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Docket Number

AV93000316.

Attorney(S)

William H. Mills of Redden, Mills Clark, Birmingham, for appellant. James E. Turnbach of Turnbach Warren, P.C., Gadsden, for appellee. Sammye Oden Kok and Victoria V. Norris of Dominick, Fletcher, Yielding, Wood Lloyd, P.A., Birmingham, for appellees-intervenors Alan Cohn and Charlotte Cohn.

Judges

THIGPEN, Judge.

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Smart Summary

Case Summary: Deana Sharon Dotson Cohn v. Jeffrey Lee Cohn, Court of Civil Appeals of Alabama (Oct. 7, 1994; rehearing Dec. 2, 1994)

Factual and Procedural Background

The parties divorced in 1990. The divorce judgment awarded joint custody of their three minor children, with the mother having primary physical custody. The judgment incorporated the parties' agreement that the children would reside within 75 miles of Gadsden (Etowah County area). The judgment also required the father to pay child support.

In May 1993, the father filed a petition to modify the judgment seeking exclusive custody, alleging, among other things, that the mother's planned move to Birmingham was a material change in circumstances and that removing the children from Etowah County would not be in their best interests. The mother answered, denying the father's allegations, and filed a counterpetition seeking exclusive custody, an arrearage with interest, a contempt finding for failure to pay support, and a specific visitation order.

After ore tenus proceedings (four days of testimony producing roughly 1000 pages of transcript and a nine-volume record), the trial court denied the father's petition for a custody change, enjoined the mother from removing the children from Etowah County, awarded the mother an arrearage (but expressly denied interest), refused to find the father in contempt, and established a detailed visitation schedule. The mother appealed.

Legal Issues Presented

Whether the trial court abused its discretion by restricting the mother, as primary custodian, from removing the children from Etowah County (i.e., enforcing or interpreting the territorial restriction).
Whether the trial court erred by maintaining mid-week, overnight visitation with the father.
Whether the trial court erred in refusing to find the father in contempt for support noncompliance and in denying the mother's request for attorney fees.
Whether the trial court erred by not awarding interest on the child-support arrearage.

Arguments of the Parties

Appellant (Mother)'s Arguments

The trial court abused its discretion by restricting her from removing the children from Etowah County; she contended that (1) this was a modification of the original judgment not requested by the father, (2) there was no evidence supporting a change, and (3) the restriction unreasonably restrained her custodial rights and her freedom to travel or relocate (including obtaining employment in Birmingham).
The trial court should have eliminated mid-week, overnight visitation with the father because it disrupted stability and created discipline problems.
The trial court should have found the father in contempt for failing to comply with prior support orders and should have awarded her attorney fees.
The trial court should have awarded interest on the calculated arrearage.

Appellee (Father)'s Arguments

In his petition the father sought exclusive custody and asked generally for further appropriate relief; in pleadings and at the hearing he made clear that his primary goal was to keep the children in Etowah County, which he believed was in the children's best interests.
The father's position regarding maintaining the children's residence in Etowah County was expressly tried before the court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McDaniel v. McDaniel, 621 So.2d 1328 (Ala.Civ.App. 1993)	Territorial restrictions on movement of children may be upheld when they promote or protect the children's best interests; trial court's parens patriae role affords broad discretion.	The court relied on McDaniel to support upholding the territorial restriction as within the court's broad discretion to protect children's best interests and to emphasize that such a restriction can be appropriate.
Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App. 1987)	Visitation decisions rest within the trial court's broad discretion and are reviewed under the ore tenus rule; affirm absent no credible evidence.	The court applied Andrews to affirm the trial court's visitation determination (mid-week overnight), noting the ore tenus presumption of correctness and that visitation is case-specific and governed by the children's best interests.
E.W. v. Montgomery Department of Human Resources, 602 So.2d 428 (Ala.Civ.App. 1992)	Visitation and custody determinations are guided by what is in the children's best interests.	The court cited E.W. to reinforce that visitation determination must be guided by children's best interests in affirming the visitation schedule.
Hill v. Frye, 603 So.2d 1073 (Ala.Civ.App. 1992)	Trial court has discretionary authority to determine contempt and award attorney fees.	The court cited Hill to confirm the trial court's discretion in contempt and attorney-fee decisions and to support upholding the trial court's refusal to find contempt and deny fees.
Pierce v. Helka, 634 So.2d 1031 (Ala.Civ.App. 1994)	Judgment on contempt and attorney fees is clothed with a presumption of correctness when based on ore tenus evidence.	The court invoked Pierce to explain that the trial court's ruling on contempt and attorney fees carried an ore tenus presumption and that the record supported the trial court's exercise of discretion.
State Department of Human Resources ex rel. McGhee v. McGhee, 634 So.2d 573 (Ala.Civ.App. 1994)	A mother (or obligee) is entitled to have the amount of interest due on unpaid support installments calculated and a judgment entered for that amount.	The court applied McGhee to hold that the mother was entitled to a calculation of interest on the arrearage and that failure to award interest was erroneous.
McDavid v. McDavid, 627 So.2d 446 (Ala.Civ.App. 1993)	Failure to award interest on an arrearage can be reversible error.	The court cited McDavid as authority supporting reversal of the portion of the judgment denying interest on the arrearage.
Grayson v. Grayson, 628 So.2d 918 (Ala.Civ.App. 1993)	A trial court possesses inherent power over its judgments to interpret, implement, or enforce them; ambiguous provisions may be clarified and a clarifying order is not a modification.	The court relied on Grayson to conclude the trial court's injunction interpreting and enforcing the prior territorial restriction was a permissible clarification (not an improper modification).
Graham v. Graham, 555 So.2d 1126 (Ala.Civ.App. 1989)	Trial court has inherent power to enforce its own judgments.	The court cited Graham to reject the mother's claim that the injunction was gender-based and to support the trial court's inherent power to enforce its prior order.

