Alabama Divorce & Family Law Attorney Blog

Ex Parte Jones – Father Not Responsible for Covering Son’s College Costs

Posted in Alabama Child Support

Prior to the fall of 2013, parents could be required by Alabama Courts to pay for post-minority support and college education expenses for children after they turned 19. That was under the ruling established in Ex Parte Bayliss. graduation

But then, in October 2013, the Alabama Supreme Court handed down its decision in Ex Parte Christopher, which effectively overturned Bayliss. The court held parents could not be required to pay support to their children after they reached the age of majority. However, the court was clear on the fact that the Christopher ruling was not to be retroactively applied, meaning if parents were already paying  college support for their children under court order, they had to continue to do so.

In Christopher, the court ruled that a high duty of care exists by an adult in a caregiving relationship with a child (i.e., parent, guardian, etc.). There exists the duty to supervise, rescue, control and support. There also exists the duty to ensure the child is educated. However, in applying the plain meaning of the term “children,” justices ruled this duty pertained solely to minors. Once children reached the age of adulthood, parents no longer owed such duty.

The more recent case of Ex Parte Jones , also before the Alabama Supreme Court, deals with whether the Christopher decision should be applied to cases that were pending when Christopher was decided. The Jones case had already been decided prior to Christopher, but the father was appealing and that appeal was pending.

According to court records in Jones, mother and father had two children and divorced in 1998. Some 12 years later, mother petitioned trial court to compel father to provide post-minority educational support for their son.

The trial court issued its ruling in April 2013, awarding post-minority educational support to the son. Father filed an appeal in September 2013. The court of civil appeals heard the case in April 2014. The court granted temporary jurisdiction of the case back to trial court to decide a percentage the father should pay. Trial court ruled he should pay 100 percent of his son’s college expenses, and that order was affirmed by the court of civil appeals in September 2014, though the decision was split.

The dissenting justice noted that while this case was making its way through the court system, the Alabama Supreme Court had issued its ruling in Christopher in October 2013. Because the court had expressly overruled Bayliss – and thus the whole basis on which father was compelled to pay – the justice ruled Christopher should be the standard applied because the Jones case was still pending at that time, and no final judgment had been entered.

Father then appealed to the Alabama Supreme Court, which granted review to determine whether the court’s order conflicted with its decision in Christopher, or whether it was correct to apply the Bayliss standard. Ultimately, high court ruled the appellate court erred in applying Bayliss.

Thus, the earlier decision was reversed and the case remanded.

This is not to say parents can’t pay for their child’s higher education. Indeed, there are strong arguments for why they should, or at least help to cover the ballooning costs. However, our child support attorneys recognize the court should not order such payments to be made, once a child becomes an adult.

Additional Resources:

Ex Parte Jones , Feb. 27, 2015, Alabama Supreme Court

More Blog Entries:

Report: Facebook Cited in One-Third of All Divorces, Feb. 27, 2015, Birmingham Child Support Lawyer Blog

Clayton v. Langley – Alabama Appeals Court Weighs Child Custody Dispute

Posted in Alabama Child Custody & Visitation

In Alabama, court rulings pertaining to child custody can be altered, but only when there is evidence of a material change in circumstance. childbicycle

The standard by which child custody modifications are reviewed in Alabama is called the McLendon standard, after a 1984 Alabama Supreme Court case of the same name. Basically, if the original order wasn’t for joint custody and the non-custodial parent wants to modify the order, he she has to establish that whatever inherent, disruptive effect is caused by uprooting the child will be offset by the positive good that will be done through modification.

The parent who wants a change also needs to establish not only that he or she is a fit parent, but that the alteration in the custody agreement is going to be in the best interest of the child’s welfare.

  • Material changes in circumstance could include (but are not limited to):
  • Custodial parent loses his or her job, cannot properly care for the child and won’t seek further employment;
  • Custodial parent develops a serious drug problem, to which the child is exposed and/or endangered;
  • Home environment is neglectful or dangerous;
  • Custodial parents fails to provide a stable home for child.

In the recent case of Clayton v. Langley, the Alabama Court of Appeals was asked to determine whether the child custody modification was appropriately weighed by the McLendon standard. Justices ruled it was not, reversed the trial court and remanded for further consideration under the proper standard.

