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J.S. v. L.M.

Alabama Court of Civil Appeals

July 14, 2017

J.S.
v.
L.M.

         Appeal from Jefferson Family Court (CS-04-47)

          THOMAS, JUDGE.

         J.S. ("the mother") and L.M. ("the father") are the parents of a child ("the child") who was born in October 2003. The mother and the father were never married to one another; thus, the action between the parents began in the Jefferson Family Court ("the juvenile court") in a proceeding that was assigned case no. CS-04-47 ("the juvenile-court action"). See Ex parte L.N.K., 64 So.3d 656, 657-58 (Ala. Civ. App. 2010) ("[T]he Jefferson Family Court acted as the juvenile court for the Tenth Judicial Circuit."); see also Ex parte T.M., 210 So.3d 614, 615 n.1 (Ala. Civ. App. 2016) ("Although the filings and orders from the court in Calhoun County that are before this court identify the 'Calhoun Circuit Court' as the court in which the alleged father's paternity action was commenced, that action was assigned a 'CS' case number, which indicates that the circuit court was acting as a juvenile court.")

         Although no such order appears in the record, the parties agree that on September 9, 2013, the juvenile court awarded the mother sole physical custody of the child subject to the father's visitation with the child on the first and third weekends of each month ("the visitation provision").[1] The dispute giving rise to this appeal began in 2015 when the mother, who had resided in Birmingham, relocated to Texas. Again, although no order regarding the relocation appears in the record, the parties agree that the father filed a motion objecting to the child's relocation, see § 30-3-160 et seq., Ala. Code 1975; that the mother moved to Texas; that the child remained in Alabama for a period in the care of the mother's parents; but that the child relocated to Texas before the juvenile court entered an order on the father's motion.[2] In December 2015 the mother filed in the juvenile court a motion seeking a modification of the custody order containing the visitation provision, the father filed a motion in opposition to the mother's modification petition, and the father filed a motion, as amended, seeking a finding of contempt against the mother and an order designating how the parties would bear the cost of transportation for visitation.

         On September 28, 2016, the juvenile court conducted a trial at which the parties testified, and the juvenile-court judge interviewed the child in camera. The juvenile court entered a judgment on September 29, 2016, finding the mother in contempt of the visitation provision, ordering that the visitation provision would remain unchanged despite the child's relocation, making the mother responsible for all costs of transportation for visitation, and ordering the mother to pay the father's attorney fees in the amount of $3, 539.98.

         The mother filed a timely postjudgment motion and, thereafter, certain amendments to her motion. Her motion was denied by operation of law, and she filed a timely notice of appeal from the juvenile court to the Jefferson Circuit Court ("the circuit court"), seeking a trial de novo, because, she argued, the record was not adequate for review. See Rule 28(B), Ala. R. Juv. P. That appeal was assigned case no. DR-16-602. The father filed a motion seeking an order transferring the mother's appeal to this court. After determining that the record was adequate for review (see discussion, infra), the circuit court entered an order transferring the mother's timely appeal to this court.

         Taking her issues out of order, the mother seeks our review of whether the circuit court abused its discretion by transferring the appeal to this court and of whether the juvenile court erred by admitting certain exhibits into evidence, by concluding that she was in contempt, by ordering her to pay the father's attorney fees, by declining to modify the child's visitation, by requiring her to pay all the costs of transportation for visitation, by concluding that the father had "prove[d] his case, " and by not conducting a postjudgment hearing.

         Before reaching the merits of the mother's arguments addressed to the propriety of the juvenile court's judgment, we first determine whether the circuit court properly transferred the appeal to this court. Rule 28(B), Ala. R. Juv. P., provides for an appeal from a juvenile court to a circuit court for a trial de novo when the record is inadequate for review by an appellate court. The mother had argued to the circuit court that the record was incomplete, because, she complained: "At the end of the trial in [the juvenile court], the [juvenile] court returned the [mother]'s exhibit, which was offered and introduced and therefore there is no complete record." The circuit court ordered the parties to supplement the record with all the exhibits, and the parties did so. Rule 28(D), Ala. R. Juv. P., provides that a "circuit court may transfer an appeal to another court if it determines that the appeal should be transferred to or should have been brought in that court." The circuit court properly transferred the appeal to this court, and we proceed to consider of the merits of the mother's arguments addressed to the propriety of the juvenile court's judgment.