Court's Reasoning and Analysis

The court addressed each contested issue by applying governing principles and the evidence in the record.

Territorial Restriction:

The court observed that the father's pleadings and hearing testimony made clear his goal to keep the children in Etowah County and that the territorial issue was expressly tried below (citing Rule 15(b), A.R.Civ.P.).
Relying on McDaniel, the court explained that territorial restrictions on children's movement can be upheld when they promote the children's best interests and that the trial court's parens patriae role gives it broad discretion in such determinations.
The record showed Etowah County was the children's only known home, with supportive extended family and local educational, cultural, and social structures meeting the children's needs (including a child with special needs). The court found ample evidence supporting the trial court's conclusion that removal at that time would not be in the children's best interests.
The court distinguished the restriction on the children's residence from any restriction on the mother's freedom to work or live elsewhere, noting the order restrained removal of the children's residence but did not bar the mother from obtaining employment in Birmingham.
On rehearing the court expanded its analysis to state the trial court's order clarified and enforced an ambiguous provision of the original agreement (citing Grayson), and that a clarifying order is not a modification. The court rejected the mother's contention that the injunction was gender-based, noting no evidence that the father was threatening to violate the prior order while the mother was.

Visitation (Mid-week, Overnight):

The court reiterated that visitation determinations are within the trial court's broad discretion and subject to the ore tenus rule; they will be affirmed unless unsupported by credible evidence (citing Andrews and E.W.).
The mid-week overnight visitation was part of the parties' original agreement incorporated into the divorce judgment. The court found that this arrangement served the children's best interests by promoting their relationship with the father and that a review of the large record revealed no error in maintaining that arrangement.

Contempt and Attorney Fees:

The court noted the trial court's discretionary authority to find contempt and award attorney fees (citing Hill) and that such rulings are clothed with a presumption of correctness when based on ore tenus evidence (citing Pierce).
After reviewing the record concerning the mother's contempt allegations, the appellate court concluded the trial court did not abuse its discretion in refusing to find contempt and in denying attorney fees.

Interest on Arrearage:

The trial court calculated a $7,858 arrearage against the father but expressly stated "no interest is awarded."
The appellate court held that the mother was entitled to have interest on unpaid support installments calculated and entered as a judgment (citing State Dep't of Human Resources ex rel. McGhee v. McGhee) and identified the trial court's failure to award interest as reversible error (citing McDavid).
The court therefore reversed the denial of interest and remanded for proper calculation and entry of judgment for interest due on the arrearage.

Rehearing Clarification:

On rehearing the court emphasized the volume and quality of the evidence (four days of testimony, roughly 1000 pages of transcript) and the trial judge's familiarity with the case, concluding additional factual recitation would add nothing to precedent or aid disposition.
The court characterized the trial court's order as a clarification and enforcement of the ambiguous territorial provision in the original agreement rather than a modification, and reiterated that the trial court has inherent power to interpret and enforce its judgments (citing Grayson and Graham).

Holding and Implications

Core Ruling: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

Direct Effects on the Parties:

The appellate court affirmed the trial court's orders upholding the territorial restriction (enjoining the mother from removing the children's residence from Etowah County), maintaining the mid-week overnight visitation schedule, and declining to find the father in contempt or to award the mother attorney fees.
The appellate court reversed that portion of the judgment denying interest on the child-support arrearage and remanded for a proper calculation of interest and entry of judgment consistent with the opinion.
The mother's separate request for an attorney fee on appeal or otherwise was denied by the court.