In the Clayton case, parties had twin sons in 2006 and divorced five years later. They each remarried other people. Two years after the divorce, mother filed a petition seeking modification of child custody. Although the couple had originally been granted joint custody, that order was modified to allow father primary placement when the mother moved out of the school district her sons attended. She was paying father child support.

She indicated she planned to purchase a property in the school district, and requested that she receive primary placement custody, with the father getting secondary placement and ordered to pay her child support. Additionally, she said there was a dispute regarding which parent could claim the children on their taxes. She also sought an order specifying who had primary decision-making authority in certain matters.

Father requested that he retain primary placement.

A number of motions were filed. Father sought an increase in child support and an alteration of her visitation schedule. Mother sought temporary custody of the children because, she alleged, father intended to move out of the school district in the middle of the school year. (Father contended he had listed his current home and intended to move, but would not do so in the middle of the school year.)

Following a hearing, court awarded joint custody and shared placement to both parties, saying it was in the best interest of the children. Court also awarded mother decision-making authority on issues of school, religion and health, while father was allowed final say on issues of athletics and cultural and civil affairs. Each were required to attend co-parenting counseling, and each could claim one child as dependent on taxes.

However, father appealed arguing the court erred in failing to require mother to meet the custody modification standard set forth in McLendon.

Appeals court agreed and reversed, requiring further consideration under that standard.

Additional Resources:

Clayton v. Langley, March 6, 2015, Alabama Court of Civil Appeals

More Blog Entries:

Stover v. Stover – Navigating an Acrimonious Alabama Divorce, March 4, 2015, Birmingham Child Custody Lawyer Blog

Report: Divorce Likelier When Wife Falls Ill

Posted in Alabama Divorce

It’s plainly written in almost all vows of marriage that the union is to last through times of sickness as well as good health. However, there is evidence that sickness has a devastating impact on some marriages – particularly if it’s the wife who falls ill.elderwoman

The research was published recently in the Journal of Health and Social Behavior.

Study authors discovered that when a wife was diagnosed with a major illness, the marriage was 6 percent more likely to crumble than if the wife stayed healthy. The sizable study examined the outcome of some 2,700 marriages where at least one partner was 50 or older. Interestingly, the husband’s illness didn’t impact the divorce rate.

Researchers were quick to point out that while an illness can cause definite stress to a marriage, there is no definitive cause-effect relationship. The study didn’t examine how illness might have contributed to the divorce, though there was speculation that traumatic life-and-death experiences can cause people to take stock of what’s important in their lives.

While some media outlets have already jumped to the conclusion that it’s the husband’s who are doing the divorcing, the study authors say that wasn’t part of the research. It may very well be women are upset by their husbands’ caregiving, or that the illness prompted them to re-examine what they want in life.

Of those marriages studied, one-third ended in divorce, while one-quarter ended in the death of a spouse.

This phenomenon is not exactly new. An older study published in the journal Cancer revealed that of 515 cancer patients, women diagnosed with serious illness were seven times more likely to become separated or divorced as men who faced similar health issues. Normally, the divorce rate is about 12 percent. However, when gender differences were analyzed, it was revealed 21 percent of marriages involving female illness ended, while only 3 percent of those with male illness ended.

On average, most couples in that study divorced about six months after the diagnosis, suggesting the separation was directly related to illness.

Given the impact of poor health on a marriage, it’s no wonder that health care coverage is often a primary consideration in Birmingham divorces.

This is something that deserves careful consideration from your attorney.

For example, if neither spouse has group health insurance coverage, spouses need to determine who will purchase it for the children, if there are any, and who will pay the costs. In some cases, the costs are decided via percentages. So a custodial parent might pay 30 percent, while the non-custodial parent pays 70 percent.

If, however, one spouse has group coverage and the other does not, a court order may be required to have that coverage continue – particularly if the ill spouse is the one without group coverage. If health insurance coverage is lost, COBRA may be one option to pursue for continuing coverage. It’s usually more expensive, but it’s worth the cost not to have to go without.

The best scenario is when both spouses have their own existing coverage and can maintain that coverage after the divorce. That scenario is not as common.

Divorce agreements can also include provisions about who should pay the cost of health insurance premiums, whether group coverage should be maintained for a certain period of time (especially important when one spouse is grappling with illness) and who should cover the cost of co-pays.

