Young v. Corrigan, 2160325

Citation253 So.3d 373
Decision Date20 October 2017
Docket Number2160326,2160325
Parties Lee Ladd Corrigan YOUNG v. Richard E. CORRIGAN Lee Ladd Corrigan Young v. Richard E. Corrigan
CourtAlabama Court of Civil Appeals

Thomas H. Nolan, Jr., Mobile, for appellant.

Joseph C. Sullivan, Jr., of Hamilton, Butler, Riddick, Tarlton & Sullivan, P.C., Mobile, for appellee.

MOORE, Judge.

Lee Ladd Corrigan Young ("the mother") appeals from separate, but almost identical, judgments entered by the Mobile Circuit Court ("the trial court") in postdivorce contempt and modification proceedings between the mother and Richard E. Corrigan ("the father"). We affirm the judgments in part and reverse the judgments in part.

Procedural History

On December 17, 2008, the parties were divorced by a judgment entered by the trial court. That judgment, among other things, awarded the parties joint legal custody of their child; awarded the mother "primary" physical custody of the child; awarded the father visitation with the child every other weekend, on Wednesday of every week, for one month during the summer, every Father's Day, on the father's birthday, and on alternating holidays; ordered the father to pay child support for the child; ordered the father to "provide major medical insurance for the ... child"; ordered the parties to "equally divide all uninsured medical and dental expenses not otherwise covered by insurance after deductibles and co-pays are met by [the mother]"; and ordered the parties to "equally divide the costs of the attendance of the ... child ... at UMS–Wright Preparatory School." The father was also awarded the "first right of refusal to have the minor child of the parties stay with him in the event [the] Mother has the need for a babysitter."

On May 30, 2014, the father filed a petition for a rule nisi, alleging that the mother had failed to allow the child to visit him on his birthday and had failed to offer him the right of first refusal when she needed a babysitter for the child; that case was assigned case no. DR–06–501848.03. On June 10, 2014, the mother filed an answer. On July 21, 2014, the father filed a motion seeking to enforce his summer-visitation rights; he also requested sanctions for the mother's failure to allow him to exercise his summer visitation with the child. The father filed an amended petition for a rule nisi on July 22, 2014.

On January 14, 2015, the mother filed a petition requesting that the trial court hold the father in contempt for his failure to pay child support; she also requested both a suspension and a decrease of the father's visitation. That case was assigned case no. DR–06–501848.04. On June 26, 2015, the father filed in case no. DR–06–501848.03 another amended petition for a rule nisi, alleging that the mother had continued to interfere with his visitation. On that same date, the trial court entered orders in both cases appointing a guardian ad litem to represent the interests of the child. On August 14, 2015, the mother filed in case no. DR–06–501848.04 an amended petition seeking to hold the father in contempt and to modify the father's child-support obligation.

On March 14, 2016, the trial court entered an order, based upon an agreement of the parties, stating that a "visitation evaluation" would be conducted on the parties with the father paying the costs of the evaluation.

After a trial, the trial court entered, on November 2, 2016, separate, but almost identical, judgments finding the mother in contempt of court for allowing the child "to make her own decisions as to visitation with the [father]"; providing that the mother could purge herself of contempt by ensuring that the father receive "rehabilitative visitation, commencing November 4, 2016 throughout that weekend" and, "[t]hereafter, every weekend until January 6, 2017"; finding the father in contempt of court "for his willful failure to pay child support and tuition" for the child; modifying the father's monthly child-support obligation to $896.60 in compliance with Rule 32, Ala. R. Jud. Admin.; ordering the mother and the father to "confer so that major decisions affecting the welfare of the child shall be determined jointly[, including,] but not limited to, [decisions regarding] education, discipline, religion, medical, and the general upbringing of the child"; ordering the mother and the father to "divide their custodial periods of time on a weekly basis, with the exchange occurring on Fridays afer school, or at 6:00 p.m. if there is no school on any given Friday"; ordering the mother to pay "$5,800.00 for ... reasonable attorney's fees and $3,700.00 for counseling fees"; ordering the parties to "maintain health insurance on the minor child in the same manner in which it currently exists"; and ordering the mother and the father to each "pay one-half of said insurance premium expense monthly and [to] pay one-half of all uninsured and/or unreimbursed medical, dental, pharmaceutical, psychological, psychiatric, optical or orthodontic expenses of the ... child, including copayments."

On November 3, 2016, the guardian ad litem for the child filed a postjudgment motion. On December 1, 2016, the mother filed a postjudgment motion. On January 27, 2017, the trial court amended the judgments regarding matters not pertinent to these appeals. On February 10, 2017, the mother filed her notices of appeal.