         At the time of the trial the child was 12 years old. The mother testified that, in 2015, she notified the father that she intended to relocate to Texas, and the father filed a motion objecting to the child's relocation; however, the mother and the child relocated before the father's motion had been addressed by the juvenile court. There is no dispute that the juvenile court eventually entered an order that allowed the child to relocate and that it did not modify the visitation provision. The father testified that, from December 2015 through September 2016, he had spent $3, 240.76 on airline tickets for visitations, in addition to paying $750 per month in child support.

         The parties each offered testimony regarding the frequency of visitation. The mother testified that the child was old enough to enjoy weekend activities at home, to refuse to get in the automobile to go to the airport, and to refuse to board an airplane. Specifically, the mother said that the child had not visited the father on the third weekend of May 2016 because the mother had allowed her to participate in a volleyball tournament. According to the father, after he had purchased an airline ticket, the mother had asked him to cancel the visit, and the child had contacted him to inform him that she wanted to participate in the tournament. The father admitted that he had insisted that the child visit instead because, he testified:

"I explained to [the child] that we cannot -- I have plane tickets. We can't just switch a weekend, you know, at the last minute. And I think it's more important for us to have -- for me to be able to have a relationship and spend time with her than a volleyball tournament."

         However, he said that later that week he had relented. He testified:

"So, me and my wife talked about it and we looked at flights to see what could we do. And the very next weekend was Memorial Day weekend. So, I gave [the mother] -- I gave her an offer and said, hey, okay, we can switch it. But if I'm going to go to all this trouble and I'm going to switch it, then I want Memorial Day. I will take -- we will switch it, but I want the weekend plus Memorial Day for the next weekend. So, yes, we did not want to, but we did offer her to do that."

         There is no dispute that the mother refused to switch the visitation weekends, that the child did not visit the father on the third weekend of May 2016, and that the father had subsequently filed his motion seeking a finding of contempt against the mother. The father testified that he had exercised visitation with the child only when he paid the cost of transportation. For example, he said: "I paid for the beginning of September [2016] visit and not the third weekend. So, I did not see her on that weekend."

         On appeal, the mother argues that certain e-mail messages and certain text messages ("the exhibits") offered by the father, to which she objected, should not have been admitted into evidence.

"'When evidentiary rulings of the trial court are reviewed on appeal, "rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion."' Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 71 (Ala. 2001)(quoting Bama's Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So.2d 29, 32 (Ala. 1998), citing in turn Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165 (Ala. 1991))."

I.L.C. v. J.D.B., 203 So.3d 88, 93 (Ala. Civ. App. 2016). According to the mother, the exhibits contained inadmissible hearsay, were incomplete, were based on an improper predicate, and lacked a proper foundation.[3] However, even if we concluded that the juvenile court had abused its discretion by admitting the exhibits, the error would be harmless pursuant to Rule 45, Ala. R. App. P., because other evidence presented amply supports the juvenile court's determination that the mother had failed or refused to comply with the visitation provision. The mother herself testified that she had not required the child to visit the father on the third weekend of May 2016. Moreover, nothing in the judge's oral statements or in the judgment indicates that the juvenile court relied on the exhibits. Therefore, the mother has failed to demonstrate that she was harmed by the evidentiary rulings of the juvenile court.

         Next, the mother argues that the juvenile court erred by finding her in contempt. The juvenile court did not specify in its judgment the type of contempt in which it found the mother. The judgment reads: "The [mother] is held in contempt for violation of the court ordered visitation. Sentenced to 90 days suspended." The juvenile-court judge indicated that she had relied on the father's testimony that he had been willing to work around the volleyball tournament but that the mother would not compromise. At the close of all the testimony, the juvenile-court judge orally stated that she had concluded that the mother was in contempt because she had not allowed the father to "completely exercise his visitation rights, " and the juvenile-court judge said:

"I find [the mother] in contempt of the court order, suspended sentence. And if this happens again, then, of course, she has to come back and serve ninety days. So, I will -- I'm sure she will make sure that ...

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