Additional Resources:

Divorce More Likely When Wife Gets Seriously Ill, Study Finds, March 9, 2015, By Justin Worland, Time Magazine

More Blog Entries:

After Your Alabama Divorce, Divide Your Estate Plans Too, Feb. 28, 2015, Birmingham Divorce Lawyer Blog

Falling Divorce Rates Not Good News for Some

Posted in Alabama Divorce

The news of falling divorce rates in the U.S. has been heralded by a number of religious and family advocate groups. And indeed, for many it may be a signal that those who grew up in broken homes are dedicated to making their marriages last and working through hardships that may have split their own families in their youth. indiaapparel

But that’s not the whole story.

For one thing, the number of people getting married in the first place is on the decline too. Couple cohabitate for years before deciding to have children, and often by that point, don’t consider marriage as a necessary step. This can ultimately limit each spouse’s legal options if they do later separate. Dividing property without a divorce settlement can get tricky.

But beyond that, there is another reason the falling divorce rates may be troubling, as highlighted recently by Washington Post Columnist Sharadha Bain.

Although divorce has in Western countries been a relatively easy and largely accepted process, it continues to be harshly stigmatized in growing Asian immigrant communities. In many of these sectors, arranged marriages are the norm, and even discussing potential strife within marriage is frowned upon.

While the divorce rate for all Americans is 44 percent, it’s far lower for Indian American immigrants – somewhere between 1 and 15 percent. (Divorce is even less common in India, with a rate of about 1 for every 1,000 marriages.)

Women in particular who may choose to leave – even for reasons such as physical abuse, alcoholism or adultery – face shunning within their communities. They will be effectively barred from religious and social events, and their new social status could make it difficult for their children to later get married.

It’s estimated there are approximately 3.5 million people of South Asian descent in the U.S. In Alabama, Birmingham has the highest population of Asian Indian immigrants in the state, with approximately 5,000. Huntsville is second, with 2,200. A recent story about the growing Asian Indian immigrant population in Alabama notes people are looking to open a company, purchase a business, pursue a technical career or find a job and a reasonable cost of living. Alabama is a good place to do all of those things.

Nationally, South Asians are among the fastest-growing racial group in the U.S. Roughly 70 percent of the marriages within this population are arranged, and many families continue to hold strong ties to their roots overseas. Although many may seemingly appear “Americanized,” with wealth, good educations and even Western-style clothing, there is still a great deal of deep traditionalism in these communities. There is a great deal of pressure for spouses to stay together.

What Bain argues is that within this context, what is needed is more divorce – not less. The lower divorce rate within these communities doesn’t mean they have better partners or fewer problems. It means it’s a lot harder for these individuals to separate.

We understand cases such as this require extraordinary care and consideration. We can help clients explore mediation and possibly the establishment of a marital agreement as an alternative to divorce. We are dedicated to ensuring our clients have the tools they need to start the next chapter of their lives.

Additional Resources:

The divorce rate is falling. Here’s why that’s bad news for some Americans. March 10, 2015, By Sharadha Bain, The Washington Post

More Blog Entries:

Ray v. Ray – Alabama Appeals Court Reverses Alimony Finding, Feb. 12, 2015, Birmingham Divorce Attorney Blog

Stover v. Stover – Navigating an Acrimonious Alabama Divorce

Posted in Alabama Divorce

Divorce is rarely a pleasant ride, even when separation is greatly desired by both parties.

Still, some splits are more contentious than others. Having an experienced, understanding divorce lawyer can help ease the burden. That kind of knowledgeable third-party guidance can help wisely determine which battles are worth fighting, and which are best to extend a compromise. OLYMPUS DIGITAL CAMERA

Recently, the Alabama Court of Civil Appeals took on review of an acrimonious divorce in Stover v. Stover. It involved the dissolution of a long-time marriage, which began in 1983, and resulted in two children.

According to court records, the day after their 29th wedding anniversary, husband notified wife he had been engaged in an extramarital affair for three years. The two separated the following month, and husband filed for divorce several months later. At the time, the oldest child was an adult, but the younger one was 17 and suffered from a severe case of a rare genetic disorder affecting the nervous system.

Husband alleged wife was physically abusive to him, cursed at him in younger child’s presence, filed a false order of protection from abuse against him and harassed him in text messages and voice mails. Husband requested divorce, custody of the younger child, child support form mother, and an order compelling mother to attend parenting classes.

Wife responded denying his allegations and filed a counterclaim alleging emotional and physical abuse by husband, text message harassment and asserting father was unable to care for younger child. She too sought custody and child support, as well as alimony and attorney fees.