I. Due–Process Issues

On appeal, the mother first argues that the trial court's judgments are void because, she says, the trial court failed to afford her due process to the extent that the judgments modify portions of the divorce judgment by providing for the payment of health-insurance costs, by ordering her to pay counselor fees, and by modifying the legal and physical custody of the child when there were no claims pending requesting such relief.

" "A judgment is void only if the court which rendered it [1] lacked jurisdiction of the subject matter, or [2] of the parties, or [3] if it acted in a manner inconsistent with due process." Neal v. Neal, 856 So.2d 766, 781 (Ala. 2002) (quoting Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala. 1978) ). See alsoSmith v. Clark, 468 So.2d 138, 141 (Ala. 1985) ; Cassioppi v. Damico, 536 So.2d 938, 940 (Ala. 1988) ; Pollard v. Etowah County Comm'n, 539 So.2d 225, 228 (Ala. 1989) ; Satterfield v. Winston Indus., Inc., 553 So.2d 61, 64 (Ala. 1989) ; Fisher v. Amaraneni, 565 So.2d 84, 87 (Ala. 1990) ; Hughes v. Cox, 601 So.2d 465, 467–68 (Ala. 1992) ; Greene v. Connelly, 628 So.2d 346, 351 (Ala. 1993) ; and Rule 60(b)(4), Ala. R. Civ. P.
" ‘ "[I]t is established by the decisions in this and in Federal jurisdictions that due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing."
" Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940) (emphasis added).’ "

M.H. v. Jer. W., 51 So.3d 334, 337 (Ala. Civ. App. 2010) (quoting Neal v. Neal, 856 So.2d 766, 781–82 (Ala. 2002) ).

"In Carden v. Penney, 362 So.2d 266 (Ala. Civ. App. 1978), this court explained that Rule 54(c), Ala. R. Civ. P., authorizes a trial court to grant to a party the relief to which that party is entitled ‘irrespective of the request for relief contained in the pleadings.’ 362 So.2d at 268.
" ‘However, Rule 54(c) does not sanction the granting of relief not requested in the pleadings where it appears that a party's failure to ask for particular relief has substantially prejudiced the opposing party. Albe[ ]marle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) ; Rental Development Corporation of America v. Lavery, 304 F.2d 839 (9th Cir. 1962) ; Penney v. Carden, [356 So.2d 1188 (Ala. 1978) ]. Moreover, if the relief granted pursuant to Rule 54(c) is not justified by the proof or is justified by proof which the opposing party has not had an opportunity to challenge, the relief granted should not be sustained on appeal. See 10 Wright & Miller[,] Federal Practice and Procedure § 2662 (1973). Accordingly, logic dictates that in those situations where an opposing party has no notice, by pleadings or otherwise, regarding the claim upon which relief is granted by means of Rule 54(c) and is thereby denied an opportunity to have challenged or defended against such a claim, the opposing party has suffered substantial prejudice and the judgment granting relief must be reversed. See United States v. Hardy, 368 F.2d 191 (10th Cir. 1966). Indeed, such a rule is fundamental to the essentials of due process and fair play. Sylvan Beach, Inc. v. Koch, 140 F.2d 852 (8th Cir. 1944).’
" 362 So.2d at 268–69."

Myers v. Myers, 206 So.3d 649, 651–52 (Ala. Civ. App. 2016).

A. Health–Insurance Costs

With regard to the mother's challenge to the trial court's modifying the divorce judgment to provide for the payment of health-insurance costs, we note that the mother failed to make this argument to the trial court. "Unless there is an absence of jurisdiction over the subject matter, appellate courts will not consider constitutional challenges which were not presented to the trial court." Tucker v. State, 445 So.2d 311, 314 (Ala. Civ. App. 1984). See also Austin v. Austin, 159 So.3d 753, 759–60 (Ala. Civ. App. 2013) (holding that issue whether notice was afforded in accordance with due process must be preserved). Accordingly, we do not consider this argument.

B. Counselor Fees

With regard to the provisions of the judgments requiring the mother to pay the counselor's fees, we note that the father testified at the trial that he was requesting that the mother reimburse him for his payment of the counselor's fees. The mother did not object to the father's testimony on the basis that that issue had not been pleaded. When an issue is "raised at trial without objection, ... it [is] tried by the implied consent of the parties." S.A.M. v. M.H.W., 227 So.3d 1232, 1233 (Ala. Civ. App. 2017). Rule 15(b), Ala. R. Civ. P., provides that, "[w]hen issues not raised by...

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