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Wells v. Tankersley

Alabama Court of Civil Appeals

August 11, 2017

Melissa Tankersley Wells
Wesley Tankersley

         Appeal from Cullman Circuit Court (DR-13-900388.02)


         Melissa Tankersley Wells ("the mother") and Wesley Tankersley ("the father") were divorced by a November 2013 judgment of the Cullman Circuit Court ("the trial court"). The divorce judgment, among other things, awarded the mother sole physical custody of the minor child born of the parties' marriage, subject to the father's rights of visitation. That divorce judgment was based upon an agreement reached by the parties.

         Sometime later, the parties reached another agreement, which formed the basis for a January 2015 modification judgment that increased the amount of time the father could exercise visitation with the child. Although that January 2015 modification judgment made no change with regard to the nature of the parties' custody, it is undisputed that the increased visitation awarded to the father as a result of that judgment meant that the parties shared almost equal parenting time with the child.

         In November 2015, the father filed a petition seeking to modify custody of the child and seeking an award of sole physical custody. The mother answered and counterclaimed, seeking to reduce the father's visitation with the child and also seeking an increase in the father's child-support obligation.

         The trial court conducted an ore tenus hearing on November 3, 2016. On November 7, 2016, the trial court entered a judgment in which it, among other things, modified custody to award the father sole physical custody of the child and ordered the mother to pay child support. In that November 7, 2016, modification judgment, the trial court also awarded the mother visitation with the child, but it placed restrictions on that visitation award until the mother attended a domestic-violence class and her new husband attended anger-management classes. Although the trial court did not explicitly address the mother's counterclaims seeking a reduction in the father's visitation and an increase in an award of child support, those requests are incompatible with the relief granted by the trial court, and, therefore, we conclude that those claims were implicitly denied. Wellborn v. Wellborn, 100 So.3d 1122, 1126 (Ala. Civ. App. 2012); J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d 381, 384 (Ala. Civ. App. 2013). The mother filed a postjudgment motion, which the trial court denied. The mother timely appealed to this court.

         The evidence from the ore tenus hearing indicates the following facts. The father testified that the parties married in May 2000, and their child was born in March 2011. The parties divorced in November 2013. At the time of the November 3, 2016, hearing on the merits of this action, the child was five years old and had recently started kindergarten.

         The father testified that, following their divorce in November 2013 through June 2015, he and the mother had amicably co-parented the child. The record indicates that, in June 2015, the mother and the child began to live with the mother's then boyfriend, Calvin Dwight Wells ("Wells"). The father stated that, thereafter, he and the mother stopped communicating as well as they had before her relationship with Wells.

         The father testified that, in the spring of 2015, he and the mother had planned for the child to attend a school close to the father's house so that he could pick up the child after the father's workday ended at 3:00 p.m. However, the mother, on June 22, 2015, withdrew the child's application for enrollment in that school, and she later enrolled the child in another school that was closer to the mother's home. The father stated that, at approximately the same time, the mother lost her job. The mother denied that she was fired from that employment, and she answered in the negative the father's questions regarding whether Wells had played a part in the termination of her employment. However, the father submitted into evidence text messages between the mother and him that indicated that the mother believed that Wells had interfered in her employment at some point.[1]

         The father testified that, during the fall of 2015, the mother temporarily moved out of Wells's home on two occasions and that, on both occasions, she had asked the father to take the child for several days. The father testified that the mother told him that Wells had "kicked her out" and that Wells was controlling and verbally abusive. According to the father, the mother once told him that Wells had "flattened" the tires on her vehicle. The father also stated that the mother had told him that Wells had referred to the child as a "brat" and that the child had to stay in her room a lot in the home the mother and the child shared with Wells.

         The mother testified that she had left Wells's home only once, in October 2015 and that she had done so on her own initiative. The mother testified that she moved in with Wells in June 2015 and that, at that time, Wells's three oldest children were living with him. She stated that the stress of that living situation caused her to leave for a short period in October 2015. She denied that Wells had ever kicked her out of the house or that he had been abusive. The mother also denied that she had told the father that Wells was controlling or abusive. The mother testified that she had lived with her mother ("the maternal grandmother") for a few weeks before returning to Wells's home.

