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J.S.S. v. D.P.S.

Alabama Court of Civil Appeals

January 11, 2019

J.S.S.
v.
D.P.S.

Page 435

          Appeals from Shelby Circuit Court (DR-11-900581.01 and DR-11-900581.02), Lara M. Alvis, Trial Judge.

          Thomas Logan Davis and Lauren Glass Spradling of Peeples & Davis, Birmingham, for appellant.

          Submitted on appellant’s brief only.

         OPINION

         MOORE, Judge

          J.S.S. ("the father") appeals from a judgment entered by the Shelby Circuit Court ("the trial court"), in case number DR-11-900581.01 and case number DR-11-900581.02, to the extent the judgment declined to modify the physical custody of E.S. ("the child"), the father’s child with D.P.S. ("the mother") and declined to hold the mother in contempt. In appeal number 2170865, involving the contempt issues, we affirm the judgment; in appeal number 2170866, involving the custody-modification issues, we remand the case to the trial court for further proceedings.

          Procedural History

          On February 15, 2013, the parties were divorced by a judgment of the trial court that incorporated an agreement between the parties. That agreement provided that the mother would exercise sole legal and sole physical custody of the child and that the father would have specified visitation and reasonable telephone contact with the child.

Page 436

          On September 11, 2014, the father filed a verified petition for a rule nisi; that petition was assigned case number DR-11-900581.01. He alleged, among other things, that the mother had failed to allow him his visitation periods with the child, had failed to allow him reasonable telephone contact with the child, and had failed to provide him notice of her relocation with the child. He amended his petition on October 27, 2014.

          On December 10, 2014, the mother filed a petition for a modification of the father’s visitation; that petition was assigned case number DR-11-900581.02. On April 22, 2015, the father moved to consolidate the actions; that motion was granted on April 24, 2015. On August 7, 2015, the father filed, in case number DR-11-900581.02, a counterpetition to modify custody, visitation, and child support. The mother answered the counterpetition on August 12, 2015.

          On February 10, 2016, the father filed a motion requesting, among other things, that the trial court hold the mother in contempt for denying his weekend visitation and telephone contact with the child.

          On March 11, 2016, the trial court entered an order stating that the father would have "the care, custody, and control" of the child "for an uninterrupted period of twelve (12) consecutive days." The trial court reserved the issue of contempt for the trial on the father’s petition for a rule nisi, the mother’s petition to modify, and the father’s counterpetition to modify.

          On March 28, 2016, the father filed a verified motion for contempt; he alleged that the mother had denied him his "spring break" visitation with the child. On May 18, 2016, the father filed a second verified motion for contempt, alleging, among other things, that the mother had failed to allow him ...


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