Barry V. Frederick v. Shelia Frederick

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REL: 03/23/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , Alabama 36104-3741 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2101144 Barry V. F r e d e r i c k v. Shelia Frederick Appeal from J e f f e r s o n C i r c u i t (DR-94-3189.02) Court MOORE, J u d g e . Barry judgment finding contempt V. F r e d e r i c k ("the f o r m e r husband") of the Jefferson that Circuit Shelia Frederick and o r d e r i n g Court appeals ("the t r i a l ("the f o r m e r w i f e " ) the former husband from a court") was n o t i n t o pay t h e former 2101144 wife in $3,220 as a t t o r n e y fees. We affirm i n part and reverse part. Background The former p a r t i e s were m a r r i e d husband complaint, living entered a judgment settlement 6.a.(4), to and w i f e seeking a divorce; i n that he a n d t h e f o r m e r w i f e on A p r i l personal The t r i a l 19, 1996. agreement contained, the following p r o v i s i o n , i d e n t i f i e d divide their they The had court trial t h a t judgment t h e p a r t i e s ' s t i p u l a t e d agreement; that which s e t f o r t h had ceased 1994 b u t t h a t a f t e r that time. of divorce into I n September 1994, t h e as o f June to reside together incorporated things, a complaint he a l l e g e d t h a t as h u s b a n d continued court filed i n 1978. as among other subparagraph t h e manner i n w h i c h t h e p a r t i e s were property: "(4) Wife s h a l l receive the drapes, washer, dryer, dishwasher, and refrigerator in the residence. Husband s h a l l r e c e i v e t h e e n t e r t a i n m e n t center i n the den. "It i s the intent of the p a r t i e s that a l l other household furniture, furnishings, and other household items ( i n c l u d i n g , but not l i m i t e d t o , bed l i n e n s , s h e e t s , t o w e l s , d i s h e s , g l a s s e s , pots and p a n s , e t c . ) be d i v i d e d e q u a l l y b e t w e e n them w i t h t h e e x c e p t i o n o f t h e c h i l d ' s f u r n i t u r e w h i c h s h a l l be r e t a i n e d by Wife. To c a r r y o u t t h e t e r m s o f t h i s p a r a g r a p h , e a c h p a r t y s h a l l make a l i s t o f t h o s e i t e m s he o r s h e w a n t s . A f t e r compiling the l i s t s , 2 2101144 a n y i t e m s r e m a i n i n g i n d i s p u t e s h a l l be s e l e c t e d b y the p a r t i e s w i t h a l t e r n a t e s e l e c t i o n s w i t h the Wife s e l e c t i n g f i r s t f o l l o w e d by H u s b a n d , and so f o r t h u n t i l a l l i t e m s have been d i v i d e d . In the event a d i s p u t e s h a l l a r i s e , the p a r t i e s agree t h a t Judge J o h n B r y a n s h a l l s e r v e as m e d i a t o r t o e f f e c t u a t e t h e intent of this paragraph. Husband shall be responsible for his fee." I n J u l y 1997, nisi on seeking the the former wife a finding ground that filed of contempt the former a petition against husband was docketed answered alleged comply as the the subparagraph a "Consent the trial the 1999 divorce order, other judgment. The 6.a.(4) parties to whether located 6.a.(4) on conduct at things, trial and an the January the trial former 3 of action he for failing to judgment. 26, 1999, court husband's which In specifically 6.a.(4) specific their in entry i n contempt. specifically a husband r e s u l t e d i n the subparagraph inventory comply i n which of the d i v o r c e identified to former i n contempt court husband that counterclaim petitions entered among subparagraph was a The f o u n d t h a t n e i t h e r p a r t y was consent addressed, wife contempt Order," court filed failed judgment; DR-94-3189.01. and former Those c o m p e t i n g of no. petition that with case the former had w i t h numerous p r o v i s i o n s of t h e d i v o r c e for a rule of the reaffirmed date personal residence f o