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Bedard v. Bedard

Alabama Court of Civil Appeals

July 27, 2018

Michael J. Bedard
v.
Sharon Bedard

          Appeal from Madison Circuit Court (DR-15-900028)

          THOMPSON, PRESIDING JUDGE.

         Michael J. Bedard ("the husband") appeals from a judgment of the Madison Circuit Court ("the trial court") divorcing him from Sharon Bedard ("the wife"). In the judgment, among other things not relevant to this appeal, the trial court divided the parties' marital property, awarded the wife sole physical custody of the parties' child ("the child") subject to the husband's visitation, and found the husband in contempt for his failure to comply with a pendente lite order.

         The record indicates the following. The wife filed a complaint for a divorce on January 19, 2015, and, at the same time, she requested pendente lite child support. On March 19, 2015, the husband filed his answer and a motion seeking the entry of the court's "standing pendente lite order," as well as a request for a pendente lite hearing seeking enforcement of the standing pendente lite order. A hearing was held on April 9, 2015, and the next day the trial court entered a pendente lite order awarding the parties joint legal custody of the child and the wife sole physical custody of the child subject to the husband's standard visitation. The parties were directed to provide the trial court with income information pursuant to Rule 32, Ala. R. Jud. Admin., so that the court could determine child support. The trial court also entered the standing pendente lite order that the husband had requested. Among other things, the standing order directed the parties to preserve their assets. The parties complied with the request to provide income information, and on April 28, 2015, the trial court amended the pendente lite order to direct the husband to pay the wife $1, 660 on the first of each month, beginning in May 2015, as pendente lite child support.

         On May 4, 2015, the wife filed a motion to hold the husband in contempt because he had paid only $1, 303 in pendente lite support. On July 1, 2015, the wife filed a second contempt motion alleging that she had received the second child-support payment from the husband on June 30, 2015, and that that payment was for only $281.74. In her motion, the wife said that the husband had told her that the trial court had incorrectly calculated his child-support obligation. Before the trial was held, the wife filed two more contempt motions--one regarding the husband's failure to pay the required child support and the other alleging that the husband had removed the wife from his health-insurance policy in violation of the standing pendente lite order.

         During the trial, the following evidence was adduced. The parties were married in December 2008. The child, a daughter who was seven years old at the time of the trial, was the only child born of the marriage. However, both the husband and the wife had older children from previous marriages. Both parties sought sole physical custody of the child. The husband testified that he was concerned about the child being injured in the wife's care. He said that, on three occasions, he had taken the child to the hospital for what he said were dislocated elbows. He presented photographs of the child with bruises and scrapes and said that the wife had explained away those injuries, saying the child was clumsy. The husband also testified about an occasion when the wife "smacked" the child because she was crying. He said that the child had never given him cause to even send her to her room, adding that the child had "been a very compliant child to me."

         The husband's father, Donald Bedard, testified that the wife was a "fabulous, caring" mother and that he had no concerns about the child's well being in the wife's custody. He said that he had been to the wife's apartment where she had been living with the child since the parties' separation and that, at the wife's home, "there was no anxiety, happiness, no sadness." During the marriage, Donald Bedard said, the parties' home had "a bit of anxiety, walking on eggshells at times ... and fear." Donald Bedard acknowledged that he and other members of his family, including the husband's mother and siblings, did not have a relationship with the husband. Donald Bedard testified that the husband had told him he was not welcome in the husband's home.

         The husband testified that he disciplined his older children by taking away a privilege or grounding them. However, the husband acknowledged that he had been charged with felony child abuse regarding one of those children. In his appellate brief, the husband says only that the charge had been nolle prossed. However, the record indicates that, during his testimony, the husband acknowledged that he had participated in a pretrial-intervention program through the auspices of the district attorney's office. The program required the husband to make a statement admitting guilt and to perform 100 hours of community service.

         The wife testified that she and the child spend time together baking, gardening, sewing, swimming, playing with dolls, and "role playing." She also testified that the husband would not allow her to take the child to South Africa to visit the child's maternal grandfather when the maternal grandfather was dying. The wife testified that, in her opinion, she and the husband would be unable to co-parent the child. The husband testified that he did not know of a reason why the parties could not co-parent the child.

         As to the parties' property, on December 12, 2008, before they married, the parties entered into an antenuptial agreement. Pursuant to the agreement, the husband and the wife were to maintain the separate estates with which they entered the marriage. A specific term of the agreement provided that the husband was to retain his house, where the parties lived during the marriage. However, the agreement further specified that there was an outstanding balance of $36, 000 on a home-equity line of credit ("HELOC") secured by that house at the time the agreement was reached. The agreement provided that the husband "will pay [the wife] the amount of $18, 00 less half the outstanding balance on the loan." No other terms or limitations regarding the payment of the $18, 000 were included in the agreement.

