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C.N.M. v. J.D.D.

Alabama Court of Civil Appeals

February 9, 2018

C.N.M.
v.
J.D.D.

         Appeal from Madison Juvenile Court (CS-12-82.02)

          THOMPSON, Presiding Judge.

         C.N.M. ("the mother") appeals from a July 13, 2017, judgment of the Madison Juvenile Court ("the juvenile court") finding her in contempt. In addition to sentencing the mother to five days in jail for the conduct made the basis of this action, the juvenile court also revoked the suspension of jail time imposed as a result of earlier acts of contempt the mother committed.

         The record before us tends to demonstrate the following facts relevant to the issues on appeal. On February 21, 2013, the juvenile court entered a judgment ("the February 2013 judgment") adjudicating J.D.D. ("the father") the father of the mother's two children ("the children"). A copy of that judgment is included in the record on appeal. The parties reached an agreement on the issues of visitation, custody, and support, and that agreement was incorporated into the February 2013 judgment. Pursuant to that agreement, the parties had "joint care, custody and control" of the children. The judgment stated that the mother "shall be the primary custodial parent" and that the father "shall be the secondary custodial parent."[1] The father was awarded standard visitation rights, which, the judgment stated, was to be considered "a minimum" amount of visitation.

         Although we cannot discern the specific date from the record, a few years after the February 2013 judgment was entered the father filed an action in the juvenile court alleging that the mother was not allowing him to exercise his visitation rights. On December 1, 2016, after a hearing on the father's allegations, the juvenile court entered an order of contempt. Although the December 1, 2016, order is not included in the record on appeal, in the proceedings below, the juvenile-court judge noted from the bench that no one had provided him with a copy of the December 1, 2016, order but that he had had it copied from the court record. The July 13, 2017, judgment from which the mother now appeals indicates that, in the December 1, 2016, order, the juvenile court found the mother's actions "to be 'willful, blatant, contemptuous'" and that "'beyond a reasonable doubt' [she] had violated the terms of the this Court's order of February 21, 2013, in that the mother refused to allow the father ... to exercise his rights of holiday visitation with the parties' minor children." In the December 1, 2016, order, the juvenile court noted in the July 13, 2017, judgment from which the mother now appeals, the mother was found to have committed at least 21 separate acts of criminal contempt. She was sentenced to 5 days in jail for each of the 21 acts. The sentences were to run consecutively for a total of 105 days in jail. The juvenile court stated that the December 1, 2016, order suspended the sentences for two years on the condition that the mother comply "fully, completely, and faithfully" with the juvenile court's orders.

         In addition to setting conditions for the jail sentences, the juvenile court wrote in the July 13, 2017, judgment appealed from in the instant appeal, the December 1, 2016, order also directed the mother to allow the father to have "make-up visitation." Specifically, the December 1, 2016, order directed that the father was to have visitation during the 2016 Thanksgiving holiday and during spring break 2017.[2]The December 1, 2016, order reserved ruling on all additional pending matters for a hearing later that month.

         On December 19, 2016, after the hearing, a judgment was entered denying the father's request for custody of the children, saying that he had failed to present sufficient evidence to meet the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984). However, the juvenile court continued, there was sufficient evidence presented to warrant a modification of the father's child-support obligation and to modify each party's authority for the ultimate responsibility over certain designated aspects of the children's upbringing, such as education, religion, and athletics. The December 19, 2016, judgment also limited the contact the children could have with the mother's boyfriend, among other things not relevant to this appeal. The December 19, 2016, judgment further specified that the father's visitation rights would be those specified in the "Court's Custodial Schedule, " attached as an exhibit to that judgment. That schedule is what is also known as a standard visitation schedule.[3] The schedule provided that the father was to have visitation with the children during spring break in even-numbered years and that the mother was to have custody of the children during spring break in odd-numbered years. The December 19, 2016, judgment also specified that "all other provisions of this Court's previous order and contempt order entered on November 10, 2016 [actually entered on December 1, 2016], not specifically modified herein, remain in full force and effect."