r the property, or the 2101144 former the wife's parties wished to In the residence, to exchange trial the a list court former to comply consent the order; designated the entered former enrichment elements enrichment -- the property former property, for each wife and regarding from of claims the also alleged division sought the marriage. former his that or use husband claims the of i n her p o s s e s s i o n . provide after the an belonging right The wife of the unjust establish and had unjust illegally to the former t o the use trial accounting former 4 no wife an former and not conversion former of p r o p e r t y could the That In 2008, of conversion in conversion a summary j u d g m e n t i n f a v o r o f t h e the to action alleging CV-07-902727. husband or t h a t the f o r m e r w i f e had personal property a civil husband property as c a s e no. namely, assumed o w n e r s h i p wife, former husband's because essential former the a c t i o n was on date s e t f o r t h i n t h e d i v o r c e judgment and of the p e r s o n a l court initiated the p r o v i s i o n s accounting wife specific as a r e s u l t o f t h e f o r m e r w i f e ' s with of p e r s o n a l p r o p e r t y trial a of the p e r s o n a l husband against and u n j u s t e n r i c h m e n t 1999 identified receive. 2007, failure and of the court ordered the personal provided a list 2101144 i d e n t i f y i n g the p e r s o n a l p r o p e r t y from the m a r i t a l e s t a t e had remained the former husband trial court, concluded. The as case the i n h e r p o s s e s s i o n and t h e p e r s o n a l p r o p e r t y t h a t had removed from t h e m a r i t a l r e s i d e n c e , t h e on S e p t e m b e r 1 2 , 2 0 0 8 , f o u n d t h a t former wife i n contempt with sub-paragraph the trial trial court's 13, 1999 was dismiss trial On judgment f i n d i n g to failure t o comply of the divorce judgment and w i t h consent The 10, that order. generally former wife and award conducted May comply f o rher alleged the action court this action, designated o n May 2 1 , 2 0 1 0 , s e e k i n g t o h o l d petition, allegations. 2011. failing 6.a.(4) t h e contempt court The then i n i t i a t e d no. DR-94-3189.02, husband's the action 1 former husband answered that The denying that her attorney h e a r i n g on court wife the former requested an o r e t e n u s 2011, t h e t r i a l former the fees. April entered i t s t h e f o r m e r w i f e was n o t i n c o n t e m p t f o r with subparagraph 6.a.(4) and t h e 1999 In her "Notice of F i l i n g Accounting" f i l e d with the t r i a l c o u r t , t h e f o r m e r w i f e i d e n t i f i e d room b y room t h e i t e m s o f p e r s o n a l p r o p e r t y t h a t the former husband had taken w i t h him from t h e p a r t i e s ' former m a r i t a l r e s i d e n c e and t h e i t e m s t h a t h a d r e m a i n e d w i t h h e r . She a l s o i n d i c a t e d t h a t , s i n c e t h e d i v o r c e , she h a d t u r n e d o v e r a d d i t i o n a l i t e m s t o t h e f o r m e r h u s b a n d , " s u c h as m o u n t a i n b i k e , w e i g h t s a n d w e i g h t b e n c h e s , p e r s o n a l b e l o n g i n g s , and f a m i l y h e i r l o o m s , e t c . " 1 5 2101144 consent order. husband t o pay The The trial court $3,220 t o t h e former husband also former filed a ordered wife motion as to the attorney alter, trial; the t r i a l court denied timely filed or for a new c o u r t ' s judgment o r , a l t e r n a t i v e l y , his notice of The fees. amend, vacate the t r i a l that motion. former former husband appeal. Analysis The former attorney wife's fees, husband c h a l l e n g e s the t r i a l counsel to ask court's and f o r m e r w i f e was i n contempt. of trial first address court's entitled to former husband. wife's the the finding address of former of the former w i f e court's We had former