         The wife testified that, when she and the husband married, she sold the house that she had lived in during her previous marriage. She said that $14, 346 out of the total proceeds she earned from the sale of that house were used "to help pay off" the $36, 000 home-equity loan on the husband's house. That loan was paid in full in February 2010. However, in January 2015, shortly before the wife filed the divorce complaint on January 19, 2015, the husband made three withdrawals totaling $39, 000 from the HELOC without the wife's knowledge. The husband testified that he made the withdrawals to pay the college expenses for one of his older children.

         During the marriage, the parties acquired personal property for which the wife sought half the value. At trial, the wife submitted a list of those accumulated assets, which included her estimated value of each asset. In addition to some household items, the wife said, during the marriage the parties had acquired numerous vehicles, including a Ford F250 pickup truck, a fifth-wheel camper, two passenger vans, four motorcycles, two automobiles, a pontoon boat and trailer, two jet skis, two four-wheelers, and four dirt bikes. The wife estimated the total value of the vehicles and household items to be $42, 300. The husband paid for most of the vehicles and items with cash, and the title to most of the vehicles was in his name only. The titles to the Ford F250 truck and the camper were in both the parties' names, and one of the motorcycles was in the wife's name. The evidence indicated that the husband sold some of the vehicles and the pontoon boat while the divorce action was pending.

         As to the issues of contempt, the husband testified that he had removed the wife from his health-insurance policy in December 2015 even though that conduct was prohibited by the standing pendente lite order. The husband said that he had removed the wife from the policy at her request because, he said, the wife had told him she was obtaining health-insurance through her employer. The wife testified that the husband had told her that he was removing her from his health-insurance coverage in December 2015 because, she said, he had told her it was going to cost him an extra $100 each month. Accordingly, the wife said, she was required to purchase her own policy while the divorce action was pending.

         The husband also testified that he did not pay the wife the amount of pendente lite child support the trial court had ordered because, he said, his attorney had told him "they had reached an agreement to pay $1, 303" and that, subsequently, the wife had agreed for the husband to pay her "200-some-odd dollars" in subsequent months.

         After the trial, the trial court entered a judgment that, among other things, awarded the wife sole physical custody of the child subject to the husband's visitation, ordered the husband to pay the wife $1, 284 in monthly child support, and ordered the husband to pay the wife $18, 000 pursuant to the antenuptial agreement and $21, 150, representing half of the value of the vehicles and household items acquired during the marriage. Additionally, the trial court found the husband in contempt for (1) failing to pay the wife the correct amount of pendente lite child support and directed him to pay the wife $2, 139 for unpaid child support; (2) removing the wife from his health-insurance policy and directed him to pay $4, 576 for the amount the wife had paid to secure health-insurance from January 2016 through the date of the trial; and (3) selling items of personal property acquired during the marriage during the pendency of the divorce action, in violation of the standing pendente lite order. The trial court found that, as to the latter ground for contempt, the husband had committed at least three separate acts: selling the pontoon boat, the trailer, and the Ford F250 pickup truck. The husband was sentenced to 15 days in jail, but the sentence was suspended.

         Both parties filed motions to alter, amend, or vacate the judgment. The trial court denied both motions, and the husband filed a timely notice of appeal.

         On appeal, the husband maintains that the trial court erred in finding him in contempt for violating certain provisions of the standing pendente lite order ("the standing order") because, he says, the standing order was invalid. Specifically, the husband contends that "the standing pendente lite order was entered without notice to the husband" and without a Rule 65(b), Ala. R. Civ. P., certification. Therefore, he says, the standing order was invalid and could not support a finding of contempt.

         The record dispels the premise on which the husband's argument is based. The husband filed a motion on March 19, 2015, the same day he filed his answer, asking the trial court to enter the standing order.

"The law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error. 'A party may not predicate an argument for reversal on "invited error," that is, "error into which he has led or lulled the trial court."' Atkins v. Lee, 603 So.2d 937, 945 (Ala. 1992)(quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)). 'That doctrine [of invited error] provides that a party may not complain of error into which he has led the court.' Ex parte King, 643 So.2d 1364, 1366 (Ala. 1993). 'A party cannot win a reversal on an error that party has invited the trial court to commit.' Neal v. Neal, 856 So.2d 766, 784 (Ala. 2002). See also Liber ...

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