Jacob Shook v. Erica Shook

Rel: April 28, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter

Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that

corrections may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2022-2023

_________________________

2210161

_________________________

Jacob Shook

v.

Erica Shook

_________________________

2210206

_________________________

Erica Shook

v.

Jacob Shook

Appeals from Madison Circuit Court

(DR-17-900171.01)

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HANSON, Judge.

Jacob Shook ("the father") appeals from a judgment of the

Madison Circuit Court ("the trial court") that modified his child-support

obligation and held him in contempt of court. Erica Shook ("the

mother") cross-appeals from that same judgment, which denied her

request to modify custody of O.L.S. ("the child").

Procedural History

The parties were divorced by a judgment entered by the trial court

in March 2018. The divorce judgment reads, in pertinent part:

"1. The bonds of matrimony heretofore existing

between the plaintiff and the defendant be and the same are

hereby dissolved and [the mother] is forever divorced from

[the father]….

"2. The Settlement Agreement duly executed by the

parties and filed with the Clerk of this Court on March 22,

2018, is hereby ratified and approved by the Court, and is

incorporated into and made a part hereof as though fully set

out herein. It is ORDERED by the Court that the parties

keep and obey the terms thereof, subject to penalty as for

contempt.

"….

"4. Neither party shall be required to pay child support

to the other party based on their exercise of joint physical

custody of the minor child. Based upon the income and

expenditures supplied by the parties in forms CS-41, [Child

Support Obligation Income Statement/Affidavit] and having

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considered the agreement of the parties, the Child Support

Guidelines as established by Rule 32 of the Alabama Rules

of Judicial Administration have not been followed and

applied due to the joint physical custody arrangement for the

child. The Court finds this to be fair and reasonable and said

deviation is hereby ratified and approved by this Court."

The parties' above-quoted "Settlement Agreement," which was

incorporated into the divorce judgment states, in pertinent part:

"7. The parties agree that they will share true joint

legal and true joint physical custody and control of the

parties' minor child, [O.L.S.]…The parties understand and

agree that all decisions related to education, religious

upbringing, non-emergency medical and dental treatment,

and extracurricular activities of the minor [child] should be

made jointly. However, in the event that the parties are

unable to reach an agreement regarding the education,

medical/dental, religious, and extracurricular needs of the

minor [child], the parties have agreed to divide decision

making authority as follows:

"Medical/Dental Mother/Plaintiff

"Education Father/Defendant

"Religious Mother/Plaintiff

"Extracurricular Father/Defendant

"Civic Mother/Plaintiff

"Cultural Father/Defendant

"Both parties understand and agree that the ability to

exercise this decision-making authority does not negate the

responsibility of the parties to communicate with one

another and attempt to reach a joint agreement regarding

these issues.

"8. The parties have agreed with respect to the minor

child's school that the minor shall attend school at Brookhill

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Elementary school, which is or will be located in the

Mother's school district from pre-school/Kindergarten

through Grade four (4). The parties have agreed that

beginning with the minor child's commencement the fifth

(5th) grade school year that the minor child shall attend

school in the father's school district, provided that the father

still resides in the school district he is currently residing in

at the time of this agreement.

"9. The parties shall exercise custodial periods with the

minor child as they can agree. However, if the parties cannot

agree, the parties agree that they shall utilize the following

schedule with respect to weekday/weekend custodial periods

with their minor child:

"The parties shall exercise rotating periods of custody

with the Mother/Plaintiff having Custody of the minor child

from Wednesday at 8:00 a.m. until Friday at 8:00 a.m. every

week. The Father/Defendant shall have custody of the minor

child from Monday at 8:00 a.m. until Wednesday at 8:00 a.m.

every week. The party whose custodial period is beginning

shall be responsible for picking up the minor child from the

other party or from school if school is in session at the start

of their custodial period. The parties agree that they shall

alternate weekends from Friday at 8:00 a.m. until Monday

at 8:00 a.m. each week. The parties agree that they shall

begin utilizing this schedule for the first weekend of April

2018 (April 6th-8th, 2018) and the first weekend shall be

afforded to the Father/Defendant.

"The parties agree that they will utilize the following

schedule for the purposes of Holidays and Special Occasions,

which shall take precedence and supersede the above

weekday/weekend custodial schedule:

"a. Parents are allowed to vary from the

Court-ordered custody schedule by mutual

agreement…However, if parents are not both in

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agreement, the following custody schedule is to be

followed. Failure to do so can subject a party to

sanctions for contempt of Court.

"b. Unless as otherwise set out herein, all

visitation will be accomplished by the mother

picking up the child at the residence of the father

or school if visitation begins at the end of the

school day, or such other reasonable place as the

parties may mutually agree at the times provided

for each period of visitation.

"….

"10. The parties have agreed that in consideration of

their joint custodial agreement that neither party shall have

a Child Support obligation to the other….

"The parties agree that the Father/Defendant shall be

responsible for the payment of all expenses related to

extracurricular and uncovered medical/dental for the minor

child each year up the sum of THREE THOUSAND AND

00/100 ($3,000.00) DOLLARS, per calendar year. In the

event that the extracurricular and uncovered medical/dental

expenses for the minor child exceed THREE THOUSAND

AND 00/100 ($3,000.00) DOLLARS, per calendar year, the

parties agree that they shall evenly divide (50%-50%) all

extracurricular and uncovered medical/dental expenses for

the minor child in excess of this THREE THOUSAND AND

00/100 ($3,000.00) DOLLARS, per calendar year. The parties

further agree that they shall each pay and be responsible for

one-half (1/2) of any and all school, related expenses for the

parties' minor child, which include but are not limited to

expense which are required by the school, or relate to field

trips or other non-athletic/extracurricular school related

functions for the minor child (e.g. book fairs).

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"a. The party who incurs the expense shall

present to the other party bills and/or receipts for

payment or reimbursement within fifteen (15)

days from the receipt of it. The party who did not

incur the expense shall pay or reimburse the

party who incurred the expense for his/her share

of said expenses within fifteen (15) days from the

receipt of it.

"11. The parties agree to provide for their minor [child]

in accordance with the 'Standard Parenting Clauses'

attached hereto as Exhibit 'A'.

"12. The minor child is covered on the Defendant's

private health insurance. The parties agree that the Plaintiff

shall continue to cover the minor child on his health

insurance. The Defendant shall provide the Plaintiff with a

copy of the policy, schedules of benefits, identification cards

and claim forms to assist in the prompt payment of covered

charges by the insurance company.

"b. The parties agree that that the

Father/Defendant in conjunction with his

agreement as stated in Paragraph 10,

hereinabove, to be responsible for the payment of

extracurricular expenses for the parties' minor

child, shall be responsible for the payment of any

and all uninsured/uncovered medical, dental,

pharmaceutical, orthodontic, ophthalmic and

optometric expenses and any reasonable and

necessary, therapeutic or rehabilitative expenses

incurred for the benefit of the minor child up to

the sum of THREE THOUSAND AND 00/100

($3,000.00) DOLLARS annually and per calendar

year. In the event that the amount of

uninsured/uncovered medical, dental,

pharmaceutical, orthodontic, ophthalmic and

optometric expenses and any reasonable and

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necessary, therapeutic or rehabilitative expenses

incurred for the benefit of the minor child and the

extracurricular expense for the minor child once

the expenses are in excess of this THREE

THOUSAND AND 00/100 ($3,000.00) DOLLARS

annual amount to be paid by the [mother].

"c. The party who incurs the expense shall

present to the other party bills and/or receipts for

payment or reimbursement of uninsured medical

and/or dental bills within fifteen (15) days from

the receipt of it. The party who did not incur the

expense shall pay or reimburse the party who

incurred the expense for his/her share of said

expenses within fifteen (15) days from the receipt

of it. In the event that either party shall receive

reimbursement for payment directly from the

health insurance carrier, that party shall pay the

other party (50%) of that reimbursement within

ten (10) days.

