from Morgan Circuit Court (CV-18-900117)
Carroll Richards ("the father") appeals from a
judgment entered by the Morgan Circuit Court ("the
circuit court") denying his petition for a writ of
habeas corpus. We reverse the circuit court's judgment.
and Procedural History
January 21, 2016, the Morgan District Court ("the
district court") entered a judgment, based on a
stipulation of the father and the State Department of Human
Resources ("DHR"), acting on behalf of Kimberly A.
Wilson ("the mother"), the mother of the
father's children, finding the father in civil contempt
for his failure to pay child support as previously ordered.
The father was sentenced to incarceration pending the payment
of the $24, 675.02 child-support arrearage amount established
by the judgment; that sentence was suspended so long as the
father made timely payments on the arrearage amount. On March
7, 2018, the district court, in a proceeding initiated by DHR
on behalf of the mother, entered a judgment finding that the
father was not in compliance with the January 21, 2016,
judgment and requiring that the father be incarcerated and
that the father pay $3, 000 to purge himself of the contempt
and to obtain a release from incarceration. That same day,
the father filed in the circuit court a petition for a writ
of habeas corpus, naming Ana Franklin, sheriff of Morgan
County, as the respondent; however, attorneys for DHR
represented "the respondent" and participated in
circuit court conducted a trial on the father's petition
on March 16, 2018. At that trial, the father introduced into
evidence his affidavit of substantial hardship indicating
that his monthly income is $2, 588 and that his monthly
expenses, excluding his child-support obligation, are $2,
655. The father testified that his assets consist of an
automobile worth between $300 and $400 and tools for his job.
According to the father, he has no cash or bank accounts and
lives "week to week."
Namie, an employee of the Morgan County Sheriff's
Department who runs the inmate work-release program,
testified that, while incarcerated, the father would be
eligible for the work-release program. He testified that
transportation would not be provided but that the
father's employer would be allowed to transport the
father to and from work. Namie testified that he had not
inquired as to whether the father's employer would agree
to transport the father. There was no evidence indicating
whether the father might be allowed to transport himself to
and from work.
the trial, the circuit court entered an order that same day,
denying the father's petition and stating, in pertinent
"After hearing on March 16, 2018, the Court finds [that
the father] does have the present ability to pay child
support. He has made an average of $2, 000.00 per month over
the last three (3) years. He lives in a nice home, 45 minutes
away from where he is employed and spends $350.00 - $400.00
per month traveling to and from work. [The father] has 3
children and has only paid $330.60 throughout the entirety of
2017 toward his child support obligation. The Court is left
to conclude that [the father] is purposefully living pay
check to pay check for no reason other than to circumvent his
obligation to pay support for his three (3) minor
father filed his notice of appeal to this court on March 16,
2018. This court subsequently granted a motion filed by the
father seeking his immediate release from incarceration
pending the disposition of his appeal.
appeal, the father argues that the circuit court erred in
denying his petition for a writ of habeas corpus because, he
says, he lacks the present ability to purge himself of the
"'Although one may be guilty of contempt, ...
imprisonment, as a means of coercing payment, may not be
imposed if there is shown a present inability to pay.'
Ex parte Talbert, 419 So.2d 240, 241 (Ala. Civ. App.
1982). '"Imprisonment for contempt should never be
imposed by a judge where failure to pay [court-ordered
support] is not from contumacy, but from inability to comply
with the order."' Taylor v. Johnson, ...