FROM THE ALABAMA LAWYER: Did You Know...?
Published on May 19, 2021
By Charles H. Dunn
When I was asked to consider writing an article for this issue, the only parameters given to me in deciding on what topic to write were posed in two questions: will the article help an actual Alabama lawyer in their practice of family law, and is the article written so that you would want to read it?
Given that my attention span is that of a gnat, I have always been drawn to articles in scholarly publications that neatly and succinctly provide the topical “meat on the bone” and which then direct the reader to other authoritative sources where additional information can be gleaned should the reader’s appetite for knowledge on the topic not be satiated. With that structure in mind, below are a few Did You Knows–nuggets of information that you might find useful in your application and practice of family law.
Did you know under Rule 59.1, Ala. Rule Civ. P., an appeal may be dismissed as untimely when the parties only consent to extend the time for a hearing on the post-judgment motion? Ex parte Bodenhamer, 904 So. 2d 294 (Ala. 2004); Slay v. Slay, 292 So. 3d 651 (Ala. Civ. App. 2019) (holding that “consent to extend the time for a hearing on a post-judgment motion does not equate to consent to extend the pendency of the post-judgment motion beyond the 90-day period prescribed by Rule 59.1”).
Practice Pointer: For the unwary, if the intent of all parties is to extend the time for the trial court to rule on a post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 beyond the 90-day period that Rule 59.1 prescribes, make absolutely certain that the express consent of all parties appear of record. And for the savvy, filing a joint motion is not necessary as Rule 59.1 does not require that a trial court take any action to effectuate an express consent of all parties to extend the 90-day period to rule on a post-judgment motion. The only requirement to extend that period is that the express consent of all the parties appear of record which can be stated in a jointly filed submission with the trial court.
Did you know while successive post-judgment motions are generally not allowed, a second motion that is timely filed within 30 days of the entry of the judgment which raises different arguments than the arguments asserted in the original post-judgment motion is valid and operates to extend the time for the filing of an appeal? Barnes v. Barnes, 298 So. 3d 1085 (Ala. Civ. App. 2019).
Practice Pointer: A second bite at the apple may be possible. Even if the trial court has already denied your client’s original post-judgment motion, another post-judgment motion may still be filed with the trial court so long as it contains additional and different arguments than the first, and so long as it can be filed within 30 days from entry of the judgment. And while a second bite at the apple is always nice, more importantly, a second post-judgment motion filed under these circumstances can preserve any arguments for appellate review that the first motion omitted by oversight or error.
Did you know the Grandparent Visitation Act (“the GVA”), Ala. Code § 30-3-4.2 (1975), does not create a cause of action in which a grandparent may seek visitation from a third-party custodian of her grandchild? Ex parte S.H., 2019 Ala. Civ. App. LEXIS 140.
Practice Pointer: Ex parte S.H. was a 3-2 opinion of the Alabama Court of Civil Appeals. As noted by Judge Moore in his dissenting opinion, subdivision (b)(1) of the GVA authorizes an action for grandparent visitation when “the marital relationship between the parents of the child has been severed by death or divorce.” As worded, subdivision (b)(1) contemplates proceedings for grandparent visitation following the death of a parent. Under Alabama law, an action against a deceased person is a nullity, see A.E. v. M.C., 100 So. 3d 587, 595 (Ala. Civ. App. 2012), so the respondent in such an action, as Judge Moore opined, could not be the deceased parent; rather, the respondent would have to be the living person or persons having legal custody of the child following the death of the parent or parents of the child.
Did you know when an in-camera interview with a child is conducted by the trial court and no record is made of the interview, the Alabama Court of Civil Appeals will presume that the interview supports the findings of the trial court? Clark v. Clark, 292 So. 3d 1054 (Ala. Civ. App. 2019).
Practice Pointer: Proceed cautiously before waiving any due process rights of your client. Any such in-camera interview the trial court may have with a child will almost always result in severally limiting any likely success your client may have on appeal should the trial court’s custody judgment not be favorable. The better practice is to make sure that a record exists of any interview or examination of the child, and that it be done in the presence of all counsel of record and only after the trial court determines that the child is competent to testify.
Did you know if the trial court decides to deviate from the basic monthly child support obligation as established by strict application of the child support guidelines, the trial court must comply with Rule 32(A), Ala. R. Jud. Admin., by entering a written finding on the record indicating why application of the child support guidelines would be unjust or inappropriate? Griggs v. Griggs, 304 So. 3d 741 (Ala. Civ. App. 2020).
Practice Pointer: Even if the amount of child support the trial court orders as a result of its decision to deviate is not objectionable to your client, make sure the trial court’s reasons for deviation are always stated in its judgment. Remember, child support can always be modified. In circumstances when the existing child support award resulted from a rebuttal of the guidelines, a party seeking to modify child support must plead and prove a material change in circumstances from those circumstances which resulted in the rebuttal of the guidelines. Rule 32 (A)(3)(c). If the trial court failed to enter a written finding on the record regarding why application of the child support guidelines was either unjust or inappropriate, then the client seeking a modification of child support may have a difficult time proving that a material change of circumstances has subsequently occurred.
Did you know gross income in the calculation of child support includes Social Security benefits received by a child because of a parent’s disability? Phillips v. Phillips, 307 So. 3d 597 (Ala. Civ. App. 2020).
Practice Pointer: While it is common practice to subtract the amount of Social Security benefits received by a child because of a parent’s disability from the non-custodial, disabled parent’s total support obligation calculated under the child support guidelines, few practitioners include the amount the Social Security benefits the child receives as a part of the disabled parent’s gross monthly income. See Rule 32 (B)(9), Ala. R. Jud. Admin.