that leading wife that those issues the husband's former questions been called challenge wife's of her own to testify the was allowed former wife the to wife's ask counsel answers she 6 the was former able wished to to counsel client by former husband a s s e r t s t h a t , because counsel former ruling ask The questions, the trial award on the out order. We the the court's d e c i s i o n to allow leading questions cross-examination, not the t r i a l was because the former the wife the former leading to simply feed obtain, thus 2101144 prejudicing him to the point of reversible error. We disagree. Rule 6 1 1 ( c ) , A l a . R. E v i d . , p r o v i d e s , i npertinent part, t h a t " [ l ] e a d i n g q u e s t i o n s a r e p e r m i t t e d on c r o s s - e x a m i n a t i o n . " That principle has been numerous that Advisory Committee's part, that, always trial be Blakley supporting "[u]nder 611 s t a t e , leading Our i n pertinent questions should Further, "'the 2 discretion i n evidentiary matters.'" [Ms. 2 0 9 0 5 0 7 , O c t . 29, 2010] So. 3d Insurance C o . , 5 7 6 S o . 2 d 1 7 5 , 177 ( A l a . supreme c o u r t has a d d r e s s e d former husband. Co., 628 so The ( A l a . C i v . App. 2010) ( q u o t i n g Bush v. Alabama Bureau Mut. C a s . I n s . the to Rule 611(c), i n cases are unnecessary. on c r o s s - e x a m i n a t i o n . " has broad v. Johnson, , Rule and a p p l i e d citations Notes permitted court recognized I n Newman So. 2d 439 the exact v. appealed f r o m an a d v e r s e judgment e n t e r e d Fidelity Life Company. Insurance 1991)). i s s u e r a i s e d by Bankers (Ala. Farm 1993), Fidelity Madie Life Newman i n favor of Bankers On a p p e a l , Newman argued, E v e n on d i r e c t e x a m i n a t i o n , "[w]hether t o allow or disallow a leading question i s within the d i s c r e t i o n of the t r i a l c o u r t and e x c e p t f o r a f l a g r a n t v i o l a t i o n t h e r e w i l l n o t be r e v e r s i b l e e r r o r . " B r a d f o r d v . S t a n l e y , 355 So. 2d 328, 331 (Ala. 1978). 2 7 2101144 among o t h e r Bankers that the things, that Fidelity's insurance lawyer's the t r i a l lawyer client, by t h e use o f l e a d i n g stated: the president the [of representative at the defendants' adverse witness noting that P., allows judge t h e supreme of court The former distinguishable the supreme c o u r t because, Choate, and i t s trial, as an After within sound the 43(b), questions summarily Thus, A l a . R. on affirmed cross- the t r i a l o u r supreme questions when court cross- c l i e n t was c a l l e d as argues Newman, the instant relied that i s case because, on s u b d i v i s i o n i n Newman, o u r supreme 8 supra, i n that (b) o f R u l e R. C i v . P., w h i c h s u b d i v i s i o n h a s s i n c e b e e n o m i t t e d rule; at party. husband from Id. Eugene Rule leading use of l e a d i n g by t h e other questions. I d . a t 442. are e x a m i n i n g h i s o r h e r own c l i e n t when t h a t a witness of during and t h a t I d . a t 442-43. a lawyer's table matters the use ruling. sanctioned representative company] examination." evidentiary of the t r i a l examination, court's on d i r e c t of "Newman c a l l e d insurance i n allowing the president company, i . e . , t h e c o r p o r a t e The s u p r e m e c o u r t Civ. had erred to cross-examine 443. discretion court court case, 43, A l a . from d i d not that discuss 2101144 the extent case; of the cross-examination and because indication general that rule. t h e supreme Newman We reject Although subdivision been omitted Committee 43 from argued those court's decision i n that contains application no of the arguments. (b) o f R u l e 4 3 , A l a . R. C i v . P., h a s t h e Alabama i n pertinent had occurred against Rules Comments t o t h e J a n u a r y provide, that of C i v i l Procedure, the 1, 1 9 9 6 , Amendment of Rule part: " ' S u b d i v i s i o n ( b ) . The s u b d i v i s i o n i s no l o n g e r needed or a p p r o p r i a t e since the matters with which i t dealt are treated i n the Rules of Evidence. The use o f l e a d i n g q u e s t i o n s , b o t h g e n e r a l l y and i n t h e interrogation of an adverse party or witness i d e n t i f i e d with him, i s the subject of Evidence Rule 611(c). Thus, R u l e ...'" 