80 So. 3d 935
Ala. Civ. App.2011Background
- Parents Mullins (father) and Sellers (mother) divorced in 1995; custody and child support orders modified in 2001 and 2001; old agreed arrangement temporarily relieved father of support during older child's high school; August 2001 modification required support through clerk; disputes over timings and direct payments persist.
- June 2008–October 2009 ore tenus hearing addressed alleged failure to pay through clerk from June 2002 onward; evidence showed periods of direct payments to mother and periods of nonpayment.
- Trial court on remand found 76 acts of criminal contempt (for failure to pay via clerk 2002–2008) and determined arrearage; sentenced father to jail and ordered attorney’s fees.
- This court reversed as to seven instances of contempt (June–December 2002) and remanded for a judgment aligned with the opinion; otherwise affirmed the arrearage calculation and other aspects.
- On remand, trial court entered detailed findings crediting direct payments and assessing arrearage at $22,941.32, with remaining contempt findings for 69 months (January 2003–September 2008) upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether seven instances of contempt were correctly found criminal | Mother argued contempt for nonpayment via clerk; all instances properly identified | Father argued some periods not willful due to agreement and direct payments | Seven June–December 2002 contempts reversed; remaining contempts affirmed; remand with instructions |
| Whether the arrearage calculation was correct | arrearage properly computed including interest and allowed credits | credit for older-child support and admissibility of records disputed | Arrearage calculation affirmed overall; credits properly applied under record |
| Whether the award of credits for direct payments to the mother affected the arrearage | credits for direct payments should reduce arrearage | credit limits and admissibility of evidence may constrain credits | Credit for direct payments acknowledged; no reversal of arrearage determination |
| Whether attorney's fees were improper given criminal contempt finding | attorney’s fees may be warranted; not properly barred by contempt status | Payne rule bars attorney’s fees in criminal contempt | No reversal on attorney’s fees; argument not raised below |
Key Cases Cited
- Gladden v. Gladden, 942 So. 2d 362 (Ala. Civ. App. 2005) (civil vs criminal contempt; punitive vs coercive nature; defined sanctions)
- Teichmann v. Teichmann, 772 So. 2d 1196 (Ala. Civ. App. 2000) (credit for direct payments; admissibility context)
- Ex parte Ferguson, 819 So. 2d 626 (Ala. 2001) (beyond reasonable doubt standard for criminal contempt)
- Davenport v. Hood, 814 So. 2d 268 (Ala. Civ. App. 2000) (civil contempt coercive nature and sanctions)
- Shonkwiler v. Kriska, 780 So. 2d 703 (Ala. Civ. App. 2000) (contempt framework and standards)
- Hollis v. State ex rel. Hollis, 618 So. 2d 1350 (Ala. Civ. App. 1992) (mutual agreement defense; cannot relieve contempt obligation)
- Prescott v. Prescott, 6 So. 3d 552 (Ala. Civ. App. 2008) (general appellate review of trial-court rulings; limitations on new arguments)
- Empire Life Ins. Co. v. State ex rel. Payne, 351 So. 2d 538 (Ala. 1977) (attorney’s fees in criminal contempt considered surplusage)
- Ex parte Weaver, 871 So. 2d 820 (Ala. 2003) (appellate consideration of issues raised for first time on appeal)