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Hughes v. Hughes

Alabama Court of Civil Appeals

October 27, 2017

Jerome W. Hughes
v.
Valeriya M. Hughes

         Appeal from Houston Circuit Court (DR-13-900510.02)

          MOORE, Judge

         Jerome W. Hughes ("the father") appeals from a judgment of the Houston Circuit Court ("the trial court") entered in a contempt action filed against him by Valeriya M. Hughes ("the mother"). We affirm the judgment in part and reverse it in part.

         Procedural History

         The parties have previously appeared before this court. See Hughes v. Hughes, 218 So.3d 349 (Ala. Civ. App. 2016). In Hughes, this court recited the procedural history of the case as follows:

"The parties were divorced by a judgment entered by the trial court on August 25, 2014. The divorce judgment incorporated a settlement agreement entered between the parties, which provided, among other things, that the parties would share joint legal custody of the parties' child, that the mother would have 'primary physical custody'1 of the parties' child, and that the father would have specified visitation. Additionally, the settlement agreement provided that the father would pay no child support but that he would be responsible for all costs associated with the child's private-school education. The settlement agreement further provided that each parent would give the other parent the right of first refusal if he or she anticipated the child being left with someone other than a parent for more than one night; that, if either parent would be traveling more than 100 miles from Dothan, he or she would give the other parent 48 hours' notice of the travel plans; and that neither parent would have overnight guests of the opposite sex while exercising custody or visitation with the child.
"On October 14, 2014, the mother filed a petition for a rule nisi, asserting, among other things, that the father had told her that he intended to remove the child from the state and that he had violated the parties' settlement agreement by allowing his girlfriend to stay overnight while he was exercising his visitation with the child.2 The mother sought an emergency hearing and an order directing the Sheriff of Houston County to assist her in obtaining custody of the child.
"On October 17, 2014, the father filed a response to the petition for a rule nisi as well as a petition for immediate temporary custody of the child. On that same date, the father filed with the trial court the affidavits of Doug Bauer, the headmaster at Ashford Academy, where the child was attending school, and Allyson Falgout, the child's teacher at Ashford Academy. On October 28, 2014, the father filed a motion for an instanter order of temporary custody and a request for an immediate hearing; the father attached to his motion the affidavit of Jennifer Campbell, a counselor at Ashford Academy. On that same date, the trial court entered an order setting a pendente lite hearing for November 10, 2014. The father filed a 'notice' to the trial court on October 30, 2014, informing the trial court that the child had been dismissed from Ashford Academy because of the behavior of the mother and her new husband; he attached to his notice a letter from Ashford Academy indicating that the child had been dismissed from the school. On November 3, 2014, the father filed a motion seeking the appointment of a guardian ad litem to represent the child's interests; the trial court granted that motion, noting that the father would bear all costs of the guardian ad litem.
"On November 9, 2014, one day before the scheduled pendente lite hearing, the father filed a notice of his intent to call witnesses at the pendente lite hearing and requested the presence of a court reporter at that hearing; the trial court entered an order denying that motion on November 10, 2014. On November 20, 2014, the trial court entered a pendente lite order, noting that all provisions in the settlement agreement of the parties that had been incorporated into the divorce judgment were to be followed unless modified by the November 20 order. The trial court also ordered the parties to complete parenting classes. It further ordered that the child was to be immediately re-enrolled at Ashford Academy, that the child was not to be withdrawn from Ashford Academy, and that the mother was to be respectful to all employees of Ashford Academy and was to follow the policies and procedures of the school at all times. The trial court ordered the mother not to direct and/or allow her new husband to speak on her behalf to employees at Ashford Academy regarding the child and further ordered the mother not to direct or influence the child to refer to the father as 'Jay, ' noting that the father is the child's father and should be referred to as such. The trial court also ordered the parties 'not to influence the minor child in negative ways.'
"Also on November 20, 2014, the father filed a 'petition for modification in opposition to notice of change of residence.' The father asserted, among other things, that the mother had informed him that she intended to move with the child to Rhode Island on December 21, 2014. The father requested sole physical custody of the child or, in the alternative, an order preventing the mother from removing the child from Alabama. The father also filed that same day a petition for a rule nisi, asserting, among other things, that the mother had failed to give the father the right of first refusal to care for the child when the child was left with third parties for more than one night, that she had failed to give the father notice when she traveled more than 100 miles from Dothan, that she had deprived the father of his Wednesday night visitation with the child on October 22, 2014, that she had had guests of the opposite sex overnight during her custodial periods with the child, and that she had made disparaging comments about the father to the child, all in contravention of the parties' settlement agreement incorporated into the divorce judgment.
"On January 14, 2015, the mother filed a motion seeking an emergency hearing following the father's alleged arrest. The mother requested, among other things, that any visitation the child might have with the father be supervised. The mother filed an amended motion on that same date requesting the issuance of a protective order keeping the father away from the child; the mother asserted that the father would abscond with the child. On January 15, 2015, the trial court set the matter for a hearing on January 27, 2015. On February 18, 2015, the trial court entered a temporary order modifying the father's visitation with the child, instructing that, among other things, the father's parents were to supervise his visitation with the child and the child was not to be taken to the father's home at any time.
"On May 15, 2015, the father filed another 'petition for modification in opposition to notice of change of residence.' The father asserted in his petition that the mother had informed him that she intended to move to Auburn with the child. The father sought sole physical custody of the child or, in the alternative, an order preventing the mother from removing the child from Houston County. The mother filed an answer to the father's petition on May 28, 2015. On that same date, the mother filed a counterclaim, seeking an award of attorney's fees from the father. The father later filed a response to the mother's counterclaim.
"On June 9, 2015, the father filed an instanter motion to vacate the trial court's February 18, 2015, temporary order and to reinstate the original custody/visitation order. Also on June 9, 2015, the trial court set the father's instanter motion for a hearing on June 30, 2015. On June 30, 2015, the trial court reset the hearing for July 28, 2015. The father filed a motion on June 29, 2015, seeking, among other things, a transfer of the child's custody to the father. At the July 28, 2015, hearing, as indicated in note 2, the trial court consolidated all the different actions involving the parties into a single action. At the outset of the July 28, 2015, hearing, the trial court stated that it intended to hear the father's petition to modify custody at that time. Both parties presented evidence, including testimony, at the hearing, at the end of which the trial court indicated that it was taking the case under advisement and entering an order for a 90-day trial period and noted that no final judgment was being entered in the case. On August 25, 2015, the trial court scheduled the case for a final hearing on November 3, 2015.
"A proposed temporary order was submitted to the trial court on September 17, 2015, and, on September 18, 2015, the trial court entered a 'temporary order' allowing the mother to move to Auburn with the child, allowing the father unsupervised visitation with the child, and modifying the father's visitation times with the child, among other things. Following the November 3, 2015, hearing, at which the trial court declined to allow the father to submit additional evidence, the trial court entered a judgment on November 10, 2015, awarding the parties joint legal custody of the child, with the mother having sole physical custody of the child. The trial court awarded the father visitation with the child three out of every four weekends per month beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on Sunday. The trial court further stated that 'the court having been informed the minor child is going to public school, the [father] is to pay child support in the amount of $350.00 per month' beginning December 1, 2015. The father filed his notice of appeal to this court on December 15, 2015.
" _______
"1 The parties and the trial court refer to the arrangement as 'primary physical custody.' Because that is an incorrect term unrecognized in Alabama law, we use the term 'sole physical custody' throughout this opinion to conform to the language used in § 30-3-150 et seq., Ala. Code 1975.
"2 Some of the filings in the record on appeal were made in case number DR-13-900510, case number DR-13-900510.01, case number DR-13-900510.03, or case number DR-13-900510.04. At the July 28, 2015, hearing, the parties agreed to consolidate 'any and all matters' into case number DR-13-900510.02, and the trial court thereafter consolidated the cases. Because all the cases were consolidated by the trial court, in this opinion we do not identify in which case each document was filed in the trial court."

