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Poore v. Poore

Alabama Court of Civil Appeals

March 8, 2019

Kenneth W. Poore
v.
Molly B. Poore

          Appeal from Madison Circuit Court (DR-08-106)

          MOORE, JUDGE.

         Kenneth W. Poore ("the father") appeals from a judgment entered by the Madison Circuit Court ("the trial court") dismissing his action seeking to terminate his child-support obligation to Molly B. Poore ("the mother"). We reverse the trial court's judgment.

         Procedural History

         On March 30, 2009, the parties were divorced by a judgment entered by the trial court in case no. DR-08-106. That judgment ordered the father to pay child support to the mother in the amount of $1, 850 per month "until the [parties'] youngest child [reaches] the age of majority according to the State of Alabama...." The father's monthly child-support obligation was ordered to be paid through an income-withholding order.

         On September 8, 2017, the father filed an "Affidavit for Termination of Withholding Order for Support" alleging, among other things, that all the children subject to the income-withholding order have or would reach the age of majority as of September 10, 2017, and that no arrearage was owed on the support order.

         On September 25, 2017, the mother filed in case no. DR-08-106 a motion requesting a hearing and alleging that the father had not paid the child support as ordered in the divorce judgment.[1]

         On April 9, 2018, the trial court entered a judgment stating:

"This case came on for trial on April 9, 2018 pursuant to the duly published and distributed docket of this Court. [The father] failed to appear. [The mother] appeared. This case is DISMISSED for lack of prosecution."
On April 9, 2018, the father filed a motion asserting:
"1. [The father's] counsel resides in Arab, Alabama, and had an unexpected family emergency to arise prior to leaving for Court for the hearing set in this case.
"2. Counsel's paralegal left a telephone message with the office of the Judge at approximately 8:40 AM, informing the Judge that counsel would be approximately twenty (20) minutes late for the hearing as a result of the emergency.
"3. Counsel's paralegal attempted to make another phone call in the hope of reaching someone in the Judge's office at approximately 8:57 A.M., but had to leave another message.
"4. Counsel arrived in the courtroom at approximately 9:30 AM while the docket[] ...

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