Broader Implications:

The opinion applies established principles—trial-court discretion in custody and visitation matters, the ore tenus presumption of correctness, and a trial court's inherent power to interpret and enforce its judgments—to the facts presented. The court did not announce new legal doctrine; its disposition enforces these principles in the circumstances of this case and requires correction only as to the calculation and award of interest on the arrearage.

Disposition: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. Opinion on rehearing: Opinion extended; Rule 39(k) motion denied; application for rehearing overruled.

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Deana Sharon Dotson COHN v. Jeffrey Lee COHN.

THIGPEN, Judge.

This case involves post-divorce proceedings.

The parties divorced in 1990, and the divorce judgment awarded the parties joint custody of their three minor children, with the mother having primary physical custody. Incorporated in the judgment was an agreement of the parties that the children would reside within 75 miles of Gadsden, apparently the area most familiar to the children as their family home. The judgment also ordered the father to pay child support. In May 1993, the father filed a petition to modify that judgment, seeking exclusive custody of the children. He alleged, inter alia, that the mother's plan to move to Birmingham was a material change in circumstances, and that it would not be in the children's best interests to be removed from Etowah County, and that, therefore, he should have primary physical custody. The mother filed an answer denying the father's allegations, and she filed a counterpetition, seeking, inter alia, exclusive custody, an arrearage with interest, an order finding the father in contempt for failure to comply with the previous support order, and an order specifically addressing visitation.

Following ore tenus proceedings, the trial court entered an order that, inter alia, denied the father's petition for a custody change, enjoined the mother from removing the children from Etowah County, awarded the mother an arrearage, refused to find the father in contempt, and addressed visitation by providing a detailed schedule. The mother appeals.

The mother argues that the trial court abused its discretion by (1) restricting her from removing the children from Etowah County; (2) not eliminating mid-week, overnight visitation with the father; (3) not finding the father in contempt and failing to award her attorney fees; and (4) not ordering the father to pay interest on the arrearage.

The mother first argues that the trial court abused its discretion when it restricted her, as primary custodian of the children, from removing the children from Etowah County. She argues that this is a modification of the original judgment which was not requested, that no evidence supports the change, and that it unreasonably restrained her custodial rights and her freedom to travel and/or relocate.

In addition to requesting custody, the father generally requested further appropriate relief, and was clear in his requests in his pleadings and at the hearing that his primary goal was to keep the children in Etowah County, which he believed would be in the best interests of the children. The issue regarding the children's residential restriction was expressly tried before the trial court by the parties. Rule 15(b), A.R.Civ.P.

Restrictions on the movement of children may be upheld when the territorial restriction promotes or protects the best interests of the children involved. McDaniel v. McDaniel, 621 So.2d 1328 (Ala.Civ.App. 1993). The trial court's position regarding the children, i.e., parens patriae, affords it broad discretionary authority. McDaniel, supra. "There is no wider area for the exercise of judicial discretion than that of providing and protecting the best interests of the children." McDaniel at 1330.

Etowah County is the only home these children have ever known. In that area, they have supportive, extended family, who actively participate in the children's lives. There was evidence presented that relocating the children outside Etowah County at this time could unnecessarily place limitations on their contact with members of their extended family and intensify the impact of the parents' divorce on the children. There was also evidence presented regarding the consequences of a relocation on the children's educational, cultural, and social needs. The children's needs, including the special needs of one child, are presently being adequately satisfied by the custodial parent and others, including the noncustodial parent, the extended family, and the educational system, all located in Etowah County. The mother testified that a support system could be established in her new location to adequately address the children's needs; however, the trial court's conclusion that removing the children from their current surroundings and environment at this time was not in their best interests is supported by ample evidence. We note that there is no prohibition against removal of the restriction in the future as the children's circumstances and needs change.

The mother's argument that the residence restriction on the children places an unreasonable or unconstitutional restriction on her right to obtain employment in Birmingham and to relocate there is unpersuasive. The territorial restriction applies to the children's residence, not to the mother's residence. The mother is free to obtain employment in Birmingham, or elsewhere. The order restrains the mother from removing the children's residence from Etowah County. The mother has failed to disclose error in regard to the trial court's territorial restriction.

Next, the mother argues that the trial court erred in not eliminating overnight, midweek visitation with the father. She argues that the mid-week visitation was disruptive to stability and created discipline problems.

Visitation, like custody, is a matter that rests soundly within the broad discretion of the trial court, and its determination regarding visitation must be affirmed absent a finding that the judgment is not supported by any credible evidence, and that the judgment, therefore, is plainly and palpably wrong. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App. 1987). The ore tenus rule affords the judgment in the instant case a presumption of correctness on appeal. Andrews, supra. Although visitation is a case-by-case determination, the trial court is guided by what is in the children's best interests. E.W. v. Montgomery Department of Human Resources, 602 So.2d 428 (Ala.Civ.App. 1992). The mid-week, overnight visitation with the father was originally part of the parties' agreement regarding visitation, which was incorporated into the divorce judgment. That arrangement, albeit somewhat unique, protects and enhances the children's best interests by promoting and preserving the relationships between the children and the father. Our careful and thorough review of the approximately 1000 pages of testimony reveals no error in the trial court's decision to maintain the original agreement regarding the mid-week overnight visitation.

