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Cohabitation of Previously Divorced Parents - Notice of Contempt Proceeding - Impossibility

Rivera v. Sanchez, [Ms. 2180624, Dec. 20, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Edwards, J.; Thompson, P.J., and Donaldson and Hanson, JJ., concur; Moore, J., concurs in the result) affirms a judgment of the Morgan Circuit Court holding the father in contempt for failure to pay child support.

In affirming, the court rejected the father’s contention that the parties’ reconciliation and cohabitation for four years following their divorce nullified the father’s child support and alimony obligations. Although the remarriage of previously divorced parents abrogates child-custody and child-support provisions in a prior divorce judgment, the parties here did not remarry, nor did either party contend that a common-law marriage resulted from their cohabitation. Ms. *9.

In regard to the finding of contempt, the court first held that because the father was present at the hearing and no writ for his arrest was issued, “any deficiency in the hearing notice amounted only to harmless error.” Ms. *25, quoting C.D.M. v. W.B.H., 140 So. 3d 961, 967 (Ala. Civ. App. 2013). While noting that the inability to pay child support or alimony is a defense to a contempt charge, the circuit court correctly rejected the father’s inability defense because the finding of contempt related to the failure to pay child support between August 2016 and February 2017, a period before the father suffered heart attacks which prevented him from working. Ms. *27.

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