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Ingram v. Matthews

Alabama Court of Civil Appeals

July 17, 2015

Joann Ingram
Chester W. Matthews

Page 466

          Appeal from Elmore Circuit Court. (DR-12-118.02).

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


Page 467

          PITTMAN, Judge.

         Joann Ingram (" the mother" ) appeals from a judgment of the Elmore Circuit Court (" the trial court" ) modifying a previous custody judgment, which had awarded the mother sole legal and physical custody of the minor child (" the child" ) of the mother and Chester W. Matthews (" the father" ). We reverse the judgment of the trial court and remand the cause.

         Facts and Procedural History

         The mother and the father were divorced pursuant to a judgment entered by the trial court in November 2012 (" the divorce judgment" ). The child was six years old when the divorce judgment was entered. The divorce judgment, which was based upon an agreement between the parties, awarded the mother sole legal and physical custody of the child and ordered the father to pay child support. In addition, the divorce judgment stated that the father " remains a credible threat to the physical safety of the [mother] and that the [mother] has been the victim of a history of domestic violence and abuse." Accordingly, the divorce judgment " permanently restrained and enjoined [the father] from engaging in abusive conduct toward the [mother]." The divorce judgment also awarded the father weekend-visitation rights with respect to the child, although the divorce judgment stated that the father's visitations were to be supervised for approximately one month after the entry of the divorce judgment and prohibited the father from allowing the child to be in the presence of certain named individuals.[1]

         According to the father, in October 2013, the mother and the father began living together again in an attempt to reconcile. The mother, on the other hand, testified that, at that time, she and the father began living in independent portions of the same duplex house and that she had lived in that house only because the child " needed a dad."

         The mother and the father separated again in January 2014, at which time the mother and the child moved out of the duplex and onto property owned by the mother's parents (" the maternal grandparents" ). According to the father, the child began living in a house with the maternal grandparents, while the mother began living in a mobile home on the maternal grandparents' property. The mother admitted at the trial that she had lived in the mobile home at one point, but she stated that the mobile home had since been sold and that she and the child had been living together in the maternal grandparents' house for eight months. The mother testified that, when she and the father were married, they had lived " a little bit of everywhere," including in the maternal grandparents' home. The mother's father (" the maternal grandfather" ) confirmed that the child had " always lived with [the] mother" and that, during some of that time, they had lived with the maternal grandparents.

         In February 2014, the maternal grandfather filed a pro se petition in the trial court, in which he requested " full legal and physical custody" of the child. In his petition, the maternal grandfather explained that awarding him custody of the child would qualify the child for " college benefits" through the United States Army, of which the maternal grandfather is a veteran. Attached to the maternal grandfather's petition was an affidavit that had been executed by the mother, in which the

Page 468

mother stated that she " agree[d] with the petition that [the maternal grandfather had filed] for better education and more secur[ity] in [the child's] future." [2]

         The maternal grandfather later testified that a counselor employed by the Department of Veterans Affairs had recommended to the maternal grandfather that he should attempt to gain custody of the child so that the child could be claimed as the maternal grandfather's dependent and receive government benefits from the military. Both the maternal grandfather and the mother testified that they had intended for the maternal grandfather to request that he and the mother share joint custody of the child, and the mother testified that the underlying purpose of the petition had been simply to help provide for the child's future financial needs.

         The mother testified that the child's past and present needs had been, and were being, met and that the maternal grandfather's petition was not filed because the child had been deprived of any necessities. Although the maternal grandfather testified that there had never been a time that the mother was unable to provide for the child, he did testify that he had filed the petition, in part, " to help financially with supporting [the child] because his child support is always late." The maternal grandfather testified that the government benefits would have come in the form of a check in the child's name and would have been placed in a separate account. The maternal grandfather's petition was dismissed before the trial took place in this matter.

         In April 2014, the father filed his own pro se petition requesting that the trial court award him custody of the child. In that petition, the father asserted that he loved the child, that he had supported the child since the child's birth, and that, " if [the] mother doesn't want [the child]," then the father did. After engaging legal counsel, the father later amended his petition to assert that a change in circumstances justified modification of the custody provisions in the divorce judgment. Specifically, the father pointed out in his amended petition that the mother had consented to a petition to award the maternal grandfather custody of the child, and the father asserted that the mother " is no longer able or willing to care for [the child]."

         Shortly after filing his original petition requesting an award of custody, the father moved to Florida where, at the time of the trial in this matter in September 2014, the father lived in a three-bedroom, one-bathroom house with his sister. According to the father's testimony and other filings in this matter, the father's new home in Florida is approximately 600 miles from where the mother and the child were residing at the time of the trial. The father, however, claimed that he believed his sister's home is approximately a two-hour drive from some unnamed members of the mother's family.

         The father testified that, at the time of the trial, he had been working as a welder for one month and that, before that time, he had worked at various other jobs he had obtained through a temporary-employment agency. There is no testimony in the record regarding how much income ...

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