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Richards v. Franklin

Alabama Court of Civil Appeals

August 17, 2018

Lee Carroll Richards
v.
Ana Franklin, Sheriff of Morgan County

          Appeal from Morgan Circuit Court (CV-18-900117)

          MOORE, JUDGE

         Lee 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.

         Facts and Procedural History

         On 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 that proceeding.

         The 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."

         Steve 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.

         Following the trial, the circuit court entered an order that same day, denying the father's petition and stating, in pertinent part:

"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 children."

         The 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.

         Discussion

         On 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 contempt.

"'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, ...

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