Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Casey v. Casey

Alabama Court of Civil Appeals

March 15, 2019

Matthew Kyle Casey
v.
Jeni Corley Casey

          Appeals from Shelby Circuit Court (DR-14-900777.01 and DR-14-900777.02)

          DONALDSON, JUDGE.

         Matthew Kyle Casey ("the father") appeals from two identical judgments entered by the Shelby Circuit Court ("the trial court"), one in case no. DR-14-900777.01 ("the .01 action") and the other in case no. DR-14-900777.02 ("the .02 action"). In appeal no. 2170449, we dismiss the father's appeal from the judgment entered in the .01 action. In appeal no. 2170450, we affirm the judgment entered in the .02 action.

         Facts and Procedural History

         In January 2015, the trial court entered a judgment divorcing the father and Jeni Corley Casey ("the mother"); that judgment incorporated a written agreement that had been entered into between the parties. The divorce judgment provided that the parties would have joint physical custody of their two children, a daughter born in 2008 ("the daughter") and a son born in 2009 ("the son"); that the father would have physical custody during the first and third full weeks of each month; and that the mother would have physical custody during the second and fourth full weeks of each month; but that, despite the general custody provisions recited above, the father would have physical custody on Father's Day, the mother would have physical custody on Mother's Day, and each parent would have physical custody of the children on each child's birthday every other year. The divorce judgment did not specify which party would have physical custody of the children during the Thanksgiving, Christmas, or Easter holidays. The divorce judgment further provided that neither party would pay child support; however, the divorce judgment provided that the mother would be responsible for the cost of the children's clothes and shoes, that the father would provide medical and dental insurance for the children, and that each party would be responsible for one-half of various other expenses of the children. In addition, the divorce judgment provided that the parties would have joint legal custody with respect to the children but that, in the event the parties could not agree on academic, religious, civic, cultural, athletic, medical, or dental matters, the father would have primary authority with respect to academic and athletic matters and the mother would have primary authority with respect to religious, civic, cultural, medical, and dental matters. Finally, the divorce judgment prohibited each party from making disparaging remarks about the other party to the children or to other persons in the children's presence and prohibited each party from "be[ing] under the influence of alcohol or drugs during any [custodial] period, or when in the presence of [the daughter or the son]."

          In October 2015, the mother commenced the .01 action by filing a complaint that stated a claim seeking modification of the divorce judgment and a claim seeking a finding of contempt against the father. The mother's modification claim sought a judgment providing that she would have sole physical and sole legal custody of the children, awarding her child support, and providing that each party would be responsible for providing clothes and shoes for the children to wear while they were living at that party's residence.

         The mother's contempt claim alleged that the father had willfully violated the divorce judgment by making disparaging remarks about the mother to the children and by willfully refusing to pay his share of certain expenses of the children as required by the divorce judgment. Answering the mother's complaint, the father denied the material allegations of the mother's contempt claim and asserted that the mother's modification claim was due to be dismissed because, the father said, the mother had improperly joined it with her contempt claim.

         Although the joinder of the mother's modification and contempt claims in a single action was proper, see Austin v. Austin, 159 So.3d 753, 757 (Ala. Civ. App. 2013) (rejecting a party's argument challenging the propriety of the other party's joinder of her post-divorce-modification claim and her contempt claim in a single action), the mother commenced the .02 action by filing another copy of the same complaint with which she had commenced the .01 action and by paying a second filing fee. Despite the fact that the complaints the mother had filed in the .01 action and the .02 action were identical, no issue was raised in the trial court regarding whether the commencement of the .02 action violated § 6-5-440, Ala. Code 1975, which prohibits a party from prosecuting two actions stating the same claim against the same party at the same time in the courts of this state. Moreover, none of the mother's claims were dismissed before the entry of the final judgments in the .01 action and the .02 action.

         The father did not answer the mother's complaint in the .02 action. On July 29, 2017, the trial court implicitly consolidated the two actions for trial by setting each of them for trial at the same time on October 3, 2017. On October 3, 2017, the trial court held a bench trial at which it received evidence ore tenus.

         At trial, a witness testified that the father had consumed whiskey while trick-or-treating with the children on Halloween night in 2016 and that, by the time the children had finished trick-or-treating, the father was slurring some of his words when he spoke. The witness further testified that she had sent the mother a text message informing her that the father had been consuming alcohol on that occasion and stating that the witness did not think his doing so was appropriate. The parties' daughter testified that, during a trip to the beach in July 2017, the father had taken the children to a restaurant to eat and that he had drunk "a bunch of beers" at the restaurant. The parties' daughter further testified that there were occasions when the father had drunk "[b]eer after beer after beer after beer." She testified that he did not drink beer every night but that he drank beer more often than one night per month. The father testified that, aside from a single margarita he had drunk during the July 2017 beach trip, he had not consumed any alcohol in the presence of the children. The trial court's comments to the father upon the conclusion of the evidence at trial indicate that the trial court did not find the father's denials that he had consumed alcohol in the presence of the children to be credible.

