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O'Barr v. O'Barr

Alabama Court of Civil Appeals

October 10, 2014

Timothy Blake O'Barr
v.
Dusty Herron O'Barr

Released for Publication June 10, 2015.

Page 1077

Appeal from Morgan Circuit Court. (DR-10-150.01). Steven E. Haddock, Trial Judge.

For Appellant: Sharon Doviet, Huntsville.

For Appellee: Tina R. Ogle, Decatur.

PITTMAN, Judge. Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

OPINION

Page 1078

PITTMAN, Judge.

Timothy Blake O'Barr (" the father" ) appeals from a judgment of the Morgan Circuit Court modifying the judgment divorcing him from Dusty Herron O'Barr (" the mother" ). We affirm the judgment in part, reverse the judgment in part, and remand the case to the trial court.

The parties were divorced by a judgment of the trial court on June 16, 2011. That judgment, among other things, awarded the mother sole legal and physical custody of the parties' son and daughter, subject to the father's visitation. Following the entry of that judgment, the trial

Page 1079

court entered a postjudgment order, modifying the divorce judgment to award the mother the parties' master-bedroom suite and to incorporate an amended visitation schedule.

On May 23, 2012, the father filed a petition seeking a finding of contempt against the mother, asserting that the mother was in contempt of the parties' divorce judgment because she allegedly had, among other things, regularly denied the father visitation with the parties' minor children as set forth in the divorce judgment. The mother filed an answer to the father's petition and a counterclaim in which she sought a contempt finding against the father, asserting, among other things, that the father had failed to abide by portions of the divorce judgment by failing to inform the mother regarding any change in his residence in accordance with the Alabama Parent-Child Relationship Protection Act (Ala. Code 1975, § 30-3-160 et seq.); by forbidding the children to attend church and social events during his visitation periods despite the trial court's instructions that the children should be allowed to participate in school, church, athletic, social, and extracurricular activities; by failing to abide by the visitation schedule; by failing to pay $820 in child support by July 1, 2011, and making only a partial payment of $378.46 on July 25, 2011; by failing to make the installment payments on the first- and second-mortgage indebtedness on the marital residence; by failing to comply with the portion of the divorce judgment directing the father not to threaten, harass, intimidate, stalk, annoy, embarrass, or disturb the peace and privacy of the mother; and by willfully disposing of or refusing to give to the mother the parties' master-bedroom suite that was awarded to the mother by the postjudgment order. The mother also sought, among other things, a modification of the parties' divorce judgment, requesting that the trial court award the father supervised visitation with the parties' children, with unsupervised visitation to resume upon his completion of anger-management classes; an award to the mother, rather than the father, of the income-tax deduction for the minor children; and a requirement that the father pay all litigation expenses, including the mother's attorney's fees.

The trial court entered a judgment on July 25, 2013. In that judgment, the trial court made findings of fact and concluded, among other things, that the mother was not in contempt of court; that the father was in civil contempt of court for having willfully failed to pay the total amount of child support owed for July 2011 and for refusing to turn over the master-bedroom suite that the mother had been awarded in the postjudgment order; and that the father was in criminal contempt of court for his refusal to notify the mother of his new address, for his refusal to return the parties' daughter to the mother on the daughter's birthday, for his refusal to return both children to the mother in 2012 for Easter, for his refusal to allow the daughter to attend a church event during one of his visits, and for harassing and threatening the mother on March 16 and 18, 2012. The trial court also, among other things, amended the divorce judgment to allow the mother to claim the children as dependents for income-tax purposes; to require both parents to enroll in and complete the " Together We Can" six-week program provided by the organization Parents and Children Together (" PACT" ); to require the father to undergo an assessment to determine if he needs additional anger- management training or other treatment or therapy to address how he relates to the children and the mother; to require the mother to arrange for the parties' children to be evaluated by a licensed counselor

Page 1080

or mental-health professional; to require the father to provide the mother with his address and to comply with the requirements of the Alabama Parent-Child Relationship Protection Act in the future; and to provide that while the father shall have no forced visitation or contact with the children, the father could petition the court for renewed visitation following his completion of the PACT program and additional assessment regarding anger management or other treatment. Pursuant to the trial court's judgment, in order to purge his civil contempt, the father was required to pay $441.54 to the mother before August 16, 2013, representing the amount of child support he owed for July 2011; to deliver the master-bedroom suite to the mother on August 17, 2013; and to pay an attorney fee to the mother in the amount of $1,000. For the findings of criminal contempt, the trial court sentenced the father to serve three days in jail for each adjudicated act of contumacy; however, it suspended the applicable sentences, placed the father on 24 months of unsupervised probation, and ordered that, during that 24-month period, the father was required to strictly comply with the orders of the judgment and to engage in no further acts of criminal or civil contempt. The trial court stated that any remaining requests for relief were denied.

The father timely filed a postjudgment motion. The mother filed a response. The trial court entered an order that, among other things, extended the deadlines for the father to pay the judgment for his child-support arrearage, to deliver the master-bedroom suite to the mother, and to pay the attorney's fee to the mother. The father timely filed his notice of appeal to this court.

The father first argues on appeal that the trial court erred in finding him in civil and criminal contempt.

" 'The issue whether to hold a party in contempt is solely within the discretion of the trial court, and a trial court's contempt determination will not be reversed on appeal absent a showing that the trial court acted outside its discretion or that its judgment is not supported by the evidence. Brown v. Brown, 960 So.2d 712, 716 (Ala.Civ.App. 2006) (affirming a trial court's decision not to hold a parent in contempt for failure to pay child support when the parent testified that he had deducted from his monthly child-support payment the amount he had expended to buy clothes for the children).'
" Poh v. Poh, 64 So.3d 49, 61 (Ala.Civ.App. 2010).
" 'Rule 70A, Ala. R. Civ. P., has governed contempt proceedings in civil actions since July 11, 1994. Rule 70A(a)(2)(D) defines " civil contempt" as a " willful, continuing failure or refusal of any person to comply with a court's lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with." '
" Stamm v. Stamm, 922 So.2d 920, 924 (Ala.Civ.App. 2004). To hold a party in contempt under either Rule 70A(a)(2)(C)(ii) (criminal contempt) or (D)(civil contempt), Ala. R. Civ. P., the trial court must find that the party willfully failed or refused to comply with a court order. T.L.D. v. C.G., 849 So.2d 200, 205 (Ala.Civ.App. 2002)."

Bridges v. Bridges, 69 So.3d 885, 888-89 (Ala.Civ.App. 2011).

The trial court found the father in civil contempt for having willfully failed to pay his child-support obligation for July 2011 and for refusing to give to the mother the master-bedroom suite that she had been ...


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