Sean G. Casey v. Jonice Dorriety Casey
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REL: 03/04/2001
Notice: This opinion is subject to formal revision before publication in the advance
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2010-2011
_________________________
2090371
_________________________
Sean G. Casey
v.
Jonice Dorriety Casey
Appeal from Escambia Circuit Court
(DR-03-180.02)
PITTMAN, Judge.
Sean
G.
Casey
("the
former
husband")
appeals
from
a
judgment denying a motion filed pursuant to Rule 60(b), Ala.
R. Civ. P., seeking relief from a default judgment that had
been entered against him by the Escambia Circuit Court.
The
2090371
former
husband
also
appeals
from
the
provisions
of
that
judgment modifying his visitation privileges with the parties'
child and awarding attorney's fees to Jonice Dorriety Casey
("the former wife").
The former husband and the former wife were married in
1999; in 2000, the former husband reentered military service
and was temporarily transferred to Florida.
During that time,
the former wife resided in Atmore and waited for the former
husband to receive a permanent assignment; the parties' child
was born in September 2000.
The parties never reunited, and,
in 2003, they decided to proceed with an uncontested divorce.
Although the divorce documents were prepared in 2003, the
judgment was not entered until December 2006, in part because
the
former
judgment
husband
had
incorporated
been
an
sent
agreement
overseas.
of
the
The
divorce
parties;
that
judgment awarded physical custody of the parties' child to the
former wife, awarded the former husband liberal visitation,
and ordered the former husband to pay $500 in monthly child
support.
The record reveals that, after leaving military service
in
June
2003,
the
former
husband
2
took
employment
with
a
2090371
private security company that sent him to Iraq in July 2004;
he did not return to Florida until March 2005.
Thereafter, he
traveled to Idaho briefly and then returned to Florida until
September 2005.
At that time, he moved to Pennsylvania to
attend
and
school
remained
there
until
June
2007.
Subsequently, the former husband remarried and moved to New
Jersey, staying there until September 2007, when his employer
sent him to Saudi Arabia until February 2008.
In May 2007, the former wife filed an action seeking a
judgment declaring that the former husband was in contempt for
failing to pay $819 in child support and $2,900 in unpaid
medical
expenses;
the
former
husband
complaint in that action in July 2007.
was
served
with
the
At that time, he was
notified that a hearing was set for September 2007, when he
was scheduled to be in Saudi Arabia, so he hired an attorney
in Bay Minette to represent him and to seek a continuance
until his return from overseas.
hearing
was
continued,
the
After the September 2007
former
husband
terminated
the
services of that attorney; however, unknown to the former
husband, another hearing had been scheduled for December 13,
2007; nothing in the record indicates that the former husband
3
2090371
received formal notification from the trial court of that
December hearing date.
However, the record does contain a
November 2007 e-mail message from the former husband to the
former wife in which the former husband acknowledged "knowing"
that
a
December
hearing
date
regarding
support and medical bills had been set.
the
unpaid
child
The former husband
called his current wife in New Jersey and discovered that she
had not received any notice of an upcoming hearing, so he
"assumed" that there would be no hearing in December 2007.
When the former husband returned from Saudi Arabia in February
2008, he received
notification of the entry of a default
judgment that had been entered against him on January 31,
2008.
That
judgment
had
determined
the
former
husband's
child-support arrearage to be $29,000.
The former husband has contended that the January 2008
judgment is void because he did not have notice that the
hearing would review child-support payments back to the date
the parties had signed their separation agreement, August
2003,
that
judgment
in
was
subsequently
December
incorporated
2006.
He
claims
into
that
a
divorce
due
process
requires that he should have been notified by the trial court
4
2090371
that
the
former
wife
was
not
seeking
the
minimal
amount
originally alleged in her contempt complaint, i.e., $819 in
child support and $2,900 in unpaid medical bills.
The record
does not indicate that the former wife amended her contempt
complaint
to
reflect
any
increase
in
her
child-support-
arrearage claim; moreover, the record does not reflect that
any official notice of the December 2007 hearing was sent to
anyone other than the former husband's previous attorney.
The
record also reflects the fact that the former husband, acting
pro se, filed a motion for relief from the default judgment on
June 9, 2008. 1
filed
a
request
Then, on June 25, 2008, the former husband
seeking
a
modification
of
visitation,
a
modification of child support, and the right to claim the
child as a dependent for tax purposes and requests concerning
the
transportation
costs
relocation of the parties.
of
visitation
and
potential
The former wife filed an answer;
1
Although the former wife contends that that motion was
an untimely Rule 59, Ala. R. Civ. P., postjudgment motion
because (1) the motion was filed more than 30 days after the
entry of the judgment and (2) the former husband, albeit
inartfully, pleaded that the judgment was void on due-process
grounds, see Rule 60(b)(4), we conclude that the former
husband's postjudgment motion was a Rule 60(b) motion and we
treat it as such in this opinion. See, e.g., Ex parte Lang,
500 So. 2d 3 (Ala. 1986), and Curry v. Curry, 962 So. 2d 261
(Ala. Civ. App. 2007).