"….

"30. The parties hereto are ordered and

directed as follows:

"(a) That each shall remain from any and all

words, conduct, deeds, or activity which are

intended or calculated to interfere with, abuse,

embarrass or intimidate the other;

"(b) That each will respect the privacy of the

other from and after the date hereof; and

"(c) That each will refrain from any activity,

words, or deeds intended or calculated to

interfere with the employment of the other, or

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calculated or intended to interfere with the family

or social life of the other."

(Capitalization in original.)

The above-referenced "Standard Parenting Clauses," which were

also incorporated into the parties' divorce judgment, read, in pertinent

part:

"(1) For so long as the children reside in Madison

County, Alabama, all visitation will be accomplished by the

non-custodial parent picking up and redelivering the minor

children to the residence of the custodial parent, or such

other reasonable place as that parent may indicate, at the

times provided for each period of visitation.

"(2) Both parties shall have reasonable telephone

access to the minor children while they are in the physical

control of the other parent. The minor children shall also

have reasonable telephone access to both parties at

reasonable times."

On June 22, 2020, the mother filed a verified petition seeking to

modify custody of the child and to hold the father in contempt of court.

In her petition, the mother asserted that the father had failed to comply

with various provisions that had been incorporated into the parties'

divorce judgment and that there had been a material change in

circumstances, making it in the best interest of the child for her to have

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sole physical custody of the child. The father thereafter filed his

response to the mother's petition, denying the mother's allegations.

Shortly thereafter, the father sought and received permission from

the trial court to file a counterclaim against the mother. In his

counterclaim, the father requested, among other things, that the

mother be held in contempt of court and that the parties be equally

responsible for the child's extracurricular-activity expenses. After a

trial, the trial court entered its final judgment, which states, in

pertinent part:

"1. The parties shall continue to exercise joint legal

custody of their minor child, [O.L.S.], whose date of birth is

November 17, 2015. The mother has proven to the Court's

satisfaction that material changes affecting the child's

welfare since the entry of the original order warrant a

change in custody to promote the best interests of the child.

As such, the mother is hereby awarded primary physical

custody of the parties' minor child.

"2. In the event the mother and the father are unable

to agree on any aspect of the academic, religious, civic,

cultural, athletic or medical and dental activities of the

child, the mother is designated as having the primary

authority and responsibility regarding involvement of the

minor child in said activity. As such, Paragraph No. 8 of the

[Settlement Agreement] entered into by the parties and

ratified and adopted by the Final Decree of Divorce dated

March 23, 2018,… is hereby vacated.

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"The designation of a parent to possess primary

authority and responsibility regarding the involvement of

the minor child in certain activities is not intended by this

Court to negate the responsibility of the parties to notify and

communicate with each other in the exercise of joint legal

custody of their minor child.

"3. Paragraph No. 9 of the [Settlement Agreement]

entered into by the parties and ratified and adopted by the

Final Decree of Divorce dated March 23, 2018,… is hereby

vacated. As such, commencing on April 7, 2021, the father

shall exercise visitation with the parties' minor child as

follows:

"A. Every Wednesday from 3:00 p.m. until 8:00

a.m. on Thursday morning. Transportation for

this period of visitation shall be as agreed upon

by the parties. In the event the parties are unable

to agree, the father shall pick up the minor child

on Wednesday afternoon and shall return the

minor child on Thursday morning.

"B. Every other Wednesday from 3:00 p.m. until

6:00 p.m. on the Sunday following, beginning on

Wednesday, April 14, 2021. Transportation for

this period of visitation shall be as agreed upon

by the parties. In the event the parties are unable

to agree, the father shall pick up the minor child

on Wednesday afternoon, and the mother shall

pick up the minor child on Sunday evening.

"Further, the parties shall exercise holiday and special

occasion periods of visitation with the child. …

"….

"5. The father shall pay to the mother the sum of

$985.00 per month for the support and maintenance of the

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parties' minor child … As such, Paragraph No. 10 of the

[Settlement Agreement] entered into by the parties and

ratified and adopted by the Final Decree of Divorce dated

March 23, 2018,… is hereby vacated.

"Based upon the income and expenditures supplied by

the parties in forms CS-41, [Child Support Obligation

Income Statement/Affidavit] the Child Support Guidelines

as established by Rule 32 of the Alabama Rules of Judicial

Administration have not been followed and applied based on

the custody schedule, the parties' respective incomes and the

needs of the minor child. The Court finds this to be fair and

reasonable and said deviation is hereby ratified and

approved by this Court.

"….

"6. The mother shall be responsible for and shall pay

30% and the father shall be responsible and shall pay 70% of

all extracurricular, athletic, and school related expenses

incurred on behalf of the minor child of the parties.

"In the event either party advances extracurricular,

athletic and/or school related expenses as described

hereinabove on behalf of the minor child, then the party

advancing such costs shall be entitled to reimbursement for

the party's contribution. …

"….

"8. The evidence presented proves that the father

unilaterally changed the location for pick up of the minor

child on more than one occasion in violation of Paragraph

No. 9(b) of the [Settlement Agreement] entered into by the

parties and ratified and adopted by the Final Decree of

Divorce dated March 23, 2018. Given the mother's request

for a finding of only one (1) act, the Court finds the father

guilty of one (1) act of contempt of court for his willful

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violation of the Order of this Court, and that as punishment

the father is sentenced to five (5) days in the Huntsville-

Madison County Metro Jail. Said sentence is hereby

suspended, and the father is placed on unsupervised

probation for a period of two (2) years.

"9. The evidence presented proves that the father failed

to provide the mother with a copy of the health insurance

policy and schedule benefits. …

"10. The evidence presented proves that the father sent

harassing communications to the mother on several

occasions in violation of Paragraph No. 30 of the [Settlement

Agreement] entered into by the parties and ratified and

adopted by the Final Decree of Divorce dated March 23,

2018. The Court finds the father guilty of one (1) act of

contempt of court for his willful violation of the Order of this

Court, and that as a punishment the father is sentenced to

five (5) days in the Huntsville-Madison County Metro Jail.

Said sentence is hereby suspended, and the father is placed

on unsupervised probation for a period of two (2) years.

"11. The evidence presented proves that the father

failed to provide the mother with reasonable telephone

access to the minor child during March 2019 in violation of

Paragraph No. (2) of the Standard Parenting Clauses

incorporated into and made a part of the Final Decree of

Divorce dated March 23, 2018. The Court finds the father

guilty of one (1) act of contempt of court for his willful

violation of the Order of this Court, and that as a

punishment the father is sentenced to five (5) days in the

Huntsville-Madison County Metro Jail. Said sentence is

hereby suspended, and the father is placed on unsupervised

probation for a period of two (2) years.

"12. The evidence presented proves that the father

failed to notify the mother of the minor child's medical

appointment. …"

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The final judgment also included what the court referred to as

"Parenting Clauses," which, among other things, addressed reasonable

telephone access to the child, alienation of the child, conflict between

the parents, extracurricular activities, visitation, medical/dental

appointments, relocation, and the overall well-being of the child.

The father then filed a timely postjudgment motion pursuant to

Rule 59(e), Ala. R. Civ. P., asking the trial court to alter, amend, or

vacate the judgment. On July 8, 2021, the parties agreed to extend the

time for ruling on the postjudgment motion. See Rule 59.1, Ala. R. Civ.

P. A hearing on the postjudgment motion was initially scheduled for

August 20, 2021; however, the mother requested a continuance due to

her attorney having a scheduling conflict. The trial court granted the

continuance and set the hearing for September 8, 2021. On September

6, 2021, the mother filed her response to the father's postjudgment

motion. The following day, the father filed a motion to strike the

mother's response to his postjudgment motion.