         On March 16, 2017, the father filed a rule nisi petition asking the mother to show cause why she should not be held in contempt for refusing to allow the father to exercise his spring-break visitation in 2017 as ordered in the December 1, 2016, order. The father also sought a modification of custody and child support. In turn, the mother filed a rule nisi petition regarding a conflict over the children's health insurance. She also sought to have the father's visitation schedule modified and his child-support obligation recalculated.

         A guardian ad litem was appointed for the children. An evidentiary hearing was held on July 7, 2017. Evidence regarding the mother's alleged contempt tended to show the following. There is no question that the father exercised his Thanksgiving 2016 visitation. Furthermore, the mother does not dispute that she did not allow the father to exercise visitation during spring break 2017. The father testified that he contacted the mother about exercising his "make-up" visitation with the children during spring break 2017. The mother responded that he would not have the children until spring break 2018. In a text message, the mother told the father that, "being this is 2017, an odd year, makes it my year to have the [children]. You being the noncustodial parent makes you have spring break on even years. So I will have them this year." The father responded by telling the mother that there should be no confusion as to this matter and for her to "read your order." The father testified that the mother persisted in saying that he would not have visitation with the children during spring break 2017.

         The mother testified that she understood that the December 1, 2016, order finding her in contempt had awarded the father "make-up time" for visitation. She said that those times were Thanksgiving 2016 and spring break 2017. In explaining why she did not allow the father to exercise the spring-break make-up visitation, the mother testified that the December 19, 2016, judgment, to which the court's standard visitation order was attached, "took away" the make-up visitation. She said: "From my reading of the [December 19, 2016, ] order it stated that he would have [the children] spring break of 2018, and from my understanding I was supposed to follow the final [December 19, 2016, ] order."

         The juvenile court questioned the mother at length about her decision not to allow the father to exercise his make-up visitation during spring break 2017. The juvenile court asked the mother whether she had looked at the December 1, 2016, order after the father had told her he was going to exercise his make-up visitation during spring break 2017. The mother said that she had not done so. The mother also testified that, on the Friday when spring break began, she picked up the children from school before the father could arrive at the school to pick them up. The mother said that the children stayed with her for a few days and then went to New Orleans with their grandfather during their spring break. The juvenile court also clarified with the mother that she had sent the children off with another relative, and without her, during that spring break rather than allow the father to exercise his court-ordered make-up visitation. In a discussion held on the record with the mother's attorney, the mother's attorney acknowledged that nowhere in the December 19, 2016, judgment was the father's make-up visitation canceled and that, in fact, it contained a provision stating that provisions in the December 1, 2016, order "not specifically modified herein remain in full force and effect."

         On July 13, 2017, the juvenile court entered a judgment that, among other things, found that the mother had "willfully, blatantly, and contemptuously gone beyond the direction of the Court's orders, which were clearly set out and were not confusing." The juvenile court also found that the mother did not seek legal advice regarding the make-up visitation and, instead, "proceeded on her own" to deny the father the make-up visitation ordered for spring break 2017. Accordingly, the juvenile court held the mother in contempt. The juvenile court imposed an additional 5 days to the mother's previous sentences for contempt, for a total of 110 days in jail, and implemented the suspended sentences. The mother was ordered to serve her sentences over the weekends.

         In her brief on appeal, the mother argues that the juvenile court erred in finding her in contempt for not allowing the father to exercise the make-up visitation ordered in the December 1, 2016, order. Specifically, the mother contends that the visitation schedule set out in the December 19, 2016, judgment made the December 1, 2016, order awarding the father make-up visitation "ambiguous due to the conflicting provisions regarding visitation."

         We note that neither the parties nor the juvenile court distinguish between civil contempt and criminal contempt. In Pate v. Guy, 934 So.2d 1070, 1072 (Ala. Civ. App. 2005), this court discussed the ...


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