Jeffery Maudsley v. Lisa Maudsley

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REL: 04/15/2011 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 , A l a b a m a 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, 2010-2011 2091137 J e f f e r y Maudsley v. L i s a Maudsley Appeal from Etowah C i r c u i t Court (DR-09-394) PER CURIAM. AFFIRMED. See R u l e v. S m i t h , NO OPINION. 53(a)(1) and (a)(2)(F), A l a . R. A p p . P.; 887 S o . 2 d 2 5 7 , 265 ( A l a . C i v . A p p . 2 0 0 3 ) ; Smith a n d Moore 2091137 v. 926 Prudential Residential L t d . P'ship, 849 So. 2 d 914, ( A l a . 2002). Bryan, J., Servs. J . , concurs specially, with writing, w h i c h Thomas, joins. Thompson, Moore, P.J., concurs J . , dissents, i n the result, with joins. 2 writing, without which writing. Pittman, J., 2091137 BRYAN, J u d g e , concurring I agree that due t o be Jeffery commit i.e., affirmed. Maudsley, the their the wife, custodial Etowah C i r c u i t I w r i t e s p e c i a l l y t o n o t e my appellant, error trial Lisa I n f i r m a r y Med. judgment o f the the alleged that former the specially. that court he erred Maudsley, periods C t r . v. invited from with complained by So. opinion trial of 2d 801, to -¬ and alcohol his during See 808 that court him children. is appeal on enjoining consuming their H o d g e n , 884 the Court Mobile ( A l a . 2003) ( d i s c u s s i n g the invited-error doctrine). Because i t i s " w e l l settled party error c o u r t and id., that a not then attempt to win I believe affirmed may on the the Thomas, J . , induce a r e v e r s a l b a s e d on judgment of basis of the an the trial court by the that error," could invited-error doctrine. concurs. 3 trial also be 2091137 MOORE, J u d g e , d i s s e n t i n g . Jeffery judgment court") Maudsley entered to the by ("the the extent father") Etowah that appeals Circuit from Court i t restricts him a divorce ("the from trial consuming a l c o h o l d u r i n g h i s v i s i t a t i o n p e r i o d s w i t h the c h i l d r e n of marriage to Lisa court, i n a no-opinion court's Civ. Maudsley order judgment, c i t i n g App. mother f a t h e r on May testified filed 20, that she Smith, complaint his a for alcoholic beverages. include a At t r i a l , home at which The this a f f i r m s the trial 887 provision from periods So. 2d that, during attended and they his any the never drank J u n e 1, the and 257 (Ala. requested with would to the 4 2010, and his drink consumed that point the of few trial prohibiting during the The beers, the his father children f r i e n d s at a mother friends children. he the the holding beverages parties' marriage, against father's his alcoholic barbecues friends he divorce i t s judgment of v i s i t a t i o n w i t h the frequently consuming in a of mother father testified on disapproved at stated, A m a j o r i t y of of a f f i r m a n c e , S m i t h v. 2009. "parties" father mother"). 2 003) . The court ("the his had which the but, he intoxication. The 2091137 mother does n o t d r i n k a l c o h o l b e c a u s e o f e i t h e r an a v e r s i o n t o or an a l l e r g y t o t h e s u b s t a n c e , attended the barbecues with eventually quit drove children the going and, a l t h o u g h the father altogether, to and from incident. The f a t h e r testified separated, he s t a r t e d h o l d i n g she initially and t h e c h i l d r e n , she after those that, which the gatherings after father without the p a r t i e s had t h e b a r b e c u e s a t h i s home. The f a t h e r d e n i e d h a v i n g any a l c o h o l problem o r any f a m i l y h i s t o r y of alcohol abuse, a n d he indicated that a r r e s t e d f o r an a l c o h o l - r e l a t e d o f f e n s e . that he did restriction it not want but that or trial among o t h e r during court things, among o t h e r things, alcohol-consumption trial court entered divorce judgment, The f a t h e r the been testified alcohol-consumption court. entered a j u d g m e n t o n J u n e 2, 2 0 1 0 , t h a t , enjoined custodial periods." a motion t o a l t e r , had never he w o u l d a b i d e b y s u c h a r e s t r i c t i o n i f was o r d e r e d b y t h e t r i a l The need he the parties from "using On J u n e 1 8 , 2 0 1 0 , t h e f a t h e r amend, o r v a c a t e t h e j u d g m e n t , that the t r i a l restriction. an o r d e r alcohol court On modifying but i t declined 5 filed requesting, vacate or modify the August 11, 2010, t h e certain portions to modify of the or vacate the 2091137 restriction on the consumption postjudgment proceedings, the father I