Lester v. Lester

378 So.3d 555

John LESTER

v.Amber LESTER

2210282

Court of Civil Appeals of Alabama.

December 22, 2022

Robert G. Poole of The Poole Law Firm, LLC, Auburn, for appellant.

Submitted on appellant’s brief only.

EDWARDS, Judge.

In May 2019, Amber Lester ("the mother") filed a complaint in the Lee Circuit Court ("the trial court") seeking to have John Lester ("the father") held in contempt for his actions in April 2019 that allegedly violated certain provisions of a 2018 judgment prohibiting the father from having direct or indirect contact or communication with, or being within 100 feet of, the mother’s husband, Brian Manderson. The mother also sought an ex parte order restraining the father from attending the activities of the parties’ children and requiring that the father’s visitation with the children be supervised. The trial court entered an ex parte order suspending the father’s visitation with the children and prohibiting contact between the father and Manderson, the mother, and the children; it also entered a protection-from-abuse order ("the PFA order"), which prohibited the father from being within 300 feet of the mother, the children, the mother and the children’s residence, the mother’s place of employment, and the children’s school. The father filed a motion seeking reconsideration of the ex parte order and the PFA order, and the mother filed a motion seeking to have the father held in contempt for alleged actions occurring in October 2019 that the mother contended were in violation of the ex parte order and the PFA order. The trial court entered a pendente lite order in November 2019 that, among other things, required the father to commence an anger-management course. The father later filed in this court a petition for the writ of mandamus relating to the ex parte order and the PFA order; we granted that petition in part and ordered the trial court to set aside the ex parte order and to hold an evidentiary hearing on the issue of visitation. Ex parte Lester, 297 So. 3d 477 (Ala. Civ. App. 2019).

Over the next year, the parties filed several motions, the father filed a counterclaim seeking a modification of custody and to hold the mother and Manderson in contempt for alleged violations of provisions in the 2018 judgment prohibiting the consuming of alcoholic beverages during the mother’s custodial periods and Manderson’s disciplining of the children, and the trial court held several hearings, including an evidentiary hearing in June 2020 that focused on the visitation issue. However, the trial court stayed the trial on the contempt allegations raised by the mother because the father had been arrested and charged with various crimes in Alabama and in Georgia stemming from the incidents giving rise to the contempt allegations. The trial court entered a pendente lite order in July 2020 awarding the father supervised visitation with the children on the second and fourth Saturdays of each month from 10:00 a.m. to 5:00 p.m.; the order required visitation to be supervised by Christopher Statin.

Ultimately, although the father’s criminal cases were not yet resolved and the father was exercising his Fifth Amendment privilege against self-incrimination regarding the incidents giving rise to the contempt allegations, the trial on the parties' claims commenced on December 10, 2020. On January 11, 2021, the trial court entered an order that, among other things, found the father to be in contempt based on his actions in April 2019 and in October 2019, assessed a $1,000 fine for each incident of contempt, and modified the visitation provisions of the judgment divorcing the parties, which had been entered in March 2010, and any subsequent judgment by awarding him unsupervised visitation with the children on the second and fourth Saturdays of each month between 9:00 a.m. and 6:00 p.m. The father filed a purported postjudgment motion seeking reconsideration of the January 2021 order. In that motion, among other things, the father challenged the assessment of $2,000 in fines, arguing that the trial court was limited to a $500 fine for each finding of what, he alleged, was criminal contempt.

In response to the father’s purported postjudgment motion, the trial court entered an order on May 5, 2021, explaining that it had found the father to be in civil contempt and stating that, pursuant to United States v. United Mineworkers of Am., 330 U.S. 258, 303-04, 67 S.Ct. 677, 91 L.Ed. 884 (1947), and Chestang v. Chestang, 769 So. 2d 294 (Ala. 2000), a trial court is permitted to assess fines in conjunction with a finding of civil contempt "to encourage a contemnor’s future compliance with the court orders" and that, pursuant to United Mine Workers, Chestang, and Pate v. Guy, 934 So 2d 1070 (Ala. Civ. App. 2005), a trial court is permitted to award damages "in order to compensate the injured party and/or to encourage the contemnor’s future compliance with court orders." The father filed a notice of appeal, which was assigned appeal number 2200734. However, because the trial court had not resolved the father’s counterclaim in the January 2021 order, we dismissed appeal number 2200734 as having been taken from a nonfinal judgment. Lester v. Lester (No. 2200734, Sept. 21, 2021), — So. 3d (Ala. Civ. App. 2021) (table).