5
2090371
she also filed a counterclaim seeking an order requiring that
the
former
husband
be
instructed
to
obtain
professional
treatment for certain alleged substance-dependency and mentalhealth issues before being awarded unsupervised visitation
with the child.
The
trial
court
conducted
an
bifurcated
ore
tenus
proceeding to address all pending motions on April 21 and
August 31, 2009.
During the trial, the former husband and the
former wife testified; additionally, the child's maternal aunt
testified in support of the former wife's request that the
former husband be supervised by members of the former wife's
family
during
conclusion
of
future
the
visitation
second
day
of
with
the
trial,
child.
the
trial
At
the
court,
without objection from either party, conducted an in camera
interview of the child; that interview was not transcribed or
made a part of the record on appeal.
On September 30, 2009, the trial court entered a judgment
that denied the former husband's Rule 60(b) motion to set
aside the January 2008 judgment; that judgment also modified
the visitation provisions of the parties' divorce judgment and
awarded the former husband supervised visitation with the
6
2090371
child
during
specified
specifically
denied
modification
of
school
the
child
vacations.
former
support,
The
judgment
husband's
requests
for
a
as
a
to
claim
the
child
dependent for tax purposes, and for current and prospective
relief as to transportation costs of visitation.
In addition,
the former husband was ordered to be evaluated by a qualified
mental-health professional and to submit to periodic drug
testing every 60 days for a specific period; all results of
the court-ordered evaluation and tests were to be filed with
the trial court during 2010.
The trial court scheduled a
hearing to review the former husband's supervised visitation
for August 2010. 2
On
October
27,
2009,
the
former
husband
filed
a
postjudgment motion seeking either a new trial or that the
trial court alter, amend, or vacate the September 30, 2009,
judgment; the trial court denied that motion on December 30,
2009.
2
This appeal follows.
The former husband contends that
We conclude that, although the trial court scheduled a
hearing to review the former husband's supervised visitation,
the judgment was final. See K.L.U. v. M.C., 809 So. 2d 837,
840 (Ala. Civ. App. 2001) (concluding that judgment containing
supervised-visitation award to father was final and would
support an appeal, although trial court had already set a
hearing to review the father's supervised visitation).
7
2090371
the trial court could not properly deny his Rule 60(b) motion.
Additionally, the former husband asserts that the trial court
erroneously ordered him to undergo drug testing and a mentalhealth evaluation in order to obtain supervised visitation
with the child.
The former husband also contends that the
trial court erroneously
awarded the former wife an attorney's
fee.
As an initial matter, we note that the issues raised by
the former husband as it relates to the denial of his Rule
60(b)
motion
may
not
be
considered,
because
husband's appeal from that denial is untimely.
the
former
As we have
noted, the trial court denied the former husband's Rule 60(b)
motion on September 30, 2009; however, the former husband
waited until January 15, 2010, to appeal from that ruling.
"After a trial court has denied a postjudgment
motion pursuant to Rule 60(b), that court does not
have
jurisdiction
to
entertain
a
successive
postjudgment motion to 'reconsider' or otherwise
review its order denying the Rule 60(b) motion, and
such a successive postjudgment motion does not
suspend the running of the time for filing a notice
of appeal."
Ex parte Keith, 771 So. 2d 1018, 1022 (Ala. 1988); see also
Green v. Green, 43 So. 3d 1242, 1244 (Ala. Civ. App. 2009)
(trial
courts
lack
jurisdiction
8
to
entertain
successive
2090371
motions after entry of a final judgment requesting same or
similar relief as a party's original motion or requesting
reconsideration of denial of original postjudgment motion).
Thus, to the extent the trial court's September 30, 2009,
judgment denied the former husband's motion for relief from
the January 31, 2008, default judgment, the former husband's
filing of his October 27, 2009, motion did not suspend the 42day period for filing a notice of appeal as to the trial
court's denial of his Rule 60(b) motion. 3
The notice of
appeal filed on January 15, 2010, was not filed within the 42day appeal period following the entry of the September 30,
2009, judgment. See generally Rule 4(a)(1), Ala. R. App. P.
Because
the
former
husband's
appeal
of
the
trial
court's
denial of his Rule 60(b) motion is not timely, we dismiss that
portion of the appeal, and we address only those issues as to
which the former husband's appeal is timely.
The former husband also asserts that the trial court
erred in modifying the parties' divorce judgment to provide
that his visitation with the child should occur only when
3
"[T]he denial of a Rule 60(b) motion, because it is
appealable, is a final order." Ex parte King, 821 So. 2d 205,
209 (Ala. 2001).