In the midst of all this, husband asserted wife was physically combative to him during custody exchanges, even after those exchanges were moved to a local police station. Wife stated she was the child’s primary caregiver and father could not meet child’s physical needs. She further stated she was forced to drop the protection order bid because father told her he would lose his job – and thus the child’s health insurance. Father denied all this.

A trial was held in September 2013, but no judgment had been entered when father filed another motion seeking custody of the child after school workers reportedly observed unexplained bruises on the child, who reportedly cried and stated, “Mommy hurt.”

Mother denied these allegations, noting the child’s condition regularly caused her to bump into objects and further noted the child did not speak in two-word sentences, nor did she call her “mommy.” (She referred to her instead as “muh.”) The local Department of Human Resources investigated the claim and later returned a finding of “no merit.”

Trial court divorced the parties, granted joint custody of the child, ordered father to pay $125 monthly to mother in child support, declined alimony and declined to award wife any entitlement to father’s retirement account.

Mother filed a motion to amend or vacate the judgment, which was denied. She appealed to the appellate court.

The appeals court affirmed the joint custody agreement, finding both parents love and care for the child and are capable of meeting her needs. On the issue of child support, the court found wife failed to prove father was voluntarily under-employed, and therefore would not alter the original finding.

However, the court did reverse on the issue of the retirement funds. Initially, circuit court ruled mother had not proven the value of the account, and therefore was not entitled to a portion of it. However, that was not the case and, either way, that would not have been grounds to deny her access.

Therefore, the court affirmed in part and reversed in part.

Our Birmingham divorce lawyers know that such disputes have a way of eroding one’s mental and emotional health. We understand not every separation can be amicable. However, it’s our goal to make sure our clients walk away from an unhappy marriage with the financial and familial stability necessary to move on to the next chapter.

Additional Resources:

Stover v. Stover, Feb. 20, 2015, Alabama Court of Civil Appeals

More Blog Entries:

Pacheco v. Marulanda: Child Custody and Visitation, Feb. 5, 2015, Alabama Divorce Lawyer Blog

L.M. v. K.A. – Full Disclosure Required in Alabama Child Support Cases

Posted in Alabama Child Support

It’s natural for parents to want to seek every possible benefit for their child. However, they must be careful how they go about doing this because, if the effort involves attempts to cheat the system, the outcome might not be what they might have hoped. OLYMPUS DIGITAL CAMERA

One example was noted recently in the case of L.M. v. K.A. before the Alabama Court of Civil Appeals. There, the mother of a child allowed her own parents to obtain guardianship of the child in order to obtain the military benefits her father received as a service member, although she lived in the same household with the child as well. This might not have been an issue but for the fact that she had also sought – and obtained – child support from the child’s father. Because she was not the one with guardianship of the child, it was not within her right to collect those child supp0rt payments – even if they were going to the child.

According to court records, mother and father – who never married – lived together for about a year after the child was born before separating in 2008. For another year, child remained with mother in the same area. However, mother and child then moved to live with child’s maternal grandparents in Kentucky. Mother and child moved several times after that with grandparents.

In 2009, trial court – at mother’s request – ordered father to pay $500 monthly in child support. Two years later, father filed a petition seeking a judgment declaring he’d overpaid child support, finding mother in contempt and terminating his child support obligation while awarding him visitation. In his petition, he alleged grandparents had been granted limited guardianship even before mother sought child support.

A trial was held on these allegations in October 2013, and grandparents’ petition for limited guardianship were entered. The request stated both parents decided to grant them guardianship until they could care for the child. That petition was purportedly signed by both parents, but father asserted his signature was forged. Trial court examined handwriting samples and, finding they did not match, ultimately agreed with father on this fact.

Mother testified her father was an active U.S. Army member, and the limited guardianship was to allow child to be placed on grandfather’s “orders.” Specifically, the child could then receive certain health care benefits, travel expenses and attendance in schools on military bases. She stated she had never relinquished custody.

Trial court in June 2014 issued an order awarding father visitation, terminating his child support obligation and ordering mother to repay more than $18,000 she collected over the course of those two years. She was also ordered to pay father’s attorney fees and allow father to claim the child for income tax purposes.

Mother filed a post-judgment motion, which was denied. She then appealed.

