Appeal from Lauderdale Circuit Court (DR-99-110.05)
Robert Broadway ("the father") appeals from a judgment of the Lauderdale Circuit Court ("the trial court") denying his petition to modify custody of a child, increasing his child-support obligation, and ordering him to pay a portion of the attorney fees incurred in the litigation by Gloria Broadway ("the mother"). The mother did not file a brief with this court. We affirm the trial court's judgment regarding custody and attorney fees; however, the record does not support the portion of the judgment ordering an increase in the father's child-support obligation. We, therefore, reverse that portion of the judgment.
Facts and Procedural History
The father and the mother have a son, K.B., who was born during their marriage. The father and the mother were divorced in 1999, and the mother was granted primary physical custody of K.B. At the time of the final hearing in this case, K.B. was over 16 and a half years old, and he was 17 years old by the time the case was concluded in the trial court.
The mother and K.B. live in Florence. The father lives in Huntsville with his wife and their two children, along with two of his wife's children born of another marriage. The record shows that the parties have been before the trial court on several occasions following the divorce on the father's petitions for modification of custody and/or visitation. As early as 2003 and again in 2009, the father filed petitions in the trial court unsuccessfully seeking custody of K.B. based on his claim that the mother had engaged in parental alienation. In the 2010 proceeding ("the .04 proceeding"), the Alpha Center generated a report ("the Alpha Center report") based on information gathered from the mother, the father, and K.B. between September 2009 and June 2010, which concluded, among other things, that the mother had been the cause of K.B.'s alienation from the father. The Alpha Center report recommended that if the father lived in the same geographical area as K.B., the father should be given physical custody of K.B. in order to reverse the alienation. The Alpha Center report also recommended, however, that K.B.'s age and the impact upon him of any disruption caused by relocation should be considered. The Alpha Center report recommended that if physical custody remained with the mother, K.B. should have the opportunity to spend extended time with the father on holidays and school breaks. The Alpha Center report also recommended continued counseling for the mother, the father, and K.B.
On June 8, 2010, the trial court entered a judgment in the .04 proceeding ordering that the mother continue to have sole physical custody of K.B. The judgment expanded the father's visitation schedule with K.B. to include every other Tuesday from 4 p.m. to 8 p.m., in addition to the father's existing visitation, which included every other weekend, alternating holidays, spring break, and four weeks in the summer, and the judgment increased the father's child-support obligation to $1, 370 per month. The judgment stated that the trial court would monitor the .04 proceeding with reviews every six months.
The mother began meeting with Lynn McLean, a licensed professional counselor, in April 2008. The father and K.B. began counseling sessions with McLean in April 2009. The last counseling session K.B. had with McLean was in August 2011, and the last session McLean had with the mother was later in August 2011. The father continued to meet with McLean and regularly attended counseling sessions.
On September 16, 2011, the trial court entered an order in the .04 proceeding directing the parties to continue counseling with McLean and to follow her "recommendations, advice, and protocol." The order discontinued any future reviews. Notwithstanding the September 16, 2011, order, the mother and K.B. did not attend any more counseling sessions with McLean.
On November 29, 2011, the father filed another petition with the trial court, which initiated the underlying proceeding, seeking to modify custody of K.B. The mother answered, denying that custody should be modified, and she counterclaimed for a modification of the father's child-support obligation and for payment of her attorney fees. The trial court appointed a guardian ad litem to represent K.B.
Trial was conducted on six days between February 2012 and February 2013. According to the father's testimony, K.B. had expressed hatred toward him and his current wife since the spring of 2003. The father believed that the hatred was caused by acts or conduct of the mother. As an example, the father described an occasion when his wife had taken K.B. back to the mother following visitation. After being picked up by the mother, K.B. had inadvertently called the father with his cell phone, and the father testified that he heard the mother "badgering [K.B.] about what all happened at my house. What awful things could happen. How bad [the father's wife] was to [K.B.] while [K.B.] was at [the father's] house." The father alleged that the mother would text K.B. excessively while he was with the father on visitation. The father also contended that the mother tried to limit his contact with K.B. He testified to difficulties in working with the mother to reschedule visitation for certain weekends or summer-vacation periods. In the father's view, the mother was not flexible or cooperative and was often unreasonable in demanding that K.B. be returned from visitation at specific times. The father described how the visitation problems upset K.B., causing him to become withdrawn. The father was concerned about K.B.'s academic achievement and his preparations for the ACT examination, which is used to assess an individual's preparedness for college, while in the primary custody of the mother. The father was also concerned that the mother had allowed K.B. to work at a haunted-house type attraction that depicted violent scenes.
The father also testified to examples of K.B.'s behavior that the father attributed to alienation from the father caused by the mother. Those examples included, in the father's view, K.B.'s not smiling as he would normally smile in pictures when the pictures were with the father and the father's family; K.B.'s appearing not to enjoy trips on the father's private plane and his apparent embarrassment for having access to the plane; and K.B.'s canceling trips with the father for reasons including not wanting to miss school days or swim-meet activities, despite K.B.'s initial enthusiasm for the trips. The father described how K.B. was initially enthusiastic about attending the 2011 BCS National Championship Game as an avid fan of one of the participating college-football teams, but, the father said, after returning to the mother's home, K.B. declined the trip and stated he did not want to miss a day of school.
The mother denied allegations that she had engaged in acts to alienate K.B. from the father. She denied the father's claim that she had told K.B. about plans to travel on a cruise during the father's visitation period before the father had approved. She testified that K.B. found out about the cruise through his friends who were also going on the cruise. She admitted that she sent text messages to K.B. while he was at the father's house, but she denied sending an excessive number of texts. She testified that she told K.B. to be respectful while visiting at the father's house, but that she did not prohibit K.B. from smiling while at the father's house or forbid him from showing affection toward the father's wife. She testified that, although she had allowed K.B. to volunteer at a haunted-house type attraction, she was present at the attraction at the times K.B. volunteered except for one occasion.
A youth minister from the church K.B. attended testified that K.B. was outgoing, easygoing, well-rounded, and enjoyable to be around. He testified that K.B. appeared to be self-confident without any anti-social or violent behavior, that K.B. had no difficulty interacting with females, and that K.B. paid proper respect to male authority figures. The youth minister stated that K.B. usually seemed to be in a good mood and eager to volunteer setting up for church events. The youth minister testified that he worked with students who had serious issues or problems, and that he never had a concern with K.B. He stated that K.B. and the mother appeared to have a healthy, natural teenager-parent relationship and appeared to be respectful to each other. The youth minister testified that it appeared the mother gave K.B. "his space."
The principal at K.B.'s high school testified that she knew K.B. from a leadership group that was responsible for certain activities at the school. When K.B. was in the ninth grade, she nominated K.B. to be student of the month. She stated that K.B. was always pleasant, responsible, and dependable. The principal testified that K.B. was a good student, made good grades, was respectful of authority, and never had an issue requiring him to go to her office.
A teacher at K.B.'s high school who had K.B. in his class from 2011-2012 testified that K.B. never caused problems in class, was respectful of authority, and always wanted to be helpful. The teacher did not notice anything unusual with K.B.'s moods. He testified that K.B. was a well-rounded young man who had no problems with relationships with other students or the staff. The teacher testified that it is usually difficult for a student to transfer schools, though, the teacher said, having friends and familiarity in the new school could lessen the difficulty. The teacher testified that K.B. had indicated that he ...