4 3 ( b ) was o m i t t e d Procedure because Rule issue from 611(c), t h e Alabama Rules A l a . R. E v i d . , of covers Civil t h e same a n d i s deemed t o h a v e n e g a t e d t h e n e e d f o r , a n d t o h a v e replaced, Rule specifically 43(b). allows As noted the use of l e a d i n g above, Rule questions 611(c) on cross- appellate court, examination. We f u r t h e r n o t e t h a t , a s a n i n t e r m e d i a t e we a r e b o u n d b y t h e h o l d i n g s K a n e l l i s v. P a c i f i c o f o u r supreme c o u r t . See, e.g., I n d e m . C o . , 917 S o . 2 d 1 4 9 , 154 ( A l a . C i v . 9 2101144 App. 2005). Because s i t u a t i o n before leading court in this in the we find case, same no failure to f i n d to judgment argues and the approved allowed consent of d u r i n g her court court support So. failure to benefit of (quoting 3d in turn However, determination not (Ala. act Dyas, required other 28 a committed an had Civ. this 3d issue. court 6, 8 erred alleged the divorce husband find the the that the former former canceled the wife court- inventory. As on H o o d 2011) v. ("'"'The court constitutes c i v i l So. trial former App. by of for the contempt.'"'" ( A l a . C i v . App. 2009), cases)). "whether absent the former husband r e l i e s 831 an to says, rescheduled opposing party Reed v. and, 824 , perform an had he t h a t she f o r h i s argument, the 76 and by of The required because, testimony the use trial 6.a.(4) order. was precise i n contempt f o r her 1999 trial the r e v e r s i b l e e r r o r on subparagraph inventory court, manner former wife ordered quoting and with the that admitted the comply i n contempt Hood, addressed former husband next argues t h a t the failing wife supreme c o u r t i n Newman, s u p r a , questions The in us our party to abuse the of 10 is in contempt sound d i s c r e t i o n that discretion of of or court the unless is a trial the 2101144 judgment of the t r i a l a s t o be p l a i n l y Stack v. court i s unsupported and p a l p a b l y wrong, Stack, 646 So. 2d 51, by t h e e v i d e n c e this 56 court w i l l affirm." ( A l a . C i v . App. T h u s , we r e v i e w t h e e v i d e n c e t o d e t e r m i n e finding, i . e . , that was contempt, i s so u n s u p p o r t e d 1 994). i f the t r i a l the and p a l p a b l y wrong. to to the former do on wife, appeal proceedings. Civ. App. The trial other items the evidence the p r e v a i l i n g Driver v. party, judgment Hice, guilty a s t o be a s we on So. 129, 2d of plainly favorably are based 618 court the heard testimony of p e r s o n a l p r o p e r t y from former planned wife's knowledge the required ore tenus 131 ( A l a . t o remove those she p r e p a r e d remaining i n h e r p o s s e s s i o n and t h a t selection from that was or items. list, a list which, i n accord with 11 former furniture the m a r i t a l The knowledge former wife and residence acquiescence. t h a t s h e h a d h a d no p r i o r that believed from 1996, t h e f o r m e r h u s b a n d removed testified she not c o n s t r u e t h e e v i d e n c e most a former w i f e t e s t i f i e d had wife court's 1993). in April he by from See that, without We former so wife The that also of the p e r s o n a l p r o p e r t y she indicated the former subparagraph wife her first testified, 6.a.