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)
2210161 and 2210206

2

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 
2210161 and 2210206

3

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 
2210161 and 2210206

4

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 
2210161 and 2210206

5

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). 
2210161 and 2210206

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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 
2210161 and 2210206

7

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 
2210161 and 2210206

8

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 
2210161 and 2210206

9

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. 
2210161 and 2210206

10

"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 
2210161 and 2210206

11

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 
2210161 and 2210206

12

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

the father is sentenced to five (5) days in the HuntsvilleMadison 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. ..."
2210161 and 2210206

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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:
2210161 and 2210206

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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 
2210161 and 2210206

15

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 workrelated child-care costs downward to $5576.00 per 

month utilizing the Alabama Department of 
2210161 and 2210206

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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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19

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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20

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 
2210161 and 2210206

21

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

decisions regarding the child, and the father would have final decisionmaking 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. 
2210161 and 2210206

22

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 
2210161 and 2210206

23

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 
2210161 and 2210206

24

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 
2210161 and 2210206

25

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
2210161 and 2210206

26

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 extracurricularactivity 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 crossappeal, 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 childsupport 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. 
2210161 and 2210206

27

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 childcare 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 childsupport 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 childsupport 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; 
2210161 and 2210206

28

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 
2210161 and 2210206

29

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:
2210161 and 2210206

30

"....

"(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 childsupport 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 
2210161 and 2210206

31

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). 
2210161 and 2210206

32

Because the father contends that the custody arrangement 

between the parties should be considered in determining his childsupport 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
2210161 and 2210206

33

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 
2210161 and 2210206

34

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 
2210161 and 2210206

35

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 
2210161 and 2210206

36

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 
2210161 and 2210206

37

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 
2210161 and 2210206

38

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 
2210161 and 2210206

39

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] 
2210161 and 2210206

40

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.
2210161 and 2210206

41

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). 
2210161 and 2210206

42

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."
2210161 and 2210206

43

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 
2210161 and 2210206

44

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 
2210161 and 2210206

45

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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46

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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47

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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48

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. 
2210161 and 2210206

49

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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50

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 
2210161 and 2210206

51

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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52

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 
2210161 and 2210206

53

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.