After a hearing on the father's postjudgment motion, the trial

court entered an amended final judgment which stated, in pertinent

part:

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"A. Paragraph No. 1 of the Final Order of Modification dated

April 6, 2021, is hereby vacated and rescinded, and the

following shall constitute Paragraph No. 1:

"1. The parties shall exercise joint legal and joint

physical custody of their minor child, [O.L.S.]

whose date of birth is November 17, 2015. The

father shall exercise periods of physical custody

and/or visitation with the minor child pursuant to

Paragraph No. 3 herein below.

"B. Paragraph No. 2 of the Final Order of Modification is

hereby vacated and rescinded, and the following shall

constitute Paragraph No. 2:

"2. To comply with the implementation provisions

of § 30-3-153, Code of Alabama (1975) and

consistent with the holding in Ford v. Ford, 3 So.

3d 872 (Ala. Civ. App. 2008), in the event the

mother and the father are unable to agree on any

aspect of the academic, religious, civic, cultural,

athletic or medical and dental activities or needs

of their minor child, the following parent is

designated as having the primary authority and

responsibility regarding involvement in said

activity:

"Medical/Dental Mother

"Religious Mother

"Civic Mother

"Cultural Father

"Extracurricular/Athletic Father

"Academic Mother

"The designation of a parent to possess primary

authority and responsibility regarding the

involvement of the minor child in certain

activities is not intended by this Court to negate

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the responsibility of the parties to notify and

communicate with each other in the exercise of

joint legal custody of their minor child.

"Paragraph No. 8 of the [Settlement Agreement]

entered into by the parties and ratified and

adopted by the Final Decree of Divorce dated

March 23, 2018,…is hereby vacated and

rescinded. Further, the mother's residence shall

be utilized to determine the child's school district.

"….

"D. Regarding child support (Paragraph No. 5 of the Final

Order of Modification dated April 6, 2021), the Court

informed the parties and counsel during oral arguments that

the child support forms required by Rule 32 of the Alabama

Rules of Judicial Administration, which were prepared by

this Court on April 2, 2021, had inadvertently been secured

with the exhibits. Copies of the forms required by Rule 32

have now been made a part of the record in this cause.

"The Court further explained that child support had been

calculated several ways before the Final Order of

Modification dated April 6, 2021, was issued:

"i. Using the information provided by the mother

on her CS-41 with minimum wage as the

mother's income and work-related child-care costs

at $820.00 per month (per the Child Support

Guideline the mother's obligation would be

$262.91 and the father's obligation would be

$1,590.09);

"ii. Using the mother's income at minimum wage

as provided on her CS-41 and adjusting the work-

related child-care costs downward to $5576.00 per

month utilizing the Alabama Department of

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Human Resources Child Care Subsidy Program

Provider Rate Chart (per the Child Support

Guidelines the father's obligation would be

$1,378.84);

"iii. Using the information provided by the

mother regarding her income at $23.00 per hour

and work-related child-care costs at $820.00 per

month (per the Child Support Guidelines the

father's obligation would be $1,317.94);

"iv. Using the information provided by the mother

regarding her income at $23.00 per hour and

adjusting the work-related child-care costs

downward to $576.00 per month utilizing the

Alabama Department of Human Resources Child

Care Subsidy Program Provider Rate Chart (per

the Child Support Guidelines the father's

obligation would be $1,154.37); and,

"v. Using the information provided by the mother

regarding her income at $23.00 per hour and

omitting the work-related child-care costs (per

the Child Support Guidelines the father's

obligation would be $768.24).

"Taking all of the facts and evidence in this case into

consideration, including the income and expenses of the

parties, along with the various calculations with four (4) of

the five (5) placing the father's child support obligation

above that which was ordered, this Court finds that a

deviation in the father's favor was merited. As such, the

father's child support obligation shall remain at $985.00 per

month consistent with Paragraph No. 5 of the Final Order of

Modification dated April 6, 2021.

"E. Paragraphs No. 6 and Paragraph No. 7 of the Final

Order of Modification dated April 6, 2021, and only the first

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(1st) paragraph of Paragraph No. 10 of the [Settlement

Agreement] entered into by the parties and ratified and

adopted by the Final Decree of Divorce dated March 23,

2018,…are hereby vacated and rescinded.

"F. This Court shall now address Paragraphs No. 8 through

12 of the Final Order of Modification dated April 6, 2021,

regarding the findings of Contempt of Court. After over

twenty-five (25) years on the bench and with the knowledge

that some specificity is required regarding these claims, the

Court is concerned that at some point the parties' minor

child may review this Order and that specific statements

from a parent would serve no purpose other than to

condemn, confuse or embarrass. As such, suffice it to say

that some of the father's communications were more than

inappropriate, some of the exhibits contain profane content,

and the late night telephone calls were unwanted. Therefore,

in order to clarify the basis for this Court's decision, exhibits

utilized to form the basis of this Court's opinions that were

made part of the record in this cause shall be referenced by

number.

"Paragraph No. 8: The evidence presented proves that the

father willfully and intentionally changed the pick-up

location from his home to his place of business (Polaris) on

April 10, 2019. On the night before the exchange was to

occur the following morning, the mother informed the father

she had plans (a date). The mother did not hear from the

father again until 6:23 a.m. by text message at which time

he informed her if she could not be at his house between 7:00

and 7:30 a.m., she would have to pick the child up at Polaris

at 8:00 a.m. The father then went on to inquire about her

night. In isolation the father's conduct perhaps appears

innocent, but when viewed in the context of the distance

between the parties' homes and the time frames referenced

along with the father's overall conduct regarding the

mother's personal life, this act was indeed a willful and

intentional violation of Paragraph No. 9(b) of the

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[Settlement Agreement] entered into by the parties and

ratified and adopted by the Final Decree of Divorce dated

March 23, 2018….

"Paragraph No. 9: While the father's duty pursuant to

Paragraph No. 12 of the [Settlement Agreement] entered

into by the parties and ratified and adopted by the Final

Decree of Divorce dated March 23, 2018, to provide the

mother with a copy of the policy…the mother did state

during her testimony, 'I don't believe it was intentional…' As

such, Paragraph No. 9 of the Final Order of Modification

dated April 6, 2021, is hereby vacated and rescinded.

"Paragraph No. 10: The parties acknowledge that their

divorce was final on March 23, 2018, and that from

September to November 2018 they engaged in a sexual

relationship. According to the testimony presented, once the

relationship ended in November, the father began harassing

the mother with late night telephone calls and harassing,

threatening, profane and unrequested inappropriate text

and email communications. Said conduct continued for a

period of time until the father received a second letter on

July 11, 2019 from the mother's attorney to cease violating

Paragraph No. 30 of the [Settlement Agreement] entered

into by the parties and ratified and adopted by the Final

Decree of Divorce dated March 23, 2018, which orders and

directs the parties to a) refrain from any and all words,

conduct, deeds, or activity which are intended or calculated

to interfere with, abuse, embarrass or intimidate the other;

b) to respect the privacy of the other from and after the date

hereof; and c) refrain from any activity, words, or deeds

intended or calculated to interfere with the employment of

the other, or calculated or intended to interfere with the

family or social life of the other. After review of the exhibits

and testimony, the Court finds that the father willfully and

intentionally violated the terms and provisions set forth in

Paragraph No. 30 of said [Settlement Agreement]. (See

Plaintiff's Exhibit No. 11, Mother 'Can you just leave me

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alone with that kind of thing? ...'; Plaintiff's Exhibit No. 12;

Plaintiff's Exhibit No. 15, Page 2; and Plaintiff's Exhibit No.

16.)

