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Hartin v. Hartin

Alabama Court of Civil Appeals

January 9, 2015

Martha Middlebrooks Hartin
v.
Caleb Allen Hartin

Released for Publication August 5, 2015.

Appeal from Montgomery Circuit Court. (DR-12-402). Calvin L. Williams, Trial Judge.

For Appellant: Michael F. Braun, Karen Materna, Montgomery.

For Appellee: Jacquelyn D. Tomlinson, Law Office of Melissa Isaak, Montgomery.

PITTMAN, Judge. Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

OPINION

PITTMAN, Judge.

Martha Middlebrooks Hartin (" the wife" ) appeals from a judgment of the

Page 46

Montgomery Circuit Court (" the trial court" ) dissolving her marriage to Caleb Allen Hartin (" the husband" ) and challenges the provisions of that judgment (1) granting the parties joint legal custody of the parties' twin daughters (" the children" ) instead of granting the wife sole legal custody and (2) providing for an automatic modification of the husband's supervised visitation to unsupervised visitation upon the passage of six months. We affirm in part, reverse in part, and remand.

The wife sued the husband for a divorce in 2012. The trial court held a bench trial at which it received evidence ore tenus in February 2014. The record indicates that the parties married in 2009, that the children were born in 2010, that the parties separated initially in January 2012, that the parties resumed living together in June 2012, and that the parties separated permanently in September 2012. The wife testified that the husband had assaulted her on several occasions and that he had also harassed her or stalked her on other occasions. She further testified that she had sworn out warrants for the husband's arrest based on some, but not all, of his criminal acts of assault and harassment. The husband testified that he and the wife had both committed acts of domestic violence and that they were equally responsible for the violence in their relationship. The husband testified that the children had never been placed in danger by the parties' violent acts and that the children had been asleep when those violent acts occurred. In early April 2013, the husband was arrested, and he remained incarcerated in the county jail until he pleaded guilty to a charge of aggravated stalking in early October 2013. He was placed on probation for two years as a result of that conviction, and the terms of his probation prohibited him from having any contact with the wife. Because he had been incarcerated from early April 2013 until early October 2013 and had been prohibited by the terms of his probation from having any contact with the wife thereafter, the husband had not seen the children in approximately 11 months when this action was tried.

After the trial, the trial court entered a judgment that, among other things, dissolved the parties' marriage, granted the parties joint legal custody of the children, granted the wife primary physical custody of the children, granted the husband visitation with the children pursuant to a schedule specified in the judgment, and provided that the husband's visitation would be supervised for six months and then would automatically be modified to unsupervised visitation at the end of that six-month period. The judgment contained the following provisions that are at issue in this appeal:

" 5. That the Court has considered the testimony relative to allegations of abuse perpetrated by the Husband and against the Wife and does not find that the allegations of abuse merit depriving the Husband of joint legal custody and visitation with the minor children. Of note, any and all abuse charges against the Husband were either dismissed or he was acquitted. Though the Husband has been convicted of aggravat[ed] stalking, the Court does not find that such a conviction merits depriving the Husband of custody or visitation rights, as the testimony revealed that even under protection orders (which underlay the stalking charges), the Wife and Husband had mutual meetings and would see each other. No safety concerns of the children were ever implicated during any instance or allegation of domestic violence, and the children were either asleep or not present at the times of such allegations.
" 6. That for a period of six months from the date of this order, ...

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