The mother next argues that the trial court erred in not finding the father in contempt, and, therefore, that the trial court erred in failing to award her an attorney fee. A trial court has the discretionary authority to determine whether to find one in contempt and to award an attorney fee. Hill v. Frye, 603 So.2d 1073 (Ala.Civ.App. 1992). Its judgment on the question of contempt and attorney fees is clothed with a presumption of correctness when it is based on ore tenus evidence. Pierce v. Helka, 634 So.2d 1031 (Ala.Civ.App. 1994). After hearing testimony regarding the circumstances surrounding the mother's allegations of contempt, the trial court refused to find the father in contempt and denied her request for an attorney fee. The record supports that judgment. On appeal, the mother has shown no abuse of the trial court's discretion.

The mother's final argument is that the trial court erred in not awarding her the requested interest on the arrearage. The trial court's order indicates that the father made less than full payments in certain years, and it allowed the father some credits to arrive at a $7858 arrearage. It entered a judgment against the father for that amount, and the order expressly stated that "no interest is awarded." The mother was entitled to have the amount of interest due on the unpaid support installments calculated and a judgment entered against the father for that amount. State Department of Human Resources ex rel. McGhee v. McGhee, 634 So.2d 573 (Ala.Civ.App. 1994). The trial court's failure to award interest on the arrearage is reversible error. McDavid v. McDavid, 627 So.2d 446 (Ala.Civ.App. 1993).

Accordingly, that portion of the judgment denying interest on the arrearage is reversed. The cause is remanded for a proper calculation of interest due on the arrearage and for the entry of a judgment consistent with this opinion.

The mother's request for an attorney fee is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

ROBERTSON, P.J., and YATES, J., concur.

On Application for Rehearing

THIGPEN, Judge.

Although our original opinion adequately addresses the issues on appeal, we are compelled to extend that opinion on rehearing to reiterate that we find no abuse of discretion in the trial court's judgment regarding the issues concerning territorial restriction and visitation. On application for rehearing, the mother, pursuant to Rule 39(k), A.R.App.P., requests that this court extend its opinion to include a statement of additional facts, and ultimately, to rule in her favor on those issues.

The trial court heard four days of testimony from a seemingly endless parade of witnesses, including psychiatrists, school teachers, members of the clergy, and family members. Those proceedings yielded approximately 1000 pages of transcript, and the record consisted of nine volumes. That public record clearly supports the trial court's judgment. Furthermore, the trial judge in this case was not a stranger to the proceedings or to these parties, having presided over the parties' original divorce action and over subsequent post-divorce proceedings. It is impractical and unnecessary for this court to include every factual detail the mother has asked us to include; to do so would add nothing to existing precedent and would not aid in the disposition of this case.

The initial agreement, which was incorporated into the divorce judgment, contains, in part, the following ambiguous language:

"The parties mutually agree that they shall have joint custody of their minor children, and further agree they will reside in Etowah County, Alabama, and have the children reside within a radius of seventy-five (75) miles of Gadsden, Alabama, until the children are each nineteen (19) years of age or leave home to attend school."

The mother now attempts to escape the binding force of that agreement, which she herself participated in drafting. That agreement also contained a provision regarding mid-week visitation.

The trial court's order simply clarified and enforced its own prior order. The trial court held that the mother was "enjoined and restrained from removing the minor children . . . from Etowah County, Alabama, pending further orders of this Court." It appears that the trial court interpreted the mother's impending relocation as a violation of the agreed territorial restriction. "A trial court possesses an inherent power over its own judgments that enables it to interpret, implement, or enforce those judgments." Grayson v. Grayson, 628 So.2d 918, 919 (Ala.Civ.App. 1993). Ambiguous provisions may be clarified by a trial court's order, and a clarifying order is not a modification. Grayson, supra. Therefore, the mother's contentions regarding modification are without merit.

Additionally, the mother's contention that the trial court's injunction is gender-based is meritless. The trial court's order interpreting the prior order and enjoining the mother from removing the children from Etowah County is based upon the mother's threatened violation; the record contains nothing to indicate that the father was threatening to violate the prior order. A trial court has the inherent power to enforce its own judgments. Graham v. Graham, 555 So.2d 1126 (Ala.Civ.App. 1989).

OPINION EXTENDED; RULE 39(k) MOTION DENIED; APPLICATION FOR REHEARING OVERRULED.