"Paragraph No. 11: Between March 20, 2020 and April 8,

2020, the mother's communication with the minor child was

willfully and intentionally 'cut off' by the father. The mother

was not allowed to see the child or talk to him, even though

she requested such opportunities. After review of the

exhibits and testimony, the Court finds that the father

willfully and intentionally violated Paragraph No. 2 of the

Standard Parenting Clauses attached as Exhibit 'A' to the

[Settlement Agreement] entered into by the parties and

ratified and adopted by the Final Decree of Divorce dated

March 23, 2018, which states, 'Both parties shall have

reasonable telephone access to the minor children while they

are in the physical control of the other parent. The minor

children shall have reasonable telephone access to both

parties at reasonable times.' After review of the exhibits and

testimony, the Court finds that the father willfully and

intentionally violated the provisions of Paragraph No. 2 of

said Standard Parenting Clauses. (See Plaintiff's Exhibit No.

5 and Plaintiff's Exhibit No. 6, along with the testimony

related to this issue.)

"Paragraph No. 12: To complete her CRNA requirements,

the mother went to Texas (TCU) for the fall 2019 semester.

She asked the father for permission to take the child to

Texas, and as is his right, the father said no. The mother

then offered the father her custodial time with the minor

child from August to December of that year, but the father

stated that he wasn’t going to do favors for an ex-wife. (See

Pages 60-298 of the transcript.) As such, the mother's sister

exercised the mother's periods of custody with the child

while the mother was in Texas. Pursuant to Paragraph No.

17 of the Standard Parenting Clauses attached as Exhibit 'A'

to the [Settlement Agreement] entered into by the parties

and ratified and adopted by the Final Decree of Divorce

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dated March 23, 2018, 'both parents shall have the

opportunity to attend a child's medical and/or dental

appointments …' and 'a parent scheduling any such

appointment…should give the same notice to the other

parent as soon as received.' Although the mother had never

missed a medical appointment for the child, and it was the

mother's request for the father to schedule an appointment

for the child's four (4) year wellness check-up, there is

nothing in the record to show that the father willfully and

intentionally violated the provisions of the afore-referenced

Paragraph No. 17. As such, Paragraph No. 12 of the Final

Order of Modification dated April 6, 2021, is hereby vacated

and rescinded.

"G. All other claims for relief not specifically addressed

herein are hereby denied.

"H. Any and all provisions of the Final Order of Modification

dated April 6, 2021, not specifically modified herein shall

remain in full force and effect."

Both parties timely filed a notice of appeal from the trial court's

amended final judgment entered on October 14, 2021.

Facts

The testimony and documentary evidence from the trial conducted

on January 25, 2021, and the postjudgment-motion hearing conducted

on September 8, 2021, revealed the following pertinent facts. Following

the parties' divorce, the parties worked out a custody arrangement in

which the parties would alternate custody of the child on a weekly

basis. The parties had agreed that the mother would exercise final

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decision-making authority over all medical, religious, and civic-related

decisions regarding the child, and the father would have final decision-

making authority over all educational and extracurricular activity

decisions regarding the child. Concerning the financial support of the

child, there was no child-support obligation for either party, but the

father was required to pay all expenses related to extracurricular

activities and uncovered medical/dental expenses up to $3,000 each

year for the child.

After the parties divorced, the mother continued to reside with the

father. Approximately two months after the divorce, the father began

sending the mother sexually-explicit text messages, and, on at least one

occasion, the parties had traveled together and had stayed in the same

hotel room. Both parties agree that they began a sexual relationship in

September 2018. The mother testified that the sexual relationship

between the parties had ended in November 2018, while the father

testified that the sexual relationship had continued until February

2019. The mother asserted that the father had continued to send her

sexually-explicit text messages even though their sexual relationship

had ended and that she did not welcome that type of communication.

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The father declared that he had sent sexually-explicit text messages to

the mother only between May 2018, and February 2019, which, he says,

was during the time he had had a sexual relationship with the mother.

The father stated that the mother sent him a sexually-explicit text

messages, i.e., a picture of the mother in a yoga pose. He further stated

that the mother waited months before letting him know that she was

uncomfortable with his text messages. As soon the mother asked him to

stop sending her sexually-explicit text messages, the father asserted

that he had stopped. The mother, however, testified that the father did

not cease sending her sexually-explicit text messages until after her

attorney sent him a letter asking him to cease sending those types of

messages to the mother.

The mother testified that she was afraid to upset the father in any

way because he would retaliate against her or change the custody

arrangement that they had been exercising. For instance, the mother

testified that in March 2019, during one of the weeks that the father

had had custody of the child, the father denied the mother telephone

access to the child. Thus, the mother was unable to communicate with

the child for the entire week that the child was in the custody of the

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father. Another example of the father retaliating against the mother,

according to the mother, occurred on April 10, 2019. On April 9, 2019,

the mother had informed the father that she would be unavailable that

night because of a romantic engagement. The mother did not hear from

the father until the following morning at 6:23 a.m., when the father

sent her a text message informing her that if she could not pick up the

child that day between 7:00 and 7:30 a.m., she would have to pick up

the child at his place of employment at 8:00 a.m. After the last-minute

change, the father went on to inquire about her night.

From August 2019 to December 2019, the mother temporarily

relocated to Texas to complete a nursing extension program in order to

become a nurse anesthetist. The mother asked the father whether he

would be willing to take sole physical custody of the child during the

time that she had to be in Texas. The father refused. Thus, the mother's

sister took the place of the mother, resulting in the father and the

mother's sister alternating custody of the child on a weekly basis. In

December 2019, the mother returned to Alabama and continued her

training at a hospital in Huntsville. At the time of trial, the mother was

not employed and would be depending on funds from student loans until

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December 2021, which was when she would graduate and be able to

gain employment.

While the mother was in Texas, she met and began dating a man,

J.P. When the mother returned to Alabama, J.P. would visit the

mother, and he would either stay overnight with the mother's sister or

he would stay overnight in his car when the child was in the mother's

custody. In March 2020, the father withheld the child from the mother

because he suspected that J.P. had physically hurt the child. On that

occasion, the father did not allow the child to return to the custody of

the mother, and he did not allow the mother to communicate with the

child by any means, including telephone calls.

At the time of trial, the mother was in a serious relationship with

a physician from Huntsville. The mother testified that she had been

contemplating moving to Huntsville and expressed her desire to enroll

the child in a private school in Huntsville. At the time of trial, the

father lived in Madison County and worked for Polaris Industries with

a monthly salary of $8,108 per month. Although the father stated that

he preferred to enroll the child in a public school in Madison County, he

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admitted that it would not be impossible for him to accommodate his

schedule and route to take the child to school in Huntsville.

Standard

"When a trial court receives ore tenus evidence, its judgment

based on that evidence is entitled to a presumption of

correctness on appeal and will not be reversed absent a

showing that the trial court exceeded its discretion or that

the judgment is so unsupported by the evidence as to be

plainly and palpably wrong. Scholl v. Parsons, 655 So. 2d

1060 (Ala. Civ. App. 1995). 'Th[is] presumption of

correctness is based in part on the trial court's unique ability

to observe the parties and the witnesses and to evaluate

their credibility and demeanor.' Littleton v. Littleton, 741

So. 2d 1083, 1085 (Ala. Civ. App. 1999). The trial court's

ability to observe witnesses is particularly important in

child-custody cases. Ex parte Fann, 810 So. 2d 631, 633 (Ala.

2001)(quoting Williams v. Williams, 402 So. 2d 1029, 1032

(Ala. Civ. App. 1981))(' "In child custody cases especially, the

perception of an attentive trial judge is of great

importance." '). This court is not permitted to reweigh

evidence on appeal and substitute its judgment for that of

the trial court. Somers v. McCoy, 777 So. 2d 141 (Ala. Civ.

App. 2000)."

Mullis v. Mullis, 994 So. 2d 934, 936-37 (Ala. Civ. App. 2007). However,

the ore tenus standard of review does not apply to a trial court's

conclusions as to legal issues. R.K. v. R.J., 843 So. 2d 774, 776 (Ala. Civ.