timely agree evidence the indicating visitation periods alcohol. to this father that with this court's consistently held the record contains use of alcohol during t h e c h i l d r e n has had any that a appeal, that his opinion other court. e f f e c t on t h e c h i l d r e n o r has p l a c e d Before After which are i r r e l e v a n t to t h i s appealed with of his detrimental them a t r i s k o f any harm. i n Smith, parent no supra, cannot be this court enjoined had from engaging i n a l a w f u l adult a c t i v i t y absent evidence i n d i c a t i n g that the a c t i v i t y subjected See, e.g., v. Haraway, App. Jones 1988) (holding a child t o an undue r i s k So. to that, 537 2d 946, support a 947 (Ala. his girlfriend present evidence "substantial detrimental Applying that 520 2d So. reasoning, 512 that effect" this the on court, ( A l a . C i v . App. misconduct the child i n Andrews 1987), upheld has at on in living out of wedlock, the c u s t o d i a l parent proving Civ. restriction v i s i t a t i o n because of f a t h e r ' s " i n d i s c r e e t " behavior with o f harm. must had a issue). v. Andrews, an alcohol- c o n s u m p t i o n b a n b a s e d on s p e c i f i c e v i d e n c e i n d i c a t i n g t h a t t h e consumption o f a l c o h o l i c beverages by t h e f a t h e r i n t h a t 6 case 2091137 had endangered On t h e o t h e r App. hand, 1998), supervised that and would continue t o endanger the children. i n Mann v . M a n n , 725 S o . 2 d 989 this court reversed a (Ala. C i v . judgment requiring v i s i t a t i o n b e c a u s e t h e r e was no e v i d e n c e i n d i c a t i n g the noncustodial parent's use of a l c o h o l had "ever a danger to the c h i l d r e n " or t h a t the noncustodial been a r r e s t e d f o r any a l c o h o l - r e l a t e d c o n d u c t . posed parent had 725 S o . 2 d a t 992. In the Smith, opinion, Mann by supra, totally holding this court, abandoned that a trial c o n s u m p t i o n b a n on p a r e n t s i n t e r e s t s of the c h i l d , i n d i c a t i n g that expose, consumption holding of and visitation activity divorce child t o be Mann, law but the So. 2d at the the 7 265. thrust regulation Quite n o t have result inconsistent entire judgments. does had exposed, as totally alcohol- o f t h e l a c k o f any harm 887 regarding i n divorce court to an and t h a t such a ban i s i n regardless the parents alcohol. i n Smith Andrews a the can impose i fi tdecides evidence not stated i n t h e r a t i o n a l e o f Andrews court the best would f o r reasons of simply, t h e power or likely of their I find the with not only of Alabama's lawful adult I believe that to enjoin a parent 2091137 from engaging evidence be in a lawful i n d i c a t i n g that adult activity the c h i l d harmed w i t h o u t t h e i n j u n c t i o n . majority of consumption detriment P.2d jurisdictions ban cannot be to the c h i l d . 219 (Alaska absent at issue necessarily Thus, I agree w i t h that hold upheld that without (holding that an alcohol- driving custody, with as the c h i l d well as of v. W a t k i n s , prohibition c o n s u m p t i o n o f a l c o h o l b y t h e m o t h e r when t h e c h i l d mother's prohibition i n a vehicle within on on real 914 the i s i n the the 12 h o u r s will the vast evidence See, e.g., M a r i s c a l 1996) concrete mother's a f t e r the mother consumed a l c o h o l , were u n r e a s o n a b l y burdensome and were insufficiently the trial the mother P.2d 325 r e l a t e d to the c h i l d ' s best court had not r e c e i v e d abused (Colo. i n t e r e s t s because any e v i d e n c e i n d i c a t i n g that a l c o h o l ) ; and I n r e M a r r i a g e App. 1996) (holding that of Finer, trial court 920 had abused i t s d i s c r e t i o n i n p r o h i b i t i n g the p a r e n t s from d r i n k i n g alcoholic party beverages i n the presence of the c h i l d abused Although request that that when neither alcohol). the this father court in this overrule case Smith, an a l c o h o l - c o n s u m p t i o n b a n s h o u l d 8 d i d not expressly the father d i d argue o n l y be u p h e l d b a s e d on 2091137 evidence i n d i c a t i n g that unduly endanger the in Smith. court to should grant. respectfully Pittman, consumption f a t h e r has Smith, Because at a request a majority dissent. J., of c h i l d r e n , which i s contrary Thus, the overrule the concurs. 9 alcohol to the would holding l e a s t i m p l i e d l y asked which of the I believe court the this court disagrees, I

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