9
2090371
supervised by the former wife or members of her family.
Our
standard of review is well established:
"The trial court has broad discretion in determining
the visitation rights of a noncustodial parent, and
its decision in this regard will not be reversed
absent
an
abuse
of
discretion.
Alexander
v.
Alexander, 625 So. 2d 433, 435 (Ala. Civ. App.
1993). Every case involving a visitation issue must
be decided on its own facts and circumstances, but
the primary consideration in establishing the
visitation rights accorded a noncustodial parent is
always the best interests and welfare of the child."
Carr v. Broyles, 652 So. 2d 299, 303 (Ala. Civ. App. 1994);
see also Pratt v. Pratt, [Ms. 2090249, August 20, 2010] ___
So. 3d ___ (Ala. Civ. App. 2010).
In addition, a trial court
establishing visitation privileges for a noncustodial parent
must consider the best interests
of the child, and, when
appropriate, it must set conditions on visitation that protect
the child. Ex parte Thompson, [Ms. 1080041, March 5, 2010) ___
So. 3d ___, ___ (Ala. 2010).
The former husband contends that the trial court did not
have any evidence
of his present condition upon which to
conclude that the best interests and welfare of the child
would
require
supervised.
that
the
former
husband's
visitation
be
The former wife testified that the former husband
had suffered from depression and substance-abuse issues during
10
2090371
the marriage and at the time the parties had separated in
2003.
At
admitted,
trial,
that
he
she
testified,
had
suffered
and
from
the
former
survivor's
husband
guilt
and
depression following the death of some military colleagues in
a
terrorist
bombing
in
Iraq
in
1996.
The
former
wife
testified that, based on that past
behavior, she and her
family
former
were
uncomfortable
with
the
husband's
most
recent attempts to visit with the child and had not allowed
him unsupervised visitation during the three years immediately
preceding the hearing in this case.
All
the
former
wife's
testimony
regarding
the
former
husband's depression and alcohol-related incidents was limited
to occurrences during the marriage and immediately after the
parties had separated in 2003; she even admitted during crossexamination that, since the divorce, she had not observed the
former husband do anything that could be deemed detrimental to
the child.
The maternal aunt's testimony related her concerns
with two of the former husband's visitations with the child
upon his last return from Iraq in 2005.
The former wife did
not offer any negative testimony regarding the former husband
as to the four years immediately preceding trial.
11
2090371
For his part, the former husband denied that he had a
substance-abuse problem; he stated that he had been "weaned"
from narcotic pain medication and was only taking non-narcotic
pain medication as a result of a recent back surgery; he
admitted
that,
several
years
previously,
he
had
been
prescribed narcotic medications to deal with back pain, but he
stated that he had not taken those medications for several
years.
Additionally, the former husband testified that he had
remarried and had been a productive citizen since the parties'
divorce, as evidenced by his acceptance into a medical school
in Pennsylvania and his years of service working for a private
security company that required its employees to pass drug
tests and other background tests in order to be hired and
remain employed.
The former husband also testified that he believed that
the
former
wife
and
her
family
had
interfered
with
his
relationship with the child, noting that they had discouraged
use of a cellular telephone that the former husband had given
the child and an Internet camera that he had purchased so the
two could see each other for virtual visits.
He stated during
the August 2009 hearing that the former wife had allowed him
12
2090371
to see the child
only once during 2009 (immediately following
the first day of trial in April).
In his brief to this court, the former husband notes that
at trial his attorney objected (on the grounds of remoteness
and relevance) to all the former wife's testimony regarding
his alleged substance-abuse and mental-health issues.
former
wife's
attorney
stated
that
he
would
tie
The
those
incidents to recent ones, but he never elicited testimony or
adduced
documentary
evidence
directly
indicating
that
the
former husband had exhibited those problems since 2005.
In
addition, the trial court specifically noted on the record
that, based upon the remoteness of the incidents referenced by
the former wife and the maternal aunt, the remoteness of the
incidents
testimony.
would
be
considered
in
giving
weight
to
that
Nevertheless, the trial court entered a judgment
requiring that the former husband's visitation "shall occur
only in Atmore, Alabama under the supervision of the former
wife or some person designated by the former wife and at
places designated by the former wife."
Previously, this court has affirmed orders of supervised
visitation in cases in which there were allegations that the
13
2090371
noncustodial parent had abused the child or had suffered from
serious psychological problems. See Carr v. Broyles, 652 So.
2d at 303; see also I.L. v. L.D.L., 604 So. 2d 425, 428 (Ala.
Civ. App. 1992) and Y.A.M. v. M.R.M., 600 So. 2d 1035 (Ala.