Did you know while the juvenile court may hold its adjudicatory and dispositional hearings in a dependency case on different dates, if the child is no longer dependent on the date of disposition the juvenile court must dismiss the petition? H.A.S. v. S.F., 298 So. 3d 1092 (Ala. Civ. App. 2019).
Practice Pointer: In the instance where a significant period of time has elapsed from the date of the adjudicatory hearing, make certain that sufficient evidence is produced at the dispositional hearing to clearly and convincingly support a finding that the child is still a dependent child, as that term is defined in Ala. Code § 12-15-102(8) (1975). Without any such evidence establishing a basis for that conclusion, the juvenile court cannot determine that a child is dependent and must dismiss the petition.
Did you know living openly with a former spouse will not be considered cohabitation under § 30-2-55, and will not terminate an alimony obligation to such former spouse? Rivera v. Sanchez, 297 So. 3d 1242 (Ala. Civ. App. 2019).
Practice Pointer: In such an instance, however, a recipient spouse waives the receipt of periodic alimony during the period of cohabitation with the payor spouse. Id.
Did you know a trial court is not bound by an agreement of the parties and may adopt or reject such parts of an agreement as it deems proper from the situation of the parties as shown by the evidence? Smith v. Smith, 283 So. 3d 1242 (Ala. Civ. App. 2019).
Practice Pointer: Always review a trial court’s final judgment which purports to incorporate the parties’ agreement that had been read in open court where no or little ore tenus evidence had been presented. If the judgment deviates from the parties’ agreement, the trial court’s judgment will be reversed if there was no or insufficient evidence presented to the trial court to support its findings.
Did you know there are three possible roles of a guardian ad litem (GAL) in a custody case: as counsel, as an investigator and/or fact witness, and as an opinion witness? Rogers v. Rogers, 307 So. 3d 578 (Ala. Civ. App. 2019).
Practice Pointer: The appointment of a GAL should be made when the trial court determines that the fulfillment of one or more roles of a GAL is needed for the case. A GAL serving in the role of counsel may participate in the litigation through activities associated with the role of an attorney and, while representing the child’s best interests, owes a duty to the appointing court to be an advocate for the child’s best interests. A GAL may also be appointed in a role that authorizes or requires the GAL to obtain facts to be presented to the trial court and, in that role, could likely obtain personal knowledge of the subject matter of the testimony. In some cases, GALs have been permitted to give opinions to the trial court in custody cases. Determining what role the GAL is expected to fulfill is critical in determining whether it may be appropriate to call the GAL as a witness or in determining any evidentiary issues as to the admissibility of any opinion testimony that the GAL may be asked to provide. No matter the role, the GAL must not usurp a trial court’s authority or be delegated any special authority of the trial court. For an excellent case which explains these different roles of the GAL, see Rogers v. Rogers, 307 So. 3d 578 (Ala. Civ. App. 2019).
Did you know § 30-3-169.9(b), a part of the Alabama Parent-Child Relationship Protection Act, §§ 30-3-160 to -169.10, provides that, where the parties have been awarded joint custody, joint legal custody, or joint physical custody of a child, and at least one parent having joint custody, joint legal custody, or joint physical custody of a child continues to maintain a principal residence in this state, the child shall have a significant connection with this state and a court, in fashioning its judgments, orders, or decrees may retain continuing jurisdiction under §§ 30-3B-202 to 30-3B-204, even though the child’s principal residence after the relocation is outside the state? Adcock v. Fronk, 289 So. 3d 1244 (Ala. Civ. App. 2019).
Practice Pointer: It is important to review and know the initial custody determination in a post-divorce custody case that has interstate implications under the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 to -405. In a custody case where an Alabama trial court which made the initial custody determination is being asked to relinquish its continuing and exclusive jurisdiction over the custody determination to another state, as long as one parent with joint custody, joint legal custody, or joint physical custody continues to reside in Alabama, the child continues to have a significant connection with Alabama. See § 30-3B-202(a)(1).
Did you know while as a general rule, Social Security retirement benefits are not subject to garnishment, see 42 U.S.C. § 407(a), monies payable by the United States that an individual obligor is entitled to receive based on remuneration for employment may be pursued to enforce an alimony obligation? 42 U.S.C. § 659(a); Johns v. Johns, 291 So. 3d 505 (Ala. Civ. App 2019).
Practice Pointer: Accrued installment payments for alimony are final judgments and can be collected like any other judgments, such as garnishment. Therefore, in consideration of the time and expense associated with enforcement proceedings, it might be more economical and efficient to file a garnishment, as opposed to a petition for rule nisi, when attempting to collect past due alimony installments for a client.
Did you know a trial court is not required to make a finding regarding the valuation of a marital asset? Horne-Ballard v. Ballard, 2020 Ala. Civ. App. LEXIS 50.
Practice Pointer: In the absence of a statute requiring that specific findings of fact be made, a trial court is not required to make any findings as a part of a property division, and an appellate court will presume that, in fashioning its property division and alimony award, the trial court made those findings necessary to support its judgment. As a matter of course, then, make certain that the record contains abundant and credible evidentiary support regarding the value of any disputed property as the appellate court will view the evidence regarding the value of the parties’ property in the light most favorable to the trial court’s judgment.
Did you know under the Protection from Abuse Act a trial court cannot enter a mutual order regardless of the parties’ oral or written agreement? § 30-5-5(d).
Practice Pointer: Section 30-5-5(d) of the Act” “[T]he court shall not enter mutual orders. The court shall issue separate orders that specifically and independently state the prohibited behavior and relief granted in order to protect the victim and the victim’s immediate family and to clearly provide law enforcement with sufficient directives.” Therefore, by statute, in a proceeding initiated by the filing of a petition for protection from abuse, the petitioner and respondent cannot agree to the entry of a mutual no-contact order as opposed to a protection from abuse order