(4). The 2101144 former wife lawyer then testified and t h a t provided former passage i t was who by her understanding by that of t h i s action lawyer, testified testified that list was the former wife submitted list. The f o r m e r f u r n i t u r e and f u r n i s h i n g s . wife testified process order in light of testified that April the from of that the " a l l "of their the m a r i t a l 6.a.(4) husband's personal residence when she had b e l i e v e d 12 into list he with evidence stated: " A l l The former the selection "list" property. consent and h i s She the items abruptly and a t t e m p t i n g the former wife. that from the o r t h e 1999 husband had taken with to the t o comply not proceed with than making a l i s t property longer V. F r e d e r i c k . " former the former 1996 r a t h e r personal stated she c o u l d s e t out i n subparagraph selection wanted that husband's Barry no she had r e c e i v e d subparagraph of that The available to her. i n order copy was due that, he h a d p r e p a r e d a to her counsel. former husband a l i s t 6.a.(4); list her l i s t legal she d i d n o t have t h a t former wife that husband's the time t h e same of time, The she then p r o v i d e d to the former wife, represented that also he h a d left in to divide The f o r m e r wife t h e former husband had been 2101144 satisfied with she her filed The consent wife order that inventory for documentary June former wife a 1, later admitted due she had a later evidence 1999, husband's had, of the in that date. medical not date; lawyer, written In her letter, reasons. to She the by upon former the former the the initially that reviewing husband, i . e . , former apparent in reschedule wife that to reschedule the the canceled scheduled however, i t became attempted had date attempted until 3 she the i n t r o d u c e d by letter in fact, to personal property 1997. o f p e r s o n a l p r o p e r t y on testified a division contempt p e t i t i o n former inventory 1999 that wife the to the former inventory for stated: " R e g a r d i n g t h e i n v e n t o r y , as you a r e a w a r e , I had t o c a n c e l t h e p r e v i o u s d a t e s due t o m e d i c a l r e a s o n s . The last I heard, John, from your office, was c o n t a c t i n g Mr. Shaw f o r new d a t e s a n d t o d a t e h a v e During the former husband's deposition, taken in c o n n e c t i o n w i t h h i s 2007 c i v i l s u i t f o r damages, t h e f o r m e r h u s b a n d was a s k e d how he d e t e r m i n e d w h i c h i t e m s o f p e r s o n a l p r o p e r t y he was g o i n g t o t a k e f r o m t h e m a r i t a l r e s i d e n c e on April 30, 1996, when he moved o u t ; t h e f o r m e r husband r e s p o n d e d : " [ I ] f I c o u l d h a v e , I w o u l d have t a k e n e v e r y t h i n g . " He t e s t i f i e d t h a t he " s t a r t e d i n t h e f i r s t room ' t i l she ... I g o t as f a r as I c o u l d . " He e x p l a i n e d t h a t t h e f o r m e r w i f e h a d summoned t h e p o l i c e t o t h e m a r i t a l r e s i d e n c e , a t w h i c h time the former husband stopped removing a d d i t i o n a l items of p e r s o n a l p r o p e r t y . A copy o f t h a t d e p o s i t i o n t r a n s c r i p t i s i n c l u d e d i n the record. 3 13 2101144 h e a r d n o t h i n g from him. Y o u know t h a t [ t h e f o r m e r h u s b a n d ] came i n t o my h o u s e a n d t o o k e x a c t l y w h a t he w a n t e d when he m o v e d o u t a n d he d i d n o t f o l l o w t h e divorce decree." Based to on t h a t state ordered The taken letter, that she inventory the former w i f e c o r r e c t e d her had attempted former w i f e also her, reschedule the court- of the p e r s o n a l p r o p e r t y . i n connection with against to testimony the testified that, during a deposition t h e f o r m e r h u s b a n d ' s 2007 c i v i l former husband had indicated that suit he was s e e k i n g an a w a r d o f d a m a g e s e q u a l t o t h e m o n e t a r y v a l u e o f t h e items rather than the return former husband acknowledged personal In the identify have p r o p e r t y be present items. 