App. 2002). Issues of law are reviewed de novo. Barber v. Moore, 897 So.

2d 1150, 1153 (Ala. Civ. App. 2004).

Analysis

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On appeal, the father makes three arguments: (1) that the trial

court erred in calculating his child-support obligation; (2) that the trial

court erred in ordering him to pay 70% of the child's extracurricular-

activity expenses and school-related expenses in addition to paying the

full amount of his child-support obligation; and (3) that the trial court

erroneously held him in contempt of court for three counts. On cross-

appeal, the mother argues that the trial court erred in the amended

final judgment by changing her award of sole physical custody from the

final judgment to an award of joint physical custody.

I. Child-Support Award

The father argues that the trial court incorrectly calculated his

child-support obligation before it decided to deviate from the amount

calculated using the schedule of basic child-support obligations.

Specifically, the father asserts that the trial court erroneously included

monthly child-care costs that were incurred by the mother while she

was completing a nursing extension program in determining his child-

support obligation. We agree.

The calculation of a parent's child-support obligation is governed

by the application of Rule 32, Ala. R. Jud. Admin. In Edwards v.

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Edwards, [Ms. CL-2022-0584, Dec. 2, 2022] __ So. 3d __, __ (Ala. Civ.

App. 2022), this court has explained:

"Rule 32(C)(1), Ala. R. Jud. Admin., requires a trial court to

first determine the basic child-support obligation owed for

the benefit of the children by ascertaining the combined

monthly adjusted gross income of the parents and applying

the schedule of basic child-support obligations contained in

the appendix to the rule. Rule 32(C)(2), Ala. R. Jud. Admin.,

then requires the trial court to add in work-related child-

care costs and health-insurance costs to ascertain the total

child-support obligation, which is then multiplied by the

percentage of each parent's share of the combined adjusted

gross income to determine the obligor's parent's child-

support obligation. If the obligor parent is responsible for

paying the health-insurance costs for the children, then that

amount is subtracted from that parent's child-support

obligation to determine the obligor parent's monthly child-

support obligation. Rule 32(C)(3), Ala. R. Jud. Admin.,

requires the court to round up the resulting figure to the

nearest whole dollar amount."

"The trial court may, within its discretion, deviate from the Child

Support Guidelines; however, if it does so, it must enter a written

finding, supported by the evidence, that the application of the

guidelines would be unjust or inequitable." Robinson v. Robinson, 795

So. 2d 729, 734 (Ala. Civ. App. 2001).

The amended final judgment states, in pertinent part, that the

parties would share joint legal and joint physical custody of the child;

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that the father's child-support obligation was $985 per month; and that

the father was held in contempt of court on three counts.

"Although the trial court expressed that it was deviating from the

[Rule 32, Ala. R. Jud. Admin.,] child-support guidelines, the trial court

has a mandatory duty to first correctly determine the basic monthly

child-support obligation of [the father] in order to ascertain the extent

of its deviation." Sutchaleo v. Sutchaleo, 228 So. 3d 475, 479 (Ala. Civ.

App. 2017).

The father cites C.C. v. E.W., 207 So. 3d 67 (Ala. Civ. App. 2016),

for the proposition that child-care expenses related to educational

pursuits are not included in the definition of child-care costs set forth in

Rule 32(B)(8). In C.C. v. E.W., this court analyzed the statutes of

neighboring jurisdictions and stated:

"Rule 32 does not expressly refer to child-care expenses

for education-related pursuits, and it does clearly define

'child-care costs.' Rule 32(B)(8), in pertinent part, defines

'child-care costs' as costs 'incurred on behalf of the children

because of employment or job search of either parent.'

(Emphasis added.) Certainly the pursuit of a college

education can be related to employment or a job search;

however, to support an interpretation in favor of the mother,

we would have to conclude that education-related child-care

costs are incurred 'because of' employment or a job search

and we would be forced to turn a blind eye to the obvious

lack of inclusion in the definition of 'child-care costs' of

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education-related child-care costs, which are included in the

definitions of 'child-care costs' or 'childcare expenses' in the

statutes of our neighboring jurisdictions."

207 So. 3d 67, 71 (Ala. Civ. App. 2016). In C.C. v. E.W., this court

reversed the portion of the trial court's judgment awarding the mother a

prorated amount of work-related child-care expenses, instructed the

juvenile court to include in its calculation only the costs of work-related

child care, and stated:

"Nothing in this opinion is intended to imply that the

juvenile court could not then deviate from the child-support

guidelines upon its inclusion of a 'written finding on the

record indicating that the application of the guidelines would

be unjust or inappropriate,' Rule 32(A), [Ala. R. Jud.

Admin.,] based upon 'facts or circumstances that the court

finds contribute to the best interest of the child or children

for whom child support is being determined.' Rule

32(A)(1)(g)[, Ala. R. Jud. Admin]."

207 So. 3d at 71. After C.C. v. E.W., was issued in 2016, Rule 32 was

amended in 2019 to allow for a deviation from the guidelines when a

parent incurs child-care costs that are associated with a parent's

training or education necessary to obtain a job. Rule 32(A)(1), Ala. R.

Jud. Admin., provides, in pertinent part:

"(1) Reasons for deviating from the guidelines. Reasons for

deviating from the guidelines may include, but are not

limited to, the following:

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"….

"(g) A parent incurs child-care costs associated

with the parent's training or education necessary

to obtain a job or to enhance that parent's

earning potential, not to exceed a reasonable time

as determined by the court. To justify deviating

from the guidelines on this basis, the parent must

prove by a preponderance of the evidence that the

job training or education will benefit the child or

children being supported, and child-care costs

associated with such training or education shall

not exceed the amount required to provide care

from a licensed source for the child or children,

based on a schedule of guidelines developed by

the Alabama Department of Human Resources."

(Emphasis added.)

In this case, the trial court computed the father's basic child-

support obligation in five different ways. Four out of the five

calculations included child-care costs incurred by the mother while she

was a full-time student. The fifth calculation, which did not include any

child-care costs, indicated the father's child-support obligation to be

$768. In its amended final judgment, the trial court ordered the father

to pay the mother $985 per month in child support and explained:

"Taking all of the facts and evidence in this case into

consideration, including the income and expenses of the

parties, along with various calculations with four (4) of the

five (5) placing the father's child-support above that which

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was ordered, this Court finds that a deviation in the father's

favor was merited."

Although the trial court may, in its discretion deviate from the

guidelines when a parent incurs child-care costs associated with

training or education, the trial court must first determine the basic

child-support obligation, which does not include child-care costs

associated with a parent's training or education. After calculating the

basic child support obligation, the trial court may, it is discretion,

decide to deviate from the guidelines for reasons such as child-care costs

incurred and associated with a parent's training or education. Rule

32(A)(1)(g), Ala. R. Jud. Admin. In four of its five calculations of the

basic child-support calculation, the trial court erroneously awarded the

mother work-related child-care expenses, not school-related expenses.

At the time of the child-support calculations, the mother was not

employed; she was a full-time student. Accordingly, we must reverse the

final judgment to the extent that it improperly calculated the father's

basic child-support obligation, and we remand the cause for the trial

court to determine the father's child-support obligation after properly

applying the formula to calculate his basic child-support obligation

under Rule 32(C)(1).

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Because the father contends that the custody arrangement

between the parties should be considered in determining his child-

support obligation for the first time on appeal, we cannot consider this

argument. See Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala.

1992) ("[An appellate court] cannot consider arguments raised for the

first time on appeal; rather, [an appellate court's] review is restricted to

the evidence and arguments considered by the trial court.").

II. Extracurricular-Activity Expenses and School-Related

Expenses

The father next argues that the trial court's judgment requiring

him to pay 70% of the child's extracurricular-activity expenses and

school-related expenses, in addition to paying the full amount of his

child-support obligation, should be reversed because the trial court

failed to state its reasons for making additional awards and the

additional awards were not supported by the evidence.

