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F.C v. S.J.M.

Alabama Court of Civil Appeals

May 26, 2017


         Appeal from Madison Juvenile Court (CS-16-900185)

          MOORE, Judge.

         F.C. ("the mother") appeals from a judgment of the Madison Juvenile Court ("the juvenile court") that, among other things, awarded S.J.M. custody of the child born to the parties and ordered the mother to pay child support. We affirm the juvenile court's judgment.

         Procedural History

         On March 16, 2016, S.J.M. filed in the juvenile court a verified petition for custody, alleging, among other things, that a child had been born to the parties on November 14, 2008, that S.J.M. had completed a "Voluntary Acknowledgment of Paternity" at the child's birth, that the parties were never married, and that the child was in the mother's custody. S.J.M. sought "a finding that [he] is the legal and biological father of the minor child, " an award of sole physical custody and joint legal custody of the child, and an award of child support from the mother. On April 7, 2016, the mother filed a motion to dismiss S.J.M.'s petition for lack of jurisdiction. She alleged, among other things, that paternity of the child was not at issue, that no previous custody order regarding the child had been entered, that there was no allegation of dependency in S.J.M.'s petition, and that the case was merely a child-custody proceeding. S.J.M. filed a response to the mother's motion on April 19, 2016. On May 9, 2016, S.J.M. filed an amended petition, adding "a request for a judicial determination of paternity." On May 26, 2016, S.J.M. filed a motion for a pendente lite order awarding him sole physical and legal custody of the child.

         The mother filed an answer to S.J.M.'s original petition on June 3, 2016. She filed an answer to S.J.M.'s amended petition on that same date; the mother asserted in that answer that she had no objection to a judicial determination of paternity. The mother also filed a counterclaim requesting, among other things, sole physical and legal custody of the child, an award of child support, and an award of retroactive child support in favor of the mother and against S.J.M. The mother filed a motion seeking pendente lite relief on June 3, 2016, as well. The juvenile court conducted a pendente lite hearing on June 8, 2016, and, on June 17, 2016, the juvenile court entered a pendente lite order that ordered the parties to exercise joint custody of the child pending a final hearing and directed how the custody exchanges should occur. On October 11, 2016, S.J.M. filed an answer to the mother's counterclaim.

         The trial was conducted on October 24, 2016. On October 26, 2016, the juvenile court entered a final judgment adjudicating S.J.M. as the legal father of the child, pursuant to the Alabama Uniform Parentage Act ("the AUPA"), Ala. Code 1975, § 26-17-101 et seq.; awarding the parties joint legal custody of the child; awarding S.J.M. sole physical custody of the child, subject to the mother's visitation rights; ordering the mother to pay to S.J.M. $237 per month in child support; and denying all remaining requested relief. The mother filed a postjudgment motion on November 9, 2016. On November 17, 2016, the juvenile court entered an order on the mother's postjudgment motion; the juvenile court made additional findings, but it otherwise denied the relief sought in the mother's motion. The mother filed her notice of appeal to this court on November 30, 2016.


         S.J.M. (hereinafter referred to as "the father") testified that he and the mother first became involved in a relationship in 2007, while he was living in Virginia and the mother was living in Maryland. He testified that the child was born on November 14, 2008; that, in 2010, the parties had relocated to Madison, Alabama, with the child; and that the parties had ended their relationship in 2011. S.M., the child's paternal grandmother, testified that the father and the mother had lived with her in Virginia when the mother was pregnant with the child and that the mother and the child had continued to live with her when she moved to Madison in 2010 until the mother and the child moved to Huntsville in 2011. The paternal grandmother also testified that the mother and the child had stayed with her at times since they had moved to Huntsville. According to the father, after the parties separated in 2011, he moved from Madison to Virginia, and then he moved to Enterprise, Alabama. The father testified that he lived in Enterprise until he moved back to Madison in February 2016. He stated that, when he lived in Enterprise, he had visited the child on his days off, on holidays, on birthdays, on other vacation days, and at other times. The father testified that he had seen the child at least once or twice a month during that time. He admitted that he had never paid any child support to the mother.