4 action, The to f o r m e r husband had no items themselves; the t h a t he h a d n o t r e q u e s t e d t h a t the former i n the 2007 c i v i l husband was he wife could not testified interest identify that she any any suit. asked i t e m s o f p e r s o n a l p r o p e r t y he w i s h e d him; former the r e t u r n e d t o him the s p e c i f i c returned of to to specific believed i n o b t a i n i n g p o s s e s s i o n of the the The former husband a d m i t t e d t h a t he h a d no list of p e r s o n a l p r o p e r t y w i t h h i m a t t h e A p r i l 2011 hearing. He t e s t i f i e d t h a t t h e p a r t i e s c o u l d use t h e f o r m e r w i f e ' s list and t h a t he " w a n t [ e d ] t o go t h r o u g h t h e s e l e c t i o n p r o c e s s [and] t h e n I can t e l l you what [ i t e m s I w a n t ] . Otherwise, s h e ' d r u i n what I p i c k e d . T h a t ' s t h e way she i s . " 4 14 2101144 p r o p e r t y made t h e b a s i s o f h i s r e p e a t e d he was interested only The former former wife in he property, he was filed former wife refusal to that the former not he his because property t o him. The The list divorce, of had to the to former dividing in the engage seeking "salty" language to the damages with personal property. provided a husband, personal frustration ever from her list former former wife h i s weights, the repeated He of denied personal former husband, however, admitted the the the According that, had provided and a weight bench him with from residence. f o r m e r h u s b a n d a c k n o w l e d g e d t h a t he personal property furnishings" and the personal marital contacted attempting him action his had family heirlooms, marital of informed parties' wife the he telephone subject civil of former certain that getting anything. d i v i d e the the her. According wife the since by property. raised the husband, testified that s e t f o r t h i n s u b p a r a g r a p h 6.a.(4) to d i v i d e personal whenever that husband m u l t i p l e times the process parties' in harassing l e g a l a c t i o n s but that that stated i t represented property. 15 had prepared the " A l l furniture and his desired division According to the of former 2101144 husband, he was the personal was not The not property entitled trial to court "misrepresenting Based required on to select from the the former [subparagraph above husband's v e r s i o n of events, the property in and consent had order cursed that process. In the former husband took without c o n s u l t i n g her, personal property date and repeatedly former possession. that he was Court." evidence, i t is clear court. In the that former s e t out to at him i n the divide the w h e n e v e r he divorce judgment parties' personal attempted to engage former w i f e ' s v e r s i o n of events, whatever personal property r e f u s e d t o make a l i s t i n v e n t o r y as he of the f i l e d l i t i g a t i o n w i t h the by the intent the wanted specific refused to reschedule ordered to trial the court, to harass the wife. "In judge the of wife the former w i f e simply r e f u s e d in his possession, to complete the to the former in his husband the t r i a l i n the procedures 1999 items the list c o n f l i c t i n g v e r s i o n s of events were open t o i n t e r p r e t a t i o n by and itemized and 6.a.(4)] summary o f t h a t the p a r t i e s p r e s e n t e d participate an in his possession informed the provide of ore the tenus facts proceedings and of the 16 the trial court credibility of is the sole witnesses." 2101144 D r i v e r v. v. Hice, Stewart, 618 905 So. So. 2d a t 1 3 1 . 2d 7 97 I n New P r o p e r t i e s , L.L.C. ( A l a . 