However, appellate court upheld the findings of trial court. It noted the misrepresentations mother had made to obtain child support. The court noted it had previously allowed a mother exercising physical custody of a child to receive child support payments despite maternal grandparents having legal custody, but in that case, father had been ordered to pay support and failed to do so, even though he had no court order allowing him to cease payments. The court noted in that case the order was case-specific.

Here, mother failed to inform trial court of the guardianship action. Further, the mother in this case was not the legal custodian of the child when she filed for child support payments (unlike the mother in the other case). The mother had a duty to notify the court of the guardianship arrangement.

Additional Resources:

L.M. v. K.A. , Feb. 20, 2015, Alabama Court of Civil Appeals

More Blog Entries:

Schwartz v. Schwartz – Modification of Support Requires Material Change in Circumstance, Feb. 11, 2015, Birmingham Child Support Lawyer Blog

After Your Alabama Divorce, Divide Your Estate Plans Too

Posted in Alabama Divorce

After matters of child support, child custody, spousal support and division of marital property and debt have been settled, it’s understandable newly-divorced couples just want to put it all behind them. However, they may be in for an unpleasant surprise if they don’t attend to estate matters immediately following the divorce. yellowpen

While the divorce order itself can end or establish certain payments or obligations, estate planning could be an important next step. Failure to do this could potentially result in certain benefits or assets being funneled unintentionally to your ex-spouse or even his or her family if you die.

Take for example a recent case out of New York, wherein the family of a woman who died five years ago at the age of 43 is locked in a nasty battle for her $200,000 home with her former in-laws. Although she and her husband divorced three years before her death – and the home was clearly hers to keep in the divorce settlement – an existing will is central to the dispute.

A will executed ten years before her death named her then-husband as the beneficiary of her property should she die. That property included a home that had been passed down in her family for generations. The divorce proceeding cut her husband automatically out of the will (though such documents should be updated anyway just for clarity’s sake). However, her father-in-law, who was named as a secondary beneficiary, asserts that under the terms of that will, he is the beneficiary of the home.

The decedent’s family insists she drew up a new will after separating from her husband, but thus far, no one has been able to locate or produce that newer documented. An appellate court ruled the will should be upheld, but one last appeal is slated to go before the state’s highest court next month.

Drafting a new will isn’t the only thing to consider. New divorcees should also update all proxies, if they haven’t already. Updating one’s health-care proxies and health care powers of attorney can be done even while the divorce is pending – and in fact should be done, unless you want your soon-to-be ex making important financial and health care decisions for you in the event you are unable to do so.

Another important update to make is that of beneficiary designations. Usually, retirement, brokerage, insurance and bank accounts are divvied up in a divorce. However, if the named beneficiary isn’t updated, it’s possible the ex could still collect. Take for example the 2013 U.S. Supreme Court case in which justices sided with an ex-wife who collected $125,000 on a life insurance policy after he died. They had been divorced for years at the time, and he had actually remarried. However, he failed to update the policy beneficiary after the divorce, so the beneficiary as listed was honored.

It’s important to make sure your divorce attorney is aware of all such accounts. Note too that if a divorce settlement grants a portion of an ex-spouse’s retirement account, claimant may additionally need to request a Qualified Domestic Relations Order to ensure the divorce settlement terms are upheld.

Additional Resources:

After Divorce, Separate Your Estate Plans Too, Feb. 20, 2015, By Liz Moyer, The Wall Street Journal

More Blog Entries:

McDaniel v. McDaniel – High-Conflict Divorce Weighed by Alabama Civil Appeals Court, Feb. 15, 2015, Birmingham Divorce Attorney Blog

Report: Facebook Cited in One-Third of All Divorces

Posted in Alabama Divorce

The whole idea of Facebook and other social media websites is to bring folks together. smartphone

However, it seems with increasing frequency, social networking is serving to drive people apart – specifically, married couples.

According to a new British survey, Facebook has been linked to 33 percent of all divorces, which is an increase from a 2009 study indicating the networking site was central to 1-in-5 divorce filings. Another study, conducted in 2013 by researchers with the University of Missouri, found people who use the site excessively are more likely to experience conflict with their romantic partners, and that conflict can often lead to negative outcomes, such as break-up and divorce.

Authors of the latest research opine Facebook serves as a conduit for people who are connecting with exes or to meet new potential partners. It may simply be a source of suspicion, particularly if one spouse is overly-jealous.

