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Hopkins v. Hopkins

Alabama Court of Civil Appeals

May 26, 2017

Kenneth Lackey Hopkins
v.
Jennifer J. Hopkins

         Appeal from Shelby Circuit Court (DR-13-900276.02)

          ON APPLICATION FOR REHEARING

          MOORE, Judge.

         This court's no-opinion order of affirmance of February 10, 2017, is withdrawn, and the following is substituted therefor.

         Kenneth Lackey Hopkins ("the father") appeals from a judgment entered by the Shelby Circuit Court ("the trial court") in postdivorce modification and contempt proceedings. We affirm the trial court's judgment.

         Procedural History

         The father and Jennifer J. Hopkins ("the mother") were divorced by a judgment entered by the trial court on December 13, 2013. The divorce judgment, as amended, among other things, awarded the parties joint legal custody of their one minor child ("the child"); awarded the mother, in effect, sole physical custody of the child; awarded the father specified visitation; encouraged the parties to agree to extend or to reschedule the father's visitation as the child gets older in accordance with the child's best interests; provided that "[e]ach party shall give the other party the right of first refusal for child care during his or her custodial visitation period[] in the event the custodial parent is required to be out of town for an overnight stay or is otherwise in need of extended child care"; required each party to notify the other party in the event the child became seriously ill or was required to be hospitalized due to an accident; and provided that each party allow the other party reasonable telephone access to the child. The divorce judgment, as amended, also provided that the father must pay $829 per month in child support, $1, 000 per month in rehabilitative alimony for 24 months, and "COBRA" insurance premiums for the mother for 24 months. The trial court reserved jurisdiction to award periodic alimony.

         On April 10, 2014, the mother filed a complaint seeking, among other things, to hold the father in contempt for allegedly failing to pay rehabilitative alimony as ordered by the divorce judgment. On May 8, 2014, the father answered the mother's complaint. On July 24, 2014, the father amended his answer and counterclaimed, requesting that the trial court modify custody or visitation and that the trial court find the mother in contempt for interfering with his visitation with the child. On January 23, 2015, the mother filed an amended complaint requesting, among other things, periodic alimony. On February 19, 2015, the father filed an amended answer. The mother filed a second amended complaint on May 4, 2015, alleging that the father had failed to return the child on time after his visitation and seeking to hold the father in contempt.

         After a trial, the trial court entered a judgment on March 28, 2016, ordering the father to pay $750 per month in periodic alimony, holding the father in contempt for failing to pay rehabilitative alimony, ordering the father to pay $2, 000 as a portion of the mother's attorney's fees, and denying all other relief requested by both parties. On April 20, 2016, the father filed a postjudgment motion. That motion was denied by operation of law on July 19, 2016. On August 26, 2016, the father filed his notice of appeal.

         Discussion

         I.

         On appeal, the father first argues that the trial court erred in declining to hold the mother in civil contempt for interfering with his visitation with the child.[1]

         "'Civil contempt' means 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." See Rule 70A(a)(2)(D), Ala. R. Civ. P. "'"[W]hether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm."'" Aramini v. Aramini, [Ms. 2140547, July 15, 2016] ___ So. 3d___, ___(Ala. Civ. App. 2016) (quoting Stamm v. Stamm, 922 So.2d 920, 924 (Ala. Civ. App. 2004), quoting in turn Stack v. Stack, 646 So.2d 51, 56 (Ala. Civ. App. 1994)). In this case, the father alleged that the mother had committed several acts in willful violation of the terms of the divorce judgment. We address those allegations in turn.

         First, the father contends that the mother willfully violated the "extra" visitation terms of the divorce judgment. The divorce judgment establishes a specific schedule for visitation by the father, but then states:

"The custodial/visitation periods as provided herein are intended by the Court to be the minimum to which each parent is entitled. The parties are encouraged to extend such periods herein allowed as the child grows older, and as may be in the best interest of the child and to reschedule, by mutual agreement, any custodial/visitation period which is inconvenient for the parties or interferes with the child's extracurricular activities, with both parties keeping in mind the best interest of the child."

         The father complains that the mother refused to provide him with visitation beyond the schedule provided in the divorce judgment. We conclude that, based on the terms of the divorce judgment, the mother was not legally required to provide the father with additional visitation.

         In Cochran v. Cochran, 5 So.3d 1220 (Ala. 2008), the divorce judgment awarded the former husband reasonable visitation with the parties' children as set out in a specific schedule plus "any other times mutually agreed upon by the parties." The former husband and the former wife initially agreed to additional weekday visits, but the former wife subsequently determined that such visitation did not serve the best interests of the children because it interfered with the ability of the children to complete their homework, so she withdrew her consent. The supreme court held that the former wife was not legally obligated to continue the weekday visits under the terms of the divorce judgment and that she could lawfully rescind her agreement to provide additional visitation based on the best interests of the children. 5 So.3d at 1228.

         In this case, as in Cochran, the divorce judgment encourages, but does not require, the mother to agree to additional visitation periods, but only if she deems such visitation to be in the best interests of the child. The mother testified that she had refused the father's request for extra visitation only once, except for certain occasions when the father had asked to keep the child until Monday during his weekend visitations. Regarding the father's requests to extend his visitations until Monday, the mother testified that she had not allowed him to do so every time he had asked because, on the occasions when she did grant his request, the father would not prepare the child for school or because the child had had an activity scheduled for Sunday night. Based on that testimony, the trial court reasonably could have concluded that the ...


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