Rule 32(A), Ala. R. Jud. Admin., provides that

"[t]here shall be a rebuttable presumption, in any judicial or

administrative proceeding for the establishment or

modification of child support, that the amount of the order

that would result from that the application of these

guidelines is the correct amount of child support to be

ordered. A written finding on the record indicating that the

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application of the guidelines would be unjust or

inappropriate shall be sufficient to rebut the presumption if

the finding is based upon:

"(i) A fair, written agreement between the

parties establishing a different amount and

stating the reasons therefor; or

"(ii) A determination by the court, based

upon evidence presented in court and stating the

reasons therefor, that application of the

guidelines would be manifestly unjust or

inequitable."

"[A]lthough the amount of child support established by the guidelines

creates a presumption as to the correct amount of child support to be

awarded, that presumption is rebuttable, and, under certain

circumstances, a trial court has the discretion to award child support

outside the guidelines." A.B. v. J.B., 40 So. 3d 723, 733 (Ala. Civ. App.

2009). Furthermore, Rule 32(C)(4), Ala. R. Jud. Admin., provides:

"In addition to the recommended child-support order, the

court may order additional amounts for extraordinary

medical, dental, and education expenses if (i) the parties

have in writing agreed to these amounts or (ii) the court,

upon reviewing the evidence, determines that these amounts

are in the best interest of the children and states its reasons

for ordering these additional amounts."

In A.B. v. J.B., 40 So. 3d 723 (Ala. Civ. App. 2009), this court

reversed the portion of the trial court's judgment requiring a mother to

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pay one-half of extracurricular-activity expenses in addition to the full

amount of child support recommended by the child-support guidelines.

This court determined in A.B. that the record, in that case, revealed

that no evidence was presented to rebut the presumption created by the

guidelines and that the trial court's final judgment failed to indicate

that application of the guidelines would be manifestly unjust or

inequitable.

Here, it is undisputed that the father encouraged the child's

participation in extracurricular activities, such as participating in

swimming lessons and sports activities. However, there was no evidence

presented at trial about school-related expenses because the child was

not in school at the time of trial and because the mother testified at

trial that if the child were to attend a private school in the future that

she would be paying for the child's tuition. Additionally, although the

parties' Settlement Agreement, which was incorporated into the divorce

judgment, stated that the parties agreed that the father would be

responsible for the payment of all expenses related to extracurricular

activities and uncovered medical/dental services for the child each year,

up to the sum of $3,000 each year, the parties had not agreed for the

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father to be responsible for 70% of the extracurricular-activity expenses

and school-related expenses. Because the trial court failed to state its

reasons in its final judgment or in its amended final judgment for

making these additional awards and the parties did not have any

subsequent agreement requiring the father to pay that amount, we

must reverse the portion of the trial court's judgment that requires the

father to pay 70% of the child's extracurricular-activity expenses and

school-related expenses. See A.B. v. J.B., 40 So. 3d 723, 733 (Ala. Civ.

App. 2009) (reversing a judgment insofar as it required a parent to pay

half of the child's expenses for extracurricular activities because, among

other reasons, "[t]he final judgment … failed to include the language

necessary to support an award under Rule 32(C)(4)[, Ala. R. Jud.

Admin.]").

III. Contempt of Court

On appeal, the father argues that the trial court erred in holding

him in criminal contempt for the following three counts: (1) unilaterally

changing the pick-up location of the child; (2) sending harassing

communications to the mother on several occasions; (3) and failing to

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provide the mother with reasonable telephone access to the child during

March 2019.

"The issue whether to hold a party in contempt is solely

within the discretion of the trial court, and a trial court's

contempt determination will not be reversed on appeal

absent a showing that the trial court acted outside its

discretion or that its judgment is not supported by the

evidence. Brown v. Brown, 960 So. 2d 712, 716 (Ala. Civ.

App. 2006)."

Poh v. Poh, 64 So. 3d 49, 61 (Ala. Civ. App. 2010).

In this case, the trial court held the father in contempt for

violating three provisions of the Settlement Agreement that had been

incorporated into the parties' divorce judgment. The trial court did not

specify in its final judgment dated April 6, 2021, or in its amended final

judgment, dated October 14, 2021, the type of contempt in which it

found the father. Thus, before we address whether sufficient evidence

supported holding the father in criminal contempt, we must first

address whether the trial court held the father in criminal or civil

contempt.

Rule 70A, Ala. R. Civ. P., governs contempt proceedings. Rule

70A(a)(2)(C), Ala. R. Civ. P., specifies that "criminal contempt" is either:

"(i) Misconduct of any person that obstructs the

administration of justice and that is committed either in the

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court's presence or so near thereto as to interrupt, disturb, or

hinder its proceedings, or

"(ii) Willful disobedience or resistance of any person to

a court's lawful writ, subpoena, process, order, rule, or

command, where the dominant purpose of the finding of

contempt is to punish the contemnor."

That rule further explains that "civil contempt" is a "willful,

continuing failure or refusal of any person to comply with a court's

lawful writ, subpoena, process, order, rule, or command that by its

nature is still capable of being complied with." Rule 70A(a)(2)(D), Ala.

R. Civ. P. "A finding of civil contempt seeks to compel compliance with a

court's order; a criminal-contempt determination is designed to punish

a contemnor for disobedience of a court's order." S.T.W. v. T.N., 141 So.

3d 1083, 1086 (Ala. Civ. App. 2013). To hold a party in contempt under

either Rule 70A(a)(2)(C) (criminal contempt) or 70A(a)(2)(D) (civil

contempt), the trial court must find that the party willfully failed or

refused to comply with a court order. T.L.D. v. C.G., 849 So. 2d 200, 205

(Ala. Civ. App. 2002).

" 'The question of whether [an action involves] civil

contempt or criminal contempt becomes important …

because a contemnor must be in a position to purge himself

from the contempt. Mims v. Mims, 472 So. 2d 1063 (Ala. Civ.

App. 1985). In order to purge himself in a criminal contempt

case, the contemnor must pay the fine imposed, serve the

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authorized time, or do both. Kalupa v. Kalupa, 527 So. 2d

1313 (Ala. Civ. App. 1988). In order to purge himself in a

civil contempt case, the contemnor must comply with the

court's order. Rule 33.4(b), A[la]. R. Crim. P.' "

Davenport v Hood, 814 So. 2d 268, 272-73 (Ala. Civ. App. 2000) (quoting

Hill v. Hill, 637 So. 2d 1368, 1370 (Ala. Civ. App. 1994)).

Here, the trial court did not order the father to be incarcerated or

to be put on unsupervised probation until he complied with its orders.

In other words, the trial court was not seeking to obtain the father's

compliance with its orders. Rather, the trial court stated in its

judgment for each of the three counts of contempt that "as punishment

the father is sentenced to five (5) days in the Huntsville-Madison

County Metro Jail. Said sentence is hereby suspended, and the father is

placed on unsupervised probation for a period of two (2) years."

(Emphasis added.) Thus, the contempt finding in the trial court's

judgment found the father to be in criminal contempt. See S.T.W.,

supra.

We now address the father's argument that the record does not

substantiate the trial court's holding him in criminal contempt for

unilaterally changing the pick-up location of the child, sending

harassing communications to the mother on several occasions, and

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failing to provide the mother with reasonable telephone access to the

child during March 2019.

The father first argues that the trial court's determination that

the father unilaterally changed the pick-up location of the child is based

on a provision incorporated into the parties' divorce judgment that is

not "an order of reasonable specificity." The father specifically argues

that the provision places no limitations on the pick-up location and that

the father "could have traveled with the child to China and the mother

would have been required to retrieve the child from there[.]" We note

that the father failed to raise this issue before the trial court. Thus, we

cannot consider this argument. See Andrews v. Merritt Oil Co., supra.