         In April 2016, the mother and Wells were involved in a confrontation. The father testified that the mother told him that she heard Wells slapping the child on the thigh and that she had attempted to intervene on behalf of the child. According to the father, the mother told him that, when she did so, Wells choked her and pushed her to the floor and that she and the child ran to a neighbor's house for help. The father said that the mother told him that she had been frightened that Wells would kill her during that incident.

         Following that incident, the mother filed in the trial court a petition for protection from abuse against Wells. In that petition, the mother stated that on April 10, 2016, Wells had "grabbed [her] hair and face, leaving multiple scratches, " and that Wells had "threatened to kill [her] if [she] ever had the police involved." In that petition for protection from abuse, the mother further alleged:

"[Wells] slapped me in the face [five] days prior to this incident in front of my child. He left a very large red handprint on the left side. He has also pulled large quantities of my hair out during a verbal disagreement. In January, he shoved me over a chair and bit my left cheek. He constantly threatens to hit me and tells me I need a man to put me in my place."

         The mother did not prosecute the protection-from-abuse action, and it was dismissed. At the hearing on the merits of this custody action, the mother denied that Wells abused her. When questioned about the details of the above-quoted paragraph contained in her protection-from-abuse petition, the mother stated that Wells had unintentionally slapped her in reaction to her having surprised him by hitting him with a towel. The mother admitted that, during one confrontation between Wells and her, Wells had bitten her face. The mother stated that she was unable to recall the details of another incident in which she had alleged that Wells had pulled out some of her hair. With regard to that incident, she stated that Wells had reacted when he had decided their disagreement should end but she would not stop arguing; she stated that she probably should have left Wells alone. The mother denied telling the father that Wells had been abusive toward her.

         With regard to the April 10, 2016, incident, in her testimony before the trial court in this action, the mother denied that Wells had hurt the child. She stated that she intervened on the child's behalf by running at Wells "aggressively, " but she denied that Wells struck her when she did so. The mother stated at the hearing on the merits of this action that she did not believe that she needed protection from Wells and that the child and Wells had had a "good relationship up until--until the end."

         Regardless, following the April 10, 2016, incident, the Cullman County Department of Human Resources ("DHR") instituted a safety plan pursuant to which the mother agreed that the child would not be in the presence of Wells or the mother's brother.[2] The father filed a motion for pendente lite custody of the child in this modification action, and the trial court conducted a pendente lite hearing on April 21, 2016. On April 22, 2016, the trial court entered a pendente lite custody order based on an agreement reached by the parties. That April 22, 2016, order directed, among other things, that the parties abide by the January 2015 custody-modification judgment, with the proviso that the mother keep the child out of the presence of Wells and her brother.

         The record contains a statement, handwritten and signed by the mother, dated April 28, 2016, in which the mother stated: "I, Melissa Tankersley, agree to give Wesley Tankersley full custody of our daughter ... if I get back in a relationship with [Wells]." The father testified that the statement was the mother's idea and that she wrote and signed it voluntarily. The mother testified that she signed that April 28, 2016, statement after the "temporary hearing" in this action because she felt that if she did not, the father would "do anything" to take custody of the child from her. We note that nothing in the record indicates that the trial court considered that handwritten statement to be binding, but, rather, it appears that it was treated as evidence of the parties' interactions.

         Within a few days of signing the April 28, 2016, handwritten statement, the mother reunited with Wells, and she became engaged to him in June 2016. The mother discovered that she was pregnant with Wells's child in August 2016, and it appears that they married soon after that discovery, although the date on which the marriage occurred is not set forth in the record.

         The mother testified that she moved into a rental home owned by Wells that is located across the street from Wells's home. She testified that she lives in that rental home when the child is in her custody but that she lives with Wells during periods when the child is with the father.

         The mother testified that she wanted the restriction that the child not be around Wells removed. She stated that she did not feel that Wells had physically abused her. The mother further testified that she believed that Wells had changed dramatically in the months between the April 10, 2016, incident and the November 3, 2016, hearing on the father's custody-modification petition. The mother attributed that change to Wells's working "within himself"; she admitted that he had not attended counseling or anger-management sessions. The mother testified that she saw no problem with Wells being around the child. The mother also alleged that the father had been aggressive toward her during their relationship. She also testified ...

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