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Landry v. Landry

Alabama Court of Civil Appeals

December 12, 2014

Boyd J. Landry
v.
Angela O. Landry

          Appeal from Autauga Circuit Court. (DR-06-65.06).

         For Appellant: Roianne Houlton Conner and Preston L. Presley of Law Offices of Roianne Houlton Conner, Montgomery.

         For Appellee: J. Robert Faulk of McDowell, Faulk & McDowell, LLC, Prattville.

         MOORE, Judge. Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

          OPINION

Page 554

          MOORE, Judge.

         Boyd J. Landry (" the father" ) appeals from a judgment entered by the Autauga Circuit Court (" the trial court" ) in case no. DR-06-65.06 (" the .06 action" ). We affirm.

         Background

         The trial court divorced the father from Angela O. Landry (" the mother" ) in 2007. In that divorce judgment, the trial court ordered the father to pay, among other things, $2,500 per month as child support for the parties' four children. Since that time, the parties have been before the trial court on multiple occasions, including in case no. DR-06-65.04 (" the .04 action" ) and in case no. DR-06-65.05 (" the .05 action" ). In Landry v. Landry, 91 So.3d 88 (Ala.Civ.App. 2012), this court determined that the trial court had not entered a final judgment in the .04 action and dismissed an appeal arising from that action. In Ex parte Landry, 117 So.3d 714 (Ala.Civ.App. 2013), this court, in ruling on a petition for a writ of mandamus filed by the father, determined that the trial court had not entered a final judgment in the .05 action. Those actions remained pending when, on September 10, 2012, the father initiated the .06 action seeking to suspend his child-support obligation.

         The mother subsequently filed a counterclaim in the .06 action, seeking to hold the father in contempt. On September 16, 2013, the trial court consolidated the .04 action, the .05 action, and the .06 action for the purpose of conducting a final hearing. On November 13, 2013, after an ore tenus hearing, the trial court entered a judgment purporting to adjudicate the pending claims in all three actions. As to the .06 action, the judgment, as amended in response the postjudgment motion filed by the father, among other things, denied the father's motion to recuse, found the father in contempt, and awarded the mother $5,533.05 in attorney's fees. The father timely filed a notice of appeal.

         Analysis

         As an initial matter, we note that, when the trial court consolidated the three actions, those actions did not lose their separate identities and the trial court was obligated to enter a separate judgment in each action. Casey v. Casey, 85 So.3d 435, 439-40 (Ala.Civ.App. 2011) (citing H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278 (Ala.Civ.App. 2009)). From a review of the record on appeal, it appears that, although the trial court referred in its judgment to all three actions, the trial court entered a final judgment only in the .06 action. Thus, the .04 action and the .05 action remain pending before the trial court awaiting entry of a final judgment. We cannot, and do not, in this appeal consider any issues arising out of the .04 action and the .05 action.

Page 555

          The first issue properly before us concerns whether the trial court had jurisdiction to rule on the mother's counterclaim for contempt in the .06 action. The father argues that a contempt action may not be joined in the same action as a modification petition, relying in part on Opinion of the Clerk No. 25, 381 So.2d 58 (Ala. 1980). However, at the time Opinion of the Clerk was issued, Rule 33.3, Ala. R. Crim. P., governed contempt actions. As recognized in Austin v. Austin, [Ms. 2120102, July 19, 2013] 159 So.3d 753 (Ala.Civ.App. 2013), Rule 70A, Ala. R. Civ. P., now governs contempt proceedings arising out of civil actions, and a contempt claim may be asserted in a civil action along with other claims. Austin, __ So.3d __at __, Id. at*9 (citing ...


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