The father also argues that the trial court's holding him in

contempt for unilaterally changing the pick up location of the child is

not supported by the evidence. Because the father failed to cite any

authority for this argument, we affirm the trial court's judgment as to

this issue. See Rule 28(a)(10), Ala. R. App. P.; Sea Calm Shipping Co.,

S.A. v. Cooks, 565 So. 2d 212, 216 (Ala. 1990) ("Where an appellant fails

to cite any authority for an argument, [an appellate court] may affirm

the judgment as to those issues, for it is neither [an appellate court's]

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duty nor its function to perform all the legal research for an

appellant.").

The father next argues that the trial court erred in holding him in

contempt for sending harassing communications to the mother on

several occasions. Before addressing the merits of that issue, we must

address the mother's contention that the father failed to preserve the

issue for appellate review.

In his brief, the father argues that the parties' divorce judgment

did not contain a provision on harassment. Rather, he says, paragraph

30 of the Settlement Agreement prohibited him from conduct that

would embarrass or intimidate the mother and there was insufficient

evidence to support the trial court's holding him in contempt on that

count. In her brief, the mother contends that the father's "nitpicking

over the specific verbiage" of paragraph 30 has been brought for the

first time on appeal. Because the father's argument that paragraph 30

of the Settlement Agreement does not contain the term "harassment" is

raised for the first time on appeal, we cannot consider that argument

See Andrews v. Merritt Oil Co., supra.

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In addressing the father's sufficiency-of-the-evidence argument,

which was preserved for appellate review, we note that:

"[T]he standard of review in an appeal from an adjudication

of criminal contempt occurring in a civil case is whether the

offense, i.e., the contempt, was proved beyond a reasonable

doubt. Hicks v. Feiock, 485 U.S. 624, 108 S. Ct. 1423, 99 L.

Ed. 2d 721 (1988); Combs v. Ryan's Coal Co., 785 F.2d 970

(11th Cir. 1986); and United States v. Turner, 812 F.2d 1552

(11th Cir. 1987) …. In Turner, the Court, in discussing the

standard of review in a criminal-contempt case, said:

" 'The essential elements of the criminal contempt

for which punishment has been imposed on [the

defendant] are that the court entered a lawful

order of reasonable specificity, [the defendant]

violated it, and the violation was willful. Guilt

may be determined and punishment imposed only

if each of these elements has been proved beyond

a reasonable doubt.'

"Turner, 812 F. 2d at 1563. The Turner court also stated,

quoting Gordon v. United States, 438 F.2d 858, 868 n.30 (5th

Cir. 1971):

" ' "The test is whether the evidence is sufficient to

justify the trial judge, as trier of the facts, in

concluding beyond a reasonable doubt that the

defendant was guilty, and that such evidence is

inconsistent with any reasonable hypothesis of

his innocence. Such is the substantial evidence

test." '

"Turner, 812 F.2d at 1563."

Ex parte Ferguson, 819 So. 2d 626, 629 (Ala. 2001).

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Paragraph 30 of the Settlement Agreement reads:

"The parties' hereto are ordered and directed as follows:

"(a) That each shall refrain from any and all

words, conduct, deeds or activity which are

intended or calculated to interfere with, abuse,

embarrass or intimidate the other;

"(b) That each will respect the privacy of the

other from and after the date hereof; and

"(c) That each will refrain from any activity,

words, or deeds intended or calculated to

interfere with the employment of the other, or

calculated or intended to interfere with the family

or social life of the other.

Concerning the harassing communications, the trial court stated

in its amended final judgment:

"The parties acknowledge that their divorce was final on

March 23, 2018, and that from September to November 2018

they engaged in a sexual relationship. According to the

testimony presented, once the relationship ended in

November, the father began harassing the mother with late

night telephone calls and harassing, threatening, profane

and unrequested inappropriate text and email

communications. Said conduct continued for a period of time

until the father received a second letter on July 11, 2019[,]

from the mother's attorney to cease violating Paragraph No.

30 of the Agreement entered into by the parties and ratified

and adopted by the Final Decree of Divorce dated March 23,

2018."

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After the parties' divorce was finalized, the father began sending

the mother text messages that were sexual in nature. Thereafter, the

parties engaged in a sexual relationship for approximately two months.

After their sexual relationship had ended, the father continued sending

the mother text messages that were sexual in nature. The father argues

on appeal that it was apparent from the mother's engagement in a

sexual relationship with him that the mother did not find his text

messages harassing. Otherwise, he says, the mother would have never

agreed to engage in a sexual relationship with him after their divorce.

Based on the text messages admitted into evidence, the father was

not respecting the mother's privacy, which could support the trial

court's finding that the father had harassed the mother. For instance,

one of the father's text messages to the mother stated, "Have you had

any sexual activity since you've been single? Just curious. No judgement

either way." To which the mother replied, "Sex with other people isn’t

something I'm comfortable discussing. If you're looking for that please

go elsewhere." Additionally, on multiple occasions, the father sent the

mother a series of crude and inappropriate messages even though the

mother had indicated that she no longer wanted to receive those types

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of messages. For example, the father sent a text message to the mother

that said, "If I ask you something old will you promise to answer … .

One more question then no more tonight?" The mother replied, "Leave

me alone with that kind of thing." Although the mother never engaged

in these types of conversations, the father continuously asked the

mother about her sexual life. Based on the foregoing, we determine that

there was sufficient evidence to support the trial court's finding of

contempt of court for sending harassing communications to the mother

on several occasions.

The father lastly argues that the trial court erred in holding him

in criminal contempt for failing to provide the mother with reasonable

telephone access to the child during March 2019. The father argues that

the trial court's contempt determination is not substantiated by the

record and that the order requiring the father to provide the mother

with reasonable telephone access to the child is not an order of

reasonable specificity. We first address whether the provision providing

for reasonable telephone access is an order of reasonable specificity.

On appeal, the father contends that paragraph two of the

Standard Parenting Clauses ("Paragraph No. 2") is not an order of

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reasonable specificity; thus, the father says, he cannot be held in

contempt of violating this provision. Although the father did not argue

this issue at trial, he did assert this argument in his postjudgment

motion, after which the trial court entered an amended order. Thus, we

will consider this argument. See Aramini v. Aramini, 220 So. 3d 322,

333 (Ala. Civ. App. 2016) ("The trial court has the discretion to consider

a new legal argument presented for the first time in a postjudgment

motion….").

In Nave v. Nave, 942 So. 2d 372, 379 (Ala. Civ. App. 2005), this

court determined that the divorce judgment in that case was reasonably

susceptible to two meanings and was, therefore, ambiguous. This court

determined that, because the judgment was ambiguous, "the trial court

could not have found beyond a reasonable doubt that the father willfully

violated a lawful order of reasonable specificity." 942 So. 2d at 379. This

court stated in Nave:

"An agreement, including one merged into a divorce

judgment, is ambiguous when it is reasonably susceptible to

more than one meaning. Ex parte Littlepage, 796 So. 2d 298

(Ala. 2001).

" 'When a trial court adopts a separation

agreement, it is merged into the final judgment of

divorce. A judgment of divorce is to be interpreted

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or construed like other written instruments.

Whether an agreement is ambiguous is a

question of law to be determined by the trial

court. If the agreement is susceptible to more

than one meaning, then an ambiguity exists. If

only one reasonable meaning clearly emerges,

then the agreement is unambiguous.'

"Wimpee v. Wimpee, 641 So. 2d 287, 288 (Ala. Civ. App.

1994) (citations omitted)."