2004 ) , our supreme court stated: " [ W ] h e n a t r i a l c o u r t m a k e s no s p e c i f i c f i n d i n g s o f fact, ' t h i s C o u r t w i l l assume t h a t t h e t r i a l judge made those findings necessary to support the judgment.' Transamerica Commercial F i n . Corp. v. A m S o u t h B a n k , N.A., 608 So. 2 d 3 7 5 , 378 ( A l a . 1 9 9 2 ) . Under the ore tenus r u l e , ' " a p p e l l a t e c o u r t s are not a l l o w e d t o s u b s t i t u t e t h e i r own j u d g m e n t f o r t h a t o f the t r i a l court i f the t r i a l c o u r t ' s d e c i s i o n i s s u p p o r t e d b y r e a s o n a b l e i n f e r e n c e s t o be d r a w n f r o m the evidence."' Yates v. E l Bethel Primitive B a p t i s t Church, 847 So. 2 d 3 3 1 , 345 ( A l a . 2002 ) ( q u o t i n g E x p a r t e P i e l a c h , 681 So. 2 d 1 5 4 , 155 ( A l a . 19 9 6 ) ) . " 905 So. trial 2d a t 7 9 9 . court's sufficient that she judgment, to support judgment attempted set forth -- and, judgment. the trial of conclude former in wife's good trial next court failure we find address erred the to f i n d to evidence to no of was of events comply 6.a.(4) sufficient Therefore, the version faith subparagraph therefore, that to the with the support -¬ the divorce the trial reversible error in court. We court's in the attendant presumptions we the had procedure court's Applying former in ordering the former wife husband's him 17 t o pay i n contempt argument to the that former the wife 2101144 $ 3 , 2 2 0 as attorney fees. Robbins v. (Ala. award defendant Payne, [Ms. C i v . App. attorney 4, (recognizing i n a contempt C i v . App. Sosebee 2004) precludes ("We the v. agree that award to of the So. awarded a a So. e.g., 3d , court modify 557, attorney i n a c o n t e m p t a c t i o n when t h e t r i a l fee to ("As v. to Deines, unpaid proceedings may 424 So. alimony, not be 2d 1334, 1335 court f a i l s 'attorney's awarded when no ( A l a . C i v . App. fees in contempt 30the make a f i n d i n g o f c o n t e m p t a g a i n s t t h e d e f e n d i n g p a r t y . " ) ; Deines of 564 [ A l a . Code 1975,] § an may divorce finding 2d the former be a trial 896 in See, i n which Sosebee, that to 2011] proceeding i s made); in fees basis contempt. proceeding contempt petitioner in a and 2-54[,] found 2 1 0 0 4 2 7 , Nov. 2011) fees judgment (Ala. is attorney no I n c o n t e m p t p r o c e e d i n g s , a t t o r n e y f e e s may the of find wife. when award We to only an agree. record 5 support We to and 1983) enforcement citation is The former wife relies on the Alabama Litigation A c c o u n t a b i l i t y A c t ("the A L A A " ) , A l a . Code 1976, §§ 12-19-270 t o -276, as s u p p o r t f o r t h e t r i a l c o u r t ' s a w a r d t o h e r of $3,220 i n a t t o r n e y f e e s . The f o r m e r w i f e , h o w e v e r , d i d n o t a s s e r t a c l a i m u n d e r t h e ALAA i n t h e t r i a l c o u r t , and the t r i a l c o u r t s t a t e d no g r o u n d s i n s u p p o r t o f i t s a t t o r n e y - f e e a w a r d , as w o u l d be r e q u i r e d t o s u p p o r t an a w a r d u n d e r t h e ALAA. We, t h e r e f o r e , r e j e c t t h e a r g u m e n t s p r e s e n t e d by t h e f o r m e r w i f e on t h e a t t o r n e y - f e e i s s u e . 5 18 2101144 made.'" Civ. (quoting App. 1979)). counterclaim required former trial husband the former wife i n contempt. We, to the extent Thompson, I N PART; R E V E R S E D P . J . , and concur. 19 court therefore, the as a t t o r n e y Bryan, a as found reverse i t ordered wife assert and t h e r e c o r d the t r i a l I N PART; AND Pittman, not f o r contempt C i v . P., that t o p a y $3,220 t o t h e f o r m e r AFFIRMED did husband A l a . R. out any p o s s i b i l i t y judgment 3 7 5 S o . 2 d 7 9 7 , 799 ( A l a . former 70A(c)(1), husband court's v. S c o t t , The against by R u l e does n o t bear the Scott the former fees. REMANDED. and Thomas, J J . ,

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