After we issued our certificate of judgment in appeal number 2200734, the father filed a motion to finalize the January 2021 order. After a hearing, the trial court entered a final judgment on November 23, 2021, finding the father in civil contempt based on the two incidents alleged by the mother, assessing what it described as a $1,000 civil fine for each incident of contempt, awarding the father unsupervised visitation with the children on the second and fourth Saturdays of each month from 9:00 a.m. to 6:00 p.m., ordering the father to pay the mother $8,000 to reimburse her for her attorney fees, and ordering the father to pay $3,700 toward the fee for the children’s guardian ad litem. The November 2021 judgment denied all other requests for relief by either party and did not award the father any specific holiday or summer visitation. The father filed a timely notice of appeal.

The record contains transcripts of three evidentiary hearings: the November 2019 hearing on the father’s request to set aside the ex parte order, the June 2020 hearing on the visitation issues, and the December 2020 trial. Most of the testimony at each of the evidentiary hearings centered on the incidents of contempt that the mother alleged had occurred in April 2019 and October 2019. The father exercised his Fifth Amendment privilege against self-incrimination and did not testify about the circumstances surrounding his allegedly contemptuous behavior.

Manderson testified that, in April 2019, he took his youngest stepdaughter, M.L. ("the younger child"), to softball practice, where, he said, he observed the father in the parking lot at the softball-practice field. Manderson said that he dropped the younger child off and had informed her that he would be going to a nearby store. According to Manderson, he soon noticed that the father had followed him from the practice field. Manderson testified that the father had followed him to the store parking lot and that the father had initially parked an aisle away but, soon thereafter, moved into a nearby parking space. Manderson said that he had called the mother when he had noticed the father following him and that she had advised him to contact the police, which, he said, he had done. Manderson said that the father approached Manderson’s truck and tried unsuccessfully to open the driver’s side door, after which, Manderson said, the father returned to his own truck and left the parking lot.

According to Manderson, he drove back to a parking lot adjacent to the softballpractice field and parked in a manner that would allow him to observe the entrance to that parking lot. Manderson said that he did not observe the father return to the practice-field parking lot. Despite that fact, Manderson testified, the father had returned to the parking lot and approached him as he sat in his truck. Manderson said that the father screamed profanities and attempted to hit Manderson in the face. Manderson said that the father’s fist only grazed him but that the father also grabbed and tore the shirt Manderson was wearing. Manderson said that persons returning from the practice field witnessed the altercation, which, Manderson said, ended when he drove his truck forward and the father jumped clear of the truck. Manderson pressed criminal charges against the father based on that incident.

Regarding the October 2019 incident, Manderson testified that he was driving from property that he owned on a road upon which the father’s house was located; Manderson said that his two-year-old daughter was in his truck with him. He said that he noticed the father’s truck behind him and that he grew concerned. Manderson admitted that, when the father attempted to pass his truck, Manderson sped up to speeds of approximately 80 miles per hour to prevent the father from passing him. According to Manderson, he observed the father point a gun out of his window and heard the father fire that gun three times. Manderson testified that he called the mother and then called 911 to report the father’s behavior. Manderson said that, after some time, the father was able to pass him and that the father had then stopped his truck on the roadway. Manderson said that he executed a three-point turn and proceeded to return the way he had come to avoid the father. Ultimately, Manderson said, he and the father later passed each other as they headed in opposite directions, and, Manderson testified, the father’s truck damaged the side mirror of Manderson’s truck. Manderson testified that he had sworn out an arrest warrant for the father.

The mother testified at the November 2019 hearing that the father had violated the provision of the 2018 judgment requiring...