         According to the father, at the time of the trial, he was living in a four-bedroom house in Madison that belongs to the paternal grandmother. He testified that the paternal grandmother occupies 1 bedroom; that he and his current wife, M.M., share a bedroom; that his 2 stepsons, ages 7 and 11, share a bedroom; and that his two daughters by his current wife, ages 2 and 4, share a bedroom with the child when she is in his custody, and that their shared bedroom has bunk beds. He testified that he works for a defense commissary and that he had worked for that employer for almost seven years. The father testified that the child was attending a private school operated by St. Johns Baptist Catholic Church at the time of the trial and that she had been enrolled in that school from pre-kindergarten through the second grade. He stated that he pays the child's school tuition and that the child has many friends at her school. According to the father, the child was doing better in school at the time of the trial than she had in the previous year, although, he said, she continued to have difficulties with reading and spelling.

         The father testified that the child and her stepbrother, who are the same age but in different schools, help each other with their schoolwork and that that had helped the child improve in school. M.M. testified that their household is very family oriented and that they have a steady routine and maintain a schedule for the children. M.M. testified that she and the father transport the child to and from school. M.M. and the paternal grandmother reiterated the father's testimony that M.M.'s son, the child's stepbrother, helps the child with her homework and with understanding their schoolwork. M.M. stated that she and the father try to keep the children busy with extracurricular activities to make sure that they are disciplined and as an incentive to maintain their grades. The father testified that he had enrolled the child in a gymnastic class over the summer, although, he said, she had recently stopped attending that class. He stated that the mother did not take the child to the gymnastic class during her custodial periods. The father stated that the child had been having issues with her sight, that she had been prescribed a pair of glasses two weeks before the trial, and that the child had been more active and in high spirits since she had received the glasses. According to the father, the child interacts well with her half sisters and stepbrothers and is very close to the paternal grandmother. He stated that he loves the child with all his heart, and M.M. testified that she loves the child like she is her own.

         The paternal grandmother testified that the father, the father's brother, her foster son, and her two nephews live near Madison and are involved in the child's life. She testified that the mother had stayed with her and her nephew at times when the mother's utilities had been turned off, that another of her nephews had kept the child and taken her to school, and that the father and the father's brother had kept the child at times. S.D.B., the paternal grandmother's cousin, testified that he had lived with the mother at her apartment for six months in 2011, along with his girlfriend at the time, A.P., who, he said, had been present at the apartment "every day, every night" although she had not "technically" lived there the entire six-month period. According to S.D.B., the mother had gone out at night while S.D.B. and A.P. had cared for the child until 2:00 or 3:00 a.m. each night. S.D.B. testified that the mother would sleep late and that he had made the child breakfast and changed her diapers while the mother slept until at least noon each day. He testified that the mother had allowed people she had just met to babysit the child, and, he said, he had felt like he had to keep the child for the child's safety. He stated that he had not paid rent while living at the mother's apartment but that he had paid the electric bill, and that, after he had moved out of the mother's apartment, the electricity had been turned off for three months. S.D.B. stated that, when he had lived with the mother, she had not cooked or cared for the child and that she had not cleaned the apartment.

         A.P. testified that, when she had lived with the mother for three or four months at the end of 2010 and the beginning of 2011, the mother had stayed mostly in her bed or had gone out at night, and that the mother had not taken care of the child. According to A.P., she or S.D.B. had cared for the child on a daily basis during that time, including feeding the child and changing her diapers. A.P. testified that she had continued to care for the child until 2013, although, she said, she had not been living with the mother, and that she had kept the child from Sunday to Friday each week for approximately two years. E.D.L., the father's cousin, testified that the mother had been to his house with the child from time to time to wash clothes and to spend the night, sometimes for weeks or months at a time up until August 2015, when he had been incarcerated for driving under the influence. He stated that he had allowed the visits to continue because he was "looking out" for the child and because the mother's house "was a wreck." He testified that the mother's house had had clothes, food, and ashtrays all over the bedroom; that the bathroom floor had been "coming up" and the toilet was backed up; and that the back doors of the house had not had locks on them.

         The mother denied the testimony of S.D.B. and A.P. indicating that she had stayed out late at night or that she had left the child in S.D.B.'s or A.P.'s care. According to the mother, her most recent employment had ended two years before the trial because of her health conditions, which include asthma, allergies, and eczema, which, she testified, are all exacerbated by living in Alabama. The mother stated that her face, hands, and legs all break out, that she cannot breathe during pollen season, that her face and eyes become swollen, that her asthma flares up, and that she has to use a nebulizer or an inhaler or go to the emergency room in extreme instances. The mother testified that she also has dental issues that will require her to have surgery to replace all her teeth, that it will take anywhere from three months to a year for her to ...

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