         The mother testified that she was concerned about the children's hygiene while they were in the father's custody and gave examples of her complaints. The father also admitted that the mother had complained to him that the children were not well groomed when they returned from his custody; however, he testified that he disagreed with the mother's opinion on that issue.

         The mother testified that the father had excluded her from participating in at least one meeting with the daughter's teacher by coming to the school before the appointed time for the meeting and meeting with the teacher by himself before the mother had arrived. The mother also testified that she had filled out a contact form for the children's school and had sent it to the father for him to add his contact information; however, the father had not merely added his contact information to the form -- he had also scratched out the mother's contact information before he turned it into the school so that the school would contact only him about the children. The mother testified that, when the school sends written information home with the children during the father's custodial weeks, he never shares it with her and that she has to contact the school to find out if there are any upcoming field trips or other school activities. The mother also testified that, because the father did not share information with her concerning the children's schooling and school-related activities and because he had excluded her from school-parent communications, she was not able to be as involved in the children's schooling and school-related activities as she wanted to be. The mother further testified that the father had made decisions and had taken action that affected the children without consulting her first. As an example of the father's acting unilaterally without first consulting her, she cited the father's signing the son up for "travel" soccer without consulting either her or the son. The father testified that the son had quit travel soccer because the mother would not take him to practice; however, the son testified that he had quit travel soccer because he did not want to play travel soccer and instead wanted to play recreational soccer.

         The mother testified that the son had told her that he also wanted to play baseball and that she had told the father but that the father had refused to allow the son to play baseball because, according to the father, "it's a dying sport and it's boring and all they do is stand around." The father admitted that the son had told the father that the son wanted to play baseball and that the father had refused to allow the son to play baseball despite the mother's telling the father that she thought the son should be allowed to play baseball if he wanted to. In response to a question posed by the trial court, the mother testified that the deadline for signing up for baseball had already passed.

         The father admitted that he had refused to pay any portion of the cost of uniforms and costumes the children needed for extracurricular activities, citing the provision of the divorce judgment requiring the mother to pay for the children's clothing and shoes as his justification for the refusal. Both parties testified that the clothing the children were to wear while in the father's custody had been a source of dispute. The mother testified that she had agreed to be responsible for the children's clothing and shoes in the parties' written agreement because she was afraid the father would not clothe the children appropriately. She further testified that she did not want the children to have to live out of a suitcase while they were at the father's residence and, therefore, had asked the father to buy a set of clothing for the children to wear while they were at his residence. She testified that the father had refused, citing the provision of the divorce judgment making the mother responsible for the children's clothes and shoes. The mother testified that she did not think that she should be obligated to provide two sets of clothing and shoes for each child as suggested by the father. The father admitted that he had refused to buy any clothes for the children to keep at his residence. He testified that he washes the clothing the children have worn while at his residence and that he returns that clothing to the mother between 6:15 and 6:30 a.m. on the Monday of her custodial weeks. The mother testified that the father returns the clothing wadded up in the children's suitcases and that she cannot determine whether it has been washed.

         After the trial had been completed on October 3, 2017, the trial court, that same day, entered two orders in both the .01 action and the .02 action that granted relief pendente lite. Among other things, those orders required the father to be randomly tested for alcohol and illicit drugs four times per month, required the mother to have the children at school on time when they were in her custody, required the parties to file CS-41 and CS-42 child-support forms, and ordered: "effective immediately, the parties' [son] shall be enrolled in [a recreational soccer league]. Both parties shall split said costs of ALL expenses including uniform and all attire associated with the league. Both parties shall transport the minor child on the week that they have custody."

         On October 8, 2017, the trial court entered identical judgments in the .01 and the .02 actions. In pertinent part, each of those judgment provides:

"1. The parties shall both maintain joint legal and physical custody of both of the parties' minor children. However, during the academic school year, the minor children shall reside with the [mother] during the school week. However, the [father] shall pick up the minor children each day from the bus stop and have them in his care, custody and control each day until 6:00 p.m. The father shall transport the minor children to the home of the [mother] each evening at 6:00 p.m.
"2. During the summer months that the children are not in school, the parties' week off/week on custodial arrangement as ordered in the final judgment of divorce shall be in full force and effect with the [father] having the first full week of summer.
"3. The fall break each year shall be spent entirely with the [mother]. The week long spring break each year shall be spent entirely with the [father].
"4. During the academic school year, the [father] shall have visitation the first, third and fifth weekends of each month beginning after school on Friday until 6:00 p.m. on Sunday. The [father] shall transport the children to the home of the [mother] after each visitation period.
"....
"6. The current tiebreakers [regarding disputes in legal-custody matters] listed in the final judgment of divorce are hereby modified as follows:
"A. Academic: [mother] ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.