Our Birmingham divorce attorneys don’t lay the blame solely on evolving technology. Marriages were breaking up long before social media existed. The fact that Facebook is often noted in divorce filings is not so much a condemnation of the platform as simply indicative of the way we all currently communicate and connect.

Alabama is a no-fault divorce state, so that means whether your spouse is spending a greater amount of time online or involved in a virtual affair may not necessarily be relevant to the court in your filing. No-fault divorce means spouses aren’t required to establish grounds for divorce, such as adultery, abandonment, alcoholism, abuse, etc. In fact, the vast majority of divorce cases in Alabama are granted on no-fault grounds.

Still, there are ways in which divorce lawyers might find the contents of a client’s or soon-to-be-ex’s social media account valuable.

For example, Alabama family courts allow for equitable distribution of marital property. Both spouses are required to report all relevant property. Not everyone does. But sometimes, there can be evidence in the form of wall posts or photographs that might indicate one party is not fully disclosing all relevant financial assets or debts. That could impact the court’s decision regarding how much each party should receive.

Such evidence can also be valuable in child custody and support proceedings. Parents who post photographs of themselves behaving badly may have a difficult time proving to the court they are a fit parent with a stable home. Such posts can also indicate if a parent is fully adhering to the parenting plan. For example, courts can sometimes limit a child’s contact with parent’s new boyfriend or girlfriend, but posted photographs may show they aren’t obeying that order.

It’s worth noting that just because a person blocks or “unfriends” an ex does not mean the settings are private. For one thing, couples tend to have many mutual friends, and that can become a portal through which one can obtain information about the other. Beyond that, privacy settings are not nearly as tight as some people like to believe. Spouses may be unwittingly providing a ton of information to the other side about a variety of aspects relevant to a pending case.

Courts are increasingly broadening the circumstances under which such evidence is allowed to be introduced and considered. In some cases, judges will allow one side to engage in digital forensics, which can help uncover call logs, text messages and e-mails, calendar entries, videos and photos, pornography site visits, financial transfers and purchases and other seemingly private information.

So regardless of whether Facebook precipitated your split, it may ultimately help further your divorce case.

Additional Resources:

Facebook cited in a third of all divorce cases, Jan. 21, 2015, By Cheryl K. Chumley, The Washington Times

More Blog Entries:

Parisi v. Parisi: Alimony Payment and Contempt of Court, Jan. 26, 2015, Birmingham Divorce Attorney Blog

Ray v. Ray – Alabama Civil Appeals Court Reverses Alimony Finding

Posted in Alabama Alimony

Alimony payments are those made by one divorced spouse to another either during the divorce process or after the divorce. It’s sometimes referred to as a “spousal allowance” or “spousal maintenance.” money2

Where once alimony was the standard in divorce proceedings, with the husband required to pay the wife, that has changed. Women have not only increasingly entered the work force but in some cases have incomes that far exceed their spouses. Securing alimony payments requires very specific findings, and is usually temporary, applied to long-time married couples and usually limited to cases where one spouse earns significantly less than the other.

Recently, the Alabama Court of Civil Appeals granted reversal of a trial court’s order denying alimony, except for a $5,700 lump sum payment awarded to wife while divorce was pending.

The case, Ray v. Ray, involved disputed testimony at almost every turn. However, it is not the job of the appellate court to sort through the veracity of the facts. Rather, it determines fairness as a matter of law. In this case, regardless of the matters disputed, the trial court’s finding was unfair, considering husband was the sole earner during the 25-year marriage and the trial court awarded all husband’s retirement accounts to him and denied her any spousal support, despite her earning less than half of what he does. Further, although wife did not appeal on the basis of marital property division, the appellate court noted such a finding has to be weighed in light of whether to award alimony, and it did not appear the trial court did so.

According to court records, husband and wife were married in the 1980s and had two children, both of whom had reached adulthood by the time they sought a divorce. Virtually every fact in the case was disputed.

Wife alleged during their marriage, husband refused to allow her to work, even after the children grew older. He also refused to allow her to return to college, as he feared she would only attend to “meet guys.” She alleged he was physically and verbally abusive to her, had extramarital affairs (including one with his sister) and that he used crack-cocaine and would leave the family for weeks or months at a time on binges, during which he would not pay the bills and left her without a vehicle.