942 So. 2d at 378.

Here, the provision that provides for reasonable telephone access

is Paragraph No. 2 of the Standard Parenting Clauses incorporated into

the parties' divorce judgment. Paragraph No. 2 states that "[b]oth

parties shall have reasonable telephone access to the minor children

while they are in the physical control of the other parent. The minor

children shall also have reasonable telephone access to both parties at

reasonable times." While the father contends that the term "reasonable"

is ambiguous and subject to individual interpretation, Black's Law

Dictionary defines "reasonable" in pertinent part as "Fair, proper, or

moderate under the circumstances; sensible." Reasonable, Black's Law

Dictionary (11th ed. 2019).

Although the father posits that the term "reasonable" is

ambiguous, the finding of contempt does not rest on the definition of the

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term "reasonable." Rather, the court stated in its amended final

judgment that "[b]etween March 20, 2020[,] and April 8, 2020, the

mother's communication with the minor child was willfully and

intentionally 'cut off' by the father. The mother was not allowed to see

the child or talk to him, even though she requested such opportunities."

In other words, the father denied the mother any telephone access to

the child during that time. As the mother argues, reasonable telephone

access is certainly not a "total lack of" telephone access.

The father next argues that the trial court's amended order

incorrectly references the period between March 20, 2020, and April 8,

2020, as the time when the father allegedly denied the mother

telephone access to the child, while the final judgment references March

2019. At trial, the mother testified that the father denied her

reasonable telephone access to the child on two occasions; with one

occurring in March 2019 and the other occurring in April 2020.

The mother testified that the father would not allow her to talk to

the child for an entire week in March 2019 during which time the father

had physical custody of the child. Between March 2020 and April 2020,

the father kept the child in his physical custody without consent from

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the mother and did not provide the mother with any telephone access to

the child. The father admitted to withholding the child from the mother

and explained that he feared that the mother's boyfriend had injured

the child. The father also stated that he had allowed the mother to

"make-up time" for her missed custodial period. However, the mother's

missed custodial period is not at issue here. The trial court held the

father in contempt for failing to provide reasonable telephone access to

the mother between March 20, 2020, and April 8, 2020. Between that

time, the testimony presented indicates that the father did not allow

the mother to communicate with the child via telephone.

Accordingly, the trial court did not err in holding the father in

contempt for failing to provide the mother with reasonable telephone

access to the child.

Unsupervised Probation

The father argues that the trial court erred in placing him on

unsupervised probation for two years. Before addressing the merits of

that issue, we address the mother's contention that the father failed to

preserve the issue for appellate review.

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The imposition of a sentence concerns subject-matter jurisdiction.

See Ex parte Butler, 972 So. 2d 821, 825 (Ala. 2007) (plurality opinion)

(" '[A] trial court does not have [subject-matter] jurisdiction to impose a

sentence not provided for by statute.' " (quoting Hollis v. State, 845 So.

2d 5, 6 (Ala. Crim. App. 2002)). Thus, an appellate court is not limited

by the parties' arguments as to that issue. See Ex parte Smith, 438 So.

2d 766, 768 (Ala. 1983) ("Lack of subject matter jurisdiction may not be

waived by the parties and it is the duty of an appellate court to consider

lack of subject matter jurisdiction ex mero motu.")

In addressing the father's argument, we note that sanctions for

criminal contempt are limited by statute to a maximum fine of $100 and

imprisonment not to exceed five days. See § 12-11-30(5), Ala. Code 1975.

"[U]nder the Alabama Criminal Code, [criminal] contempt is

only an 'offense,' § 13A-1-2(1), [Ala. Code 1975,] not a 'crime,'

§ 13A-1-2(5)[, Ala. Code 1975]. The maximum sentence the

circuit court can impose for criminal contempt is 5 days in

jail and a $100 fine. Ala. Code 1975, § 12-11-30(5). An

offense that may be punished only for 30 days or fewer days

in jail is a 'violation,' § 13A-1-2(2)[, Ala. Code 1975]. Only

misdemeanors and felonies (not violations) are crimes. §

13A-1-2(5). Therefore, under our statutes, criminal contempt

is a violation, and is merely an offense, not a crime."

Ex parte Ivey, 698 So. 2d 187, 188 (Ala. 1997). "Under Alabama law, the

probationary period for a sentence imposed upon a defendant's

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conviction of a misdemeanor cannot exceed two years, and the

probationary period for a sentence imposed upon a defendant's

conviction of a felony cannot exceed five years. § 15-22-54(a), Ala. Code

1975." L.S. v. A.S., 272 So. 3d 169, 184 (Ala. Civ. App. 2018).

In L.S., the juvenile court determined that the mother had

committed five separate acts of contempt and sentenced her to five days

in jail for each act. The juvenile court then stated in its judgment that it

would suspend that sentences and place the mother on unsupervised

probation for two years for each count. This court held that the juvenile

court had exceeded its authority in imposing a two-year unsupervised

probationary period for the offense of criminal contempt and stated,

"Our holding is not be understood as a prohibition against the

suspension of sentences in actions of criminal contempt. We merely

conclude that a period of probation cannot be imposed as part of such a

sentence." L.S. v. A.S., 272 So. 3d at 184.

In this case, the trial court held the father in criminal contempt

and sentenced him to five days in jail, suspended that sentence, and

placed him on unsupervised probation for two years. In accordance with

L.S., we conclude that the trial court had no authority to impose on the

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father a probationary period for the offense of criminal contempt.

Accordingly, we reverse the trial court's imposition of a two-year

probationary period for his contempt.

IV. Cross-Appeal

On appeal, the mother argues that the trial court erred by

awarding the parties joint physical custody of the child. Before

addressing the merits of that issue, we must address the father's

contention that the mother failed to preserve the issue for appellate

review. In his brief, the father contends that the mother failed to file a

postjudgment motion after the trial court entered its amended order

awarding the parties joint physical custody of the child.

Although the father posits in his postjudgment motion that the

facts supporting the contempt orders were the reasons for the initial

custody modification, the final judgment dated April 6, 2021, and the

amended final judgment dated October 14, 2021, of the trial court do

not correlate the custody modification to the findings of contempt. Both

the final judgment and the amended judgment lack any specific findings

of fact relating to the custody modification. When the trial court has

made no written findings of fact in a nonjury trial, a party must move

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for a new trial in order to preserve for review a question relating to the

sufficiency or weight of the evidence. New Prop. LLC v. Stewart, 905 So.

2d 797, 801 (Ala. 2004). In other words, the party must file a

postjudgment motion in order to preserve an argument relating to the

sufficiency of the evidence for appellate review. The mother failed to file

a postjudgment motion; she did not move for a new trial in this case or

otherwise argue that the judgment was not supported by sufficient

evidence. Accordingly, the mother failed to preserve this issue for

appellate review, and we affirm the portion of the trial court's judgment

awarding the parties joint physical custody of the child.

Conclusion

For the reasons set forth herein, the judgment of the Madison

Circuit Court is affirmed as to the trial court's holding the father in

contempt for unilaterally changed the pick-up location of the child; as to

the trial court's holding the father in contempt for sending harassing

communications to the mother; as to the trial court's holding the father

in contempt for failing to provide the mother with reasonable telephone

access to the child; and as to the trial court's judgment awarding the

parties joint physical custody of the child. The judgment is reversed as

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to the trial court's imposition of a probationary period and as to the trial

court's judgment requiring the father to pay 70% of the child's

extracurricular-activity expenses and school-related expenses. The

judgment is also reversed as to the amount of the child-support award,

and the cause is remanded for the trial court to properly determine

father's child-support obligation in accordance with Rule 32, Ala. R.

Jud. Admin. The trial court may, in its discretion, compute that

obligation according to the child-support guidelines or expressly state

the reasons why a deviation from the guidelines is necessary, such as

taking into consideration the child-care costs that the mother incurs

associated with her education and the custody arrangement between

the parties.

2210161 -- AFFIRMED IN PART; REVERSED IN PART; AND

REMANDED WITH INSTRUCTIONS.

2210206 -- AFFIRMED.

Thompson, P.J., and Moore, Edwards, and Fridy, JJ., concur.

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