Page 36

Birmingham Bar Association Bulletin - Fall 2014

Domestic Relations G. R. Fernambucq; Boyd, Fernambucq, Dunn & Fann, P.C. Domestic Relations Update Filing of Petition to Modify and Contempt Action with One Filing Fee Questions as to whether a modification/ contempt matter being filed in the same petition with one filing fee arose in the recent past based mainly on two “opinion of the clerk” rulings from 1979 and 1980. Austin v. Austin, 2013 Ala. Civ. App. Lexis 154 (dated July 19, 2013—this opinion replaced a March 8, 2013 opinion,) addresses the issue. Both of the opinions from the clerk predate the adoption of Rule 70(A), Ala. R. Civ. P. which now governs contempt proceedings arising out of civil actions. As of July 11, 1994, contempt proceedings arising out of civil actions are no longer governed by Rule 33.3, Ala. R. Crim. P. and instead are governed by Rule 70(A). Rule 18, Ala. R. Civ. P. provides that a party may assert as many claims as he or she has against an individual in the same action. Applying these to the modification/contempt issue permits the two to be included in the same pleading. Name Change of Minor Child Probate court has traditionally been the court in which to obtain orders for a name change. Russell v. Fuqua, 2014 Ala., Lexis 66, decided on May 9, 2014, states that the jurisdiction involving the name change of a minor is not probate court, but circuit court. It’s jurisdiction arises from the circuit court’s general jurisdiction described in Ala. Code 1975 §12-11- 30, court of equity jurisdiction as provided for in §12-11-31, and its child custody jurisdiction under §30-3-1. The jurisdiction of probate court is limited to matters submitted to them by statute, and Ala. Code §12-13-1(b)(10) gives jurisdiction over actions in which an adult requests a name change. Grandparents Visitation Act The decision of Ex Parte E.R.G. and D.W.G., 73 So. 3d 634 (Ala. 2011) was issued on June 10, 2011. One day later, the governor of Alabama signed into law Ala. Acts 2011, Act No. 2011-562, which amended the Grandparent Visitation Act, §30-3-4.1 Ala. Code 1975. The new act became effective on September 1, 2011. In Tripp v. Owens 2014 Ala. Civ. App. Lexis 45, the trial court had dismissed a petition where grandparents sought grandparent’s visitation based on the act being unconstitutional. The Court of Civil Appeals reversed due to the passing of the new act and directed that the court allow the grandparents the opportunity to prove, through an evidentiary hearing, that visitation would serve the best interest of the child, unless the constitutionality of the new act is duly challenged and the new act is ruled unconstitutional in accordance with the ordinary rules of civil procedure and applicable Alabama statutes. Modification of Final Judgment of Divorce Allowed While Case is on Appeal Generally, a trial court loses jurisdiction over a case that is pending on appeal. No prior decisions have addressed the issue of whether a trial court may consider a Petition to Modify based on an alleged material change in circumstances while an appeal of an original divorce judgment is pending. Terry v. Terry, 2014 Ala. Civ. App. Lexis 7, concludes that a Petition to Modify a divorce judgment based on a material change in circumstance is a collateral or new proceeding which is separate, “but not entirely divorced from the underlying judgment.” In order for a modification to be considered while an appeal is pending, there must be new facts that are materially and substantially different from those found in the divorce proceeding. The court cautioned that such reconsideration of a judgment on appeal should be judiciously applied. G 36 Birmingham Bar Association


Birmingham Bar Association Bulletin - Fall 2014
To see the actual publication please follow the link above