Husband, meanwhile, alleged it was the wife who was abusive, and in fact she had been arrested and convicted for one such incident. He argued the loss of his eye was due to her hitting him with a frying pan handle, though she argued it occurred when he fell down a flight of stairs, drunk, while she was not home. He insisted he wanted his wife to work, but that she refused. He stated he had previously struggled with substance abuse, but it was no longer an issue.

Trial court made various findings of fact regarding these allegations, but ultimately said both parties should keep their respective retirement accounts and the husband should pay a lump sum support payment, with no continuing Alabama spousal support. There was no marital home or other real property to divide.

The appellate court reversed and remanded, finding regardless of the disputed facts, the husband was the sole earner for 25 years of their union. That put wife at a unique financial disadvantage, and indeed, she only earned half of what he did and it was not enough to cover her expenses. Additionally,  there was no evidence the wife even had her own retirement account, despite the court’s order. Meanwhile, husband was earning twice as much and his income was $900 in excess of his expenses – $1,500 in excess when subtracting for a vehicle and insurance he paid for his sister, but which he did not use or drive.

Based on this alone, the appellate court determined the trial court needed to reconsider its allocation of money due each party.

Additional Resources:

Ray v. Ray, Feb. 20, 2015, Alabama Court of Civil Appeals

More Blog Entries:

C.E. v. M.G. – Alabama Civil Court Reviews Custody Dispute With Abuse Allegations, Feb. 21, 2015, Birmingham Divorce Lawyer Blog

C.E. v. M.G. – Alabama Civil Court Reviews Custody Dispute With Abuse Allegations

Posted in Alabama Child Custody & Visitation

There is perhaps no more serious allegation between parents warring for child custody than abuse of that child. It’s one in which the courts take very seriously, and the top priority is always the best interests of the child.abuse

In the recent case of C.E. v. M.G., the Alabama Court of Civil Appeals reviewed the petition filed by a child’s mother seeking a writ of mandamus compelling the lower court to vacate an earlier judgment awarding temporary custody of child to father.

Central to the juvenile court’s findings were allegations of abuse and neglect made by father against mother.

The appellate court affirmed in part, reversed in part.

Back in 2008, father’s paternity was formally established and, in the course of that action, court designated mother as primary physical custodian and ordered father to pay child support. This arrangement continued for nearly six years, until father filed a petition alleging child was dependent because the mother and her husband were either abusing the child or using excessive corporal punishment, to the point father observed marks and welts on child’s body. He sought emergency custody.

After an initial jurisdictional transfer, the juvenile court entered a temporary custody order placing child with father on emergency basis. Court also scheduled a hearing for the following day and appointed a guardian ad litem to represent the child.

On hearing day, mother’s attorney was running late due to a scheduling conflict. After waiting a period of time, court proceeded to hear both sides of the case without mother’s attorney present.

After hearing evidence from both parties, court awarded father physical custody pending a final hearing and ordered stepfather not to discipline the child in any form. A final hearing was scheduled for one month later.

In the interim, mother filed her writ of mandamus, which appellate court chose to treat as an appeal. She asserted father’s pleadings were not verified, the court lacked subject matter jurisdiction and the court violated her due process rights because the hearing was conducted without her attorney and she as given no notice the court would address child’s dependency.

Upon review, appellate court found father’s allegations fell well within the subject matter jurisdiction of the juvenile court, which has the authority to enter temporary custody on an emergency basis when the safety of a child is at issue. Further, appellate court rejected mother’s assertion that father failed to verify his assertions with written and verbal evidence.

With regard to the lower court’s alleged failure to provide proper notice of the dependency hearing, appellate justices did find trial court acted improperly. However, it rejected mother’s argument of a constitutional violation for holding the hearing absent her attorney. Although mother had a right to an attorney and was represented by one, the court acted within its discretion by allowing attorney reasonable time to appear and continuing with the hearing when she failed to appear.

Accordingly, court affirmed the emergency custody order, but remanded with regard to the dependency finding, ordering trial court to grant proper notice to mother before proceeding with a final hearing.

Because an allegation of child abuse can have swift and severe consequences – as this case reveals – it’s imperative for those involved to consult with an experienced and reliable family law attorney.

Additional Resources:

C.E. v. M.G., Jan. 16, 2015, Alabama Court of Civil Appeals

More Blog Entries:

Domestic Violence in Alabama: “Enough is Enough”, Nov. 22, 2014, Birmingham Family Law Attorney Blog

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