Civ. App. 1992).
More recently, it has been suggested that
"[o]nce the trial court has identified a particular danger to
the health, safety, or welfare of the child, and the record
establishes that some restriction on visitation is necessary
to
protect
the
child,"
the
trial
court
is
to
tailor
a
visitation order to target that specific concern. Jackson v.
Jackson, 999 So. 2d 488, 494 (Ala. Civ. App. 2007) (plurality
opinion
as
to
that
issue);
see
also
P.D.
v.
S.S.,
[Ms.
2090301, January 21, 2001] ___ So. 3d ___ (Ala. Civ. App.
2011), and V.C. v. C.T., 976 So. 2d 465 (Ala. Civ. App. 2007).
However, this court cannot determine from the record presented
that the supervised-visitation judgment at issue in this case
is not responsive to the circumstances of the former husband
and the child because the trial court's in camera interview of
the child was not recorded or otherwise made part of the
record on appeal.
In the absence of a transcript of an in
camera interview with a child, a reviewing court must assume
14
2090371
that
the
evidence
the
trial
court
received
during
that
interview is sufficient to support that court's judgment. See,
e.g., Waddell v. Waddell, 904 So. 2d 1275, 1279-80 (Ala. Civ.
App. 2004); Hughes v. Hughes, 685 So. 2d 755, 757 (Ala. Civ.
App. 1996); and Reuter v. Neese, 586 So. 2d 232, 235 (Ala.
Civ. App. 1991).
husband
has
Accordingly, we cannot say that the former
demonstrated
that
the
trial
court
erred
in
ordering supervised visitation to occur for a definite period.
Similarly,
the
former
husband
asserts
that
the
trial
court erred in requiring him to submit to drug screens, drug
counseling, and psychiatric counseling.
making
initial
custody
and
visitation
Just as a trial court
determinations
must
consider the best interests of the child, so must the trial
court determine the accuracy of alleged substance-abuse and
mental-health issues and their impact upon the child.
See,
e.g., Ex parte Devine, 398 So. 2d 686, 696-97 (Ala. 1981), and
Kovakas v. Kovakas, 12 So. 3d 693, 697-98 (Ala. Civ. App.
2008).
As noted previously, an award of visitation is within
the discretion of the trial court and must be decided based
upon the particular facts of each case. See, e.g., Mann v.
Mann, 725 So. 2d 989, 992 (Ala. Civ. App. 1998); see also
15
2090371
M.M.W. v. B.W., 900 So. 2d 1230, 1232-33 (Ala. Civ. App.
2004).
The former husband's challenge to the requirement that
he submit to drug screens, drug counseling, and psychiatric
counseling
during
the
specified
period
of
supervised
visitation fails for the same reason that his challenge to
supervised visitation fails.
evidence
the
trial
court
Because we must assume that the
received
during
the
in
camera
interview with the child is sufficient to support that court's
judgment, see Waddell, Hughes, and Reuter, supra, we cannot
conclude that the trial court erred in ordering the former
husband to submit testing and counseling in this case.
The former husband also contends that awarding the former
wife
$3,000
in
attorney's
fees
was
error.
The
Alabama
"legislature enacted § 30-2-54, Ala. Code 1975, to allow an
attorney-fee
divorce
or
award
to
to
recover
a
prevailing
unpaid
party
in
child-support,
actions
for
alimony,
or
maintenance awards." Pate v. Guy, 934 So. 2d 1071, 1072 (Ala.
Civ. App. 2005) (emphasis added).
Although the pertinent
"action" in this case primarily concerned child visitation, it
also
involved
the
propriety
of
a
judgment
addressing
the
former husband's compliance with child-support obligations;
16
2090371
thus, we conclude that § 30-2-54, Ala. Code 1975, does apply
in this case.
are
Alabama law is well settled that "attorney fees
ordinarily
available
in
modification
proceedings,
the
award and amount thereof lying within the sound discretion of
the trial court." Ebert v. Ebert, 469 So. 2d 615, 618 (Ala.
Civ. App. 1985) (citing
Bell v. Bell, 443 So. 2d 1258, 1262
(Ala. Civ. App. 1983)); see also S.R.E. v. R.E.H., 717 So. 2d
385, 388 (Ala. Civ. App. 1998). Cf. Pate v. Guy, 934 So. 2d at
1072-73 (because pertinent action concerned child visitation,
not support, attorney-fee award was not proper).
We dismiss that portion of the judgment relating to the
trial court's denial of the former husband's Rule 60(b) motion
as untimely.
We affirm the judgment as to its provision for
supervised visitation and its attorney-fee award.
AFFIRMED IN PART; APPEAL DISMISSED IN PART.
Thomas and Moore, JJ., concur.
Thompson, P.J., and Bryan, J., concur in the result,
without writings.
17
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