against the father. The father filed an answer to the mother's counterclaim. The father amended his pleadings to include a claim seeking a finding of contempt against the mother. The contentious and protracted proceedings included numerous motions and orders regarding visitation, contempt claims, and other matters.

On January 26, 2019, the parties filed a joint modification agreement in the trial court that included the following provision:

"1. [The father] shall have weekend visitation every other Thursday at 6:00 p.m. through Sunday at 6:00 p.m. during the school year and each Thursday evening during the week he does not have weekend visitation from 6:00 p.m. until 8:00 a.m. the following morning when the children are delivered to school. The Monday visitation with [the father] immediately following [the mother's] weekend visitation is hereby eliminated. [The father] shall not force [J.A.W.] to visit. [J.A.W.'s] visitation shall be at her discretion; however, she is encouraged to participate."

On January 28, 2019, the trial court conducted a hearing. The trial court noted that the parties, their counsel, and the guardian ad litem who had been appointed to represent the children were present. The parties were collectively administered an oath. Counsel for the parties and the guardian at litem discussed with the trial court the joint modification agreement reached by the parties, focusing, in particular, on the father's visitation with J.A.W. At the conclusion of the hearing, the mother and the father both stated that they had reviewed the joint modification agreement and that it contained all the terms needed to resolve the matters before the trial court. The trial court then announced that it would adopt the joint modification agreement in its judgment. On January 28, 2019, the trial court entered a judgment incorporating and adopting the terms of the parties' joint modification agreement. In the judgment, the trial court stated that it found that "the Parties have entered into a fair written agreement regarding the visitation of the Minor Children and all other outstanding issues in this matter ...."

On February 12, 2019, the father filed a motion to alter or amend the judgment incorporating the joint modification agreement. In the motion, the father asserted the following:

"1. That the parties settled this case on a Saturday evening with [the father] signing the Joint Modification Agreement in the evening at his home after working all day with his attorney and [the mother] and her attorney in negotiating agreement terms.

"2. Pursuant to the Divorce Decree and the practice of the parties over the last few years, [the father] enjoyed every other Friday picking the children up from school through Sunday at 7:00 p.m. in addition to every other Thursday from school recessing until Friday at 8:00 a.m. and Monday following [the mother's] weekend from school recessing until the following Tuesday morning at 8:00 a.m. In the modification action, [the father] intended to trade out the Monday visits following [the mother's] weekend for extra time every other weekend from Thursday at the time school recesses (which is 3:00 p.m.) through Monday morning at 8:00 a.m.

"3. To achieve this, [the father] made generous monetary concessions by agreeing to pay [the mother] a lump-sum for all alimony in full rather than discounting it to ‘present day value.'

"4. That [the father] avers that he misunderstood that the Settlement Agreement he executed did not include overnight every other Sunday night through Monday morning at 8:00 a.m. and it was [the father's] intentions that the parties maintain the pick-up time for visitation to occur when school recesses rather than [the father] having to wait until 6:00 p.m."

On May 7, 2019, the trial court conducted a hearing on the father's motion in which it heard oral arguments from counsel for the parties and statements from the guardian ad litem regarding the joint modification agreement. On May 13, 2019, the trial court entered an order denying the father's motion to alter or amend the judgment incorporating the joint modification agreement but granting, ex mero motu, the father additional visitation time with J.E.W. The May 13, 2019, order stated the following, in part:

"THIS case was called for hearing on [the father's] ‘Motion to Alter or Amend Settlement Agreement and Modification Order' and [the mother's] response and amended response thereto. The parties and their attorneys of record, along with the Guardian ad Litem, were present and presented their positions to the Court. [The father's] ‘Motion to Alter or Amend Settlement Agreement and Modification Order' is hereby DENIED.

"On its own, ex mero motu, and as this is a court of equity, the undersigned awards and hereby grants to the Father additional time with [J.E.W.]. Specifically, the Father is awarded additional time with [J.E.W.] upon the conclusion of the agreed upon period between the Parties from Thursday at 6:00 pm until Sunday at 6:00 pm. Following the expiration of the time agreed upon by the Parties, the undersigned extends the custodial/visitation time between Father and [J.E.W.] on Sunday from 6:00 pm until Monday at 8:00 am when [J.E.W.] returns to school or returns to the home shared with his Mother and [J.A.W.]. The supplemental time awarded to the Father does not otherwise apply to any other provision regarding visitation between the Father and [J.E.W.]."

(Capitalization in original.)

On June 10, 2019, the mother filed a motion to alter, amend, or vacate the May 13, 2019, order. In her motion, the mother asserted the following, in part:

"6. The Court cannot deviate from the terms of the parties' settlement agreement unless evidence is presented on which the Court can base its decision to deviate. Holder v. Holder, 86 So. [3d] 1001, 1004 (Ala. Civ. App. 2011). See also Freeman v. Freeman, 84 So. [3d] 939, 944 (Ala. Civ. App. 2011).

"7. In this case, there was no evidence presented to the Court. Thus, there was nothing to justify its ex mero motu order of May 13, 2019, changing the terms of the ‘Joint Modification Agreement.’ The Court uses the principle of ‘equity' to justify its order. But given there was absolutely no evidence presented to the Court, it had nothing before it on which it could make an ‘equitable' decision. If anything, the Court's order is inequitable due to a lack of supporting evidence."

On September 3, 2019, the trial court conducted a hearing on the mother's postjudgment motion and the payment of the guardian ad litem's fees. During the hearing, the parties presented oral arguments regarding the trial court's ex mero motu amendment of the judgment incorporating the joint modification agreement and its departure from the parties' joint modification agreement to grant the father additional visitation time with J.E.W. On September 9, 2019, the trial court entered an order denying the mother's postjudgment motion.¹ In the order, the trial court stated, in part:

"The Parties were not called upon to testify as to the legal issues before the court. However, these Parties have a lengthy history before this court, dating as far back as five years ago. Additionally, the undersigned has been called upon on multiple occasions to rule on various motions when the Former Husband was seeking more time with the Parties' two children, seeking time with [J.A.W.] or seeking an order from the court to allow the children to travel with him out of the state of Alabama on special occasions.

"While the Parties did not testify at the most recent hearing on [the mother's motion to alter, amend, or vacate], the court did make specific inquiries of counsel regarding this agreement, given her familiarity with the Parties and [the father's] ongoing desire for a relationship with [J.A.W.] and more time with both children. The undersigned was concerned that the Agreement did not adequately address [the father's] visitation with [J.A.W.]. Given that during this protracted litigation, the court is very much aware of periods of time when the relationship between [the father] and [J.A.W.] was very strained, to the point that there was no visitation between them, unlike the situation between [the father] and [J.E.W.]. When the court was satisfied that [the father] and [J.A.W.] were making progress in their relationship, it proceeded to move forward with the process of adopting the Agreement of the Parties. There was no issue that was presented to the court regarding visitation between [the father] and

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