Robert K. Cash v. Lynn Cash Sumner

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REL: 06/29/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o formal 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 , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((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 2110015 Robert K. Cash v. Lynn Cash Sumner Appeal from Lee C i r c u i t (DR-05-399.01) MOORE, Court Judge. R o b e r t K. C a s h the Lee C i r c u i t the judgment i n p a r t ("the f a t h e r " ) appeals Court i na postdivorce and dismiss from a judgment o f proceeding. t h e appeal We i n part. affirm 2110015 Procedural On J u n e 2 9 , 2 0 0 7 , Sumner trial ("the History t h e f a t h e r a n d L y n n C a s h , now mother"), were divorced by a Lynn judgment Cash of the c o u r t ; t h a t judgment d i d not address m a t t e r s r e l a t i n g t o the p a r t i e s ' c h i l d r e n . addressing matters On January relating to 26, 2010, the a final parties' judgment children was "Complaint to entered. On Hold November 22, Defendant Order." On 2010, the mother i n Contempt January and complaint. On filed the mother February the J u n e 7, mother 20, 2011, filed 3, 2011, filed of Final an "Answer "Plaintiff's First and answered Amended 2011, t h e f a t h e r a n s w e r e d t h e amended A h e a r i n g was June [ f o r ] Enforcement 23, 2011, t h e f a t h e r the c o u n t e r p e t i t i o n and a l s o On a On Counterpetition." Complaint." filed held on J u n e 7, before a motion a final entitled 2011. judgment "Verified was Motion entered, to Hold Defendant i n Contempt f o r V i o l a t i o n of Court Orders," i n which she father alleged that children to her June 2011, 28, Motion the following the father to Hold Defendant had failed to timely his Father's filed a "Response i n Contempt 2 Day return visitation. to the On Plaintiff's f o r V i o l a t i o n of Court 2110015 O r d e r s and M o t i o n f o r C o n t e m p t " ; i n p a r t , mother had activity withdrawn the judgment. divorce without On one of the consent July 2011, an o r d e r a d d r e s s i n g t h e m o t h e r ' s in Contempt and children father's 14, Enforcement he a l l e g e d t h a t from a in violation the t r i a l court "Complaint to Hold of F i n a l Order" and the the sports of the entered Defendant father's counterpetition. On A u g u s t mother's 19, 2 0 1 1 , "Verified Violation of the t r i a l Motion Court c o u r t h e l d a h e a r i n g on to Hold Defendant Orders" and the P l a i n t i f f ' s Motion to Hold Defendant of the contempt his father's court notice a judgment On A u g u s t finding the 23, the visitation mother an of appeal to t h i s as the attorney court on to parties fee. 1 The O c t o b e r 4, had 2011, father of court f o r h i s f a i l u r e to return the c h i l d r e n F a t h e r ' s Day awarding entered "Response for i n Contempt f o r V i o l a t i o n C o u r t Orders and M o t i o n f o r Contempt." trial i n Contempt the in after agreed and filed his father 2011. A l t h o u g h t h e t r i a l c o u r t d i d n o t e x p l i c i t l y r u l e on t h e f a t h e r ' s "motion f o r contempt," the t r i a l c o u r t " s u f f i c i e n t l y i n d i c a t e [ d ] an i n t e n t i o n to [deny the father's motion]." F a e l l a c i v. F a e l l a c i , 67 S o . 3 d 9 2 3 , 925 ( A l a . C i v . App. 2011). 1 3 2110015 Discussion On erred appeal, the i n f i n d i n g him return the says, there was argues because the that the the appeal, provision the in the stated [divorce in the judgment father to p a r t i e s because, he the divorce award should does not the trial appear deny the He be reversed note, We endeavor." judgment returned. however, that "general i t s judgment not court failure judgment] require does trial for his in error. communicate i n t h i s divorce the c h i l d r e n w e r e t o be attorney-fee court that court in c o n t e m p t f i n d i n g was c o o p e r a t e and of no that argues agreed between the time t h a t the trial provisions first i n contempt of c h i l d r e n as s p e c i f y i n g the also father the parents Although a in the copy record existence of to on that provision. In had i t s judgment, agreed that the m o t h e r a t 8:00 a.m. court further found sent text father a agreement and The father then did not father the would day that, found that return the on the to his return night the mother telephone the 4 of Day. Father's reneging o f f and children the parties children following Father's message turned court at to The Day, the trial the on that went t o bed. 8:00 a.m. the 2110015 f o l l o w i n g day. We have reviewed and conclude t h a t the the evidence that the presented trial that contempt the requiring See, (Ala. Civ. App. divorce f i n d i n g s are mother. not father's general S t a t e ex mother " ' f a i l e d the the the did cooperation e.g., court's by court determining of trial the t r a n s c r i p t of the We exceed actions provisions rose the level parties. 680 comply w i t h which the So. finding spirit r e q u i r e d the 2d 339, the letter and mother of "to m i n o r c h i l d r e n " ( q u o t i n g B r o a d n a x v . B r o a d n a x , 558 (Ala. finding the attorney The orally matters trial Civ. fee App. father is father maintain court did in So. 2d the 929, The contempt court's of trial judgment and awarding the mother an trial court erred in with regard to affirmed. next instructing outside 1989)). 343 when c l o s e contact w i t h the [ f a t h e r ] r e l a t i v e to the w e l f a r e 930 of judgment ( a f f i r m i n g contempt decree,'" the in divorce r e l . N a t h a n v. N a t h a n , to f u l l y conclude discretion to by communication between the and 1996) supported further i t s of hearing of that the parties the pleadings. not matters i n writing. argues set forth the at the As its trial the i n s t r u c t i o n s on " R u l e 5 8 ( a ) [ , A l a . R. 5 father notes, C i v . P.,] the those does not 2110015 a l l o w f o r an o r a l Chamblee, extent on 899 r e n d i t i o n o f a judgment o r o r d e r . " So. 2d that the t r i a l matters outside 244, court that i s challenged. ( A l a . C i v . App. APPEAL DISMISSED Thompson, attempted to enter Thus, to the an o r a l judgment I N PART; P . J . , and 2006). to the S . J . S . v . B.R., 949 2 JUDGMENT A F F I R M E D Pittman, order i s not i n 5 8 , a n d we m u s t d i s m i s s t h e a p p e a l extent that the oral order 2 d 9 4 1 , 944 ( A l a . 2004). the pleadings, compliance with Rule So. 248 Ex p a r t e Bryan, and IN PART. Thomas, J J . , concur. The m o t h e r a r g u e s t h a t t h e o r a l o r d e r i s moot. we a r e d e c l i n i n g t o a d d r e s s t h e m e r i t s o f t h e o r d e r , not c o n s i d e r the q u e s t i o n o f mootness. 2 6 Because we n e e d

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