(251) 299-0101

Contempt - Time To Appeal - Waiver Of Constitutional Challenge

Boyd v. Boyd, [Ms. 2170729, Mar. 1, 2019] __ So. 3d __ (Ala. Civ. App. 2019). The court (Hanson, J.; Moore and Edwards, JJ., concur; Thompson, P.J. and Donaldson, J., concur in the result) dismisses the mother’s appeal as untimely from the Mobile Circuit Court’s September 28, 2017, order finding her in contempt for relocating to Texas with her children in contravention of a provision in the divorce decree incorporating the notice requirements of the Alabama Parent Child Relationship Protection Act (APCRPA). Ms. *2. The court noted that under Rule 70A(g)(2), Ala. R. Civ. P., an adjudication of contempt is immediately appealable if the contemnor is not in custody. Ms. *42.

On the merits, the court affirmed the final judgment sustaining the father’s objection to the relocation of the children. The court applied the factors set out in the APCRPA and concluded that substantial evidence warranted a judgment in favor of the father’s objection against the relocation of the children. Ms. *22.

In regard to the mother’s constitutional challenge to the APCRPA, the court first held that arguments in the mother’s post-judgment motion expanding the arguments set out in her timely “notice of constitutional challenge” would not be considered on appeal. The court concluded that “the trial court was under no duty to consider those expanded arguments....” Ms. *32.

The court applied prior precedent holding that “state-imposed restrictions (whether of a judicial nature, as in a territorial restriction regarding a child’s residence contained in a judgment, or a legislative nature, as in the presumption in favor of a child stasis under the APCRPA) operate on the right to change the residence of a minor child and not upon the physical custodian’s right to relocate so as to impinge a custodian’s own travel rights.” Ms. *36, citing Meadows v. Meadows, 3 So. 3d 221 (Ala. Civ. App. 2008).

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