Casey v. Casey
2011 Ala. Civ. App. LEXIS 195
Ala. Civ. App.2011Background
- Former marriage in 1999; child born September 2000 and custody awarded to wife with liberal visitation for husband and $500 monthly child support, divorce judgment entered December 2006.
- Husband deployed and resided in multiple states post-divorce, affecting contact with child.
- In May 2007 wife sought contempt for unpaid support ($819) and medical expenses ($2,900); default judgment entered February 2008 determining arrears at $29,000.
- Husband claimed the 2008 contempt judgment void for lack of notice of a December 2007 hearing; record shows no formal notice to husband’s counsel; husband filed Rule 60(b) motion and later a visitation-modification request.
- Modification action (DR-03-180.02) filed June 2008; trial in 2009 with in camera interview of child; court ordered supervised visitation, drug testing, and mental-health evaluation, while keeping other relief denied.
- Appeal filed only in the modification action; trial court’s denial of Rule 60(b) in contempt action not reviewable; court affirmed supervised visitation, testing, counseling, and attorney’s fee award to wife.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether supervised visitation is appropriate | Casey argues no evidence justifies supervision. | Dorriety Casey contends past conduct and risk justify supervision. | Supervised visitation affirmed; tailored to protect child. |
| Whether drug testing and mental-health counseling were proper conditions | Casey contends these conditions exceed necessary safeguards. | Dorriety Casey asserts testing/counseling necessary to assess risk. | upheld; court can order testing and counseling as part of supervision |
| Whether attorney’s fees to the wife were proper | Casey challenges fee award as improper under § 30-2-54. | Dorriety Casey argues the action involved modification with fees appropriate. | Attorney’s-fee award affirmed under § 30-2-54 |
| Whether Rule 60(b) denial in contempt action is reviewable on appeal | Casey claims denial of 60(b) motion should be reviewed. | Dorriety Casey asserts no cross-appeal in contempt action; cannot review. | Not reviewable; consolidated actions retain separate judgments |
Key Cases Cited
- Carr v. Broyles, 652 So.2d 299 (Ala.Civ.App.1994) (best interests standard for visitation; tailoring orders to protect child)
- Waddell v. Waddell, 904 So.2d 1275 (Ala.Civ.App.2004) (in camera interview evidence presumed sufficient absence of transcript)
- H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276 (Ala.Civ.App.2009) (consolidated actions retain separate identities; need separate judgments)
- Ex parte Devine, 398 So.2d 686 (Ala.1981) (considerations on substance-abuse impact on custodial decisions)
- Kovakas v. Kovakas, 12 So.3d 693 (Ala.Civ.App.2008) (ensure factual basis for substance-mental-health findings affecting visitation)
- M.W.W. v. B.W., 900 So.2d 1230 (Ala.Civ.App.2004) (visitation decisions within trial court discretion)
- Ex parte Lang, 500 So.2d 3 (Ala.1986) (rule for post-judgment motions and finality)
- Pate v. Guy, 934 So.2d 1070 (Ala.Civ.App.2005) (attorney-fee awards in divorce/child-support context)