218 So.3d at 349-52. This court dismissed the father's appeal as having been taken from a nonfinal judgment because, we concluded, the trial court's November 10, 2015, judgment failed to adjudicate the petitions for a rule nisi filed by both parties, and, in addition, we noted that the trial court had failed to address the mother's request for an award of attorney's fees. Id. at 352-53.

         Following this court's dismissal of the appeal, the father filed, on September 14, 2016, a motion in the trial court requesting a hearing and for the trial court to address all claims presented or, in the alternative, to certify its November 10, 2015, judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. On February 22, 2017, the trial court entered a final judgment awarding the parties joint legal custody of the child; awarding the mother sole physical custody of the child, subject to the father's visitation three out of every four weekends per month; ordering the father to pay child support in the amount of $350 per month; and denying the petitions for a rule nisi filed by the parties, the mother's request for attorney's fees, and any remaining relief sought that was not addressed in that judgment. The father filed his notice of appeal to this court on March 17, 2017.

         Facts

         The father testified at the July 28, 2015, hearing that the mother had made it difficult for him to visit with the child and that she had withheld his visitations and had failed to meet in the meeting places designated by the trial court. He testified that the mother is belligerent, aggressive, and uses profanity in front of the child and that she degrades and belittles the child. The father stated that the mother had yelled and screamed at him and his parents as well. According to the father, he and the mother had agreed that, in lieu of child support, he would pay for the child's private schooling, and, he said, he had done that and would continue to do so because it is important to him that he provide the child with the best opportunity to get an education and become a successful adult. The father testified that he is financially stable, that he lives in a two-bedroom house in Cottonwood, and that the child would have his own bedroom in the father's house. He stated that he loves the child. According to the father, the mother has remarried. He stated that he did not want the child to move to Auburn with the mother because he would not get to see the child and because, he asserted, the mother is trying to alienate him from the child.

         Allyson Falgout, the child's K-5 teacher at Ashford Academy for the 2014-2015 school year, testified that she had had a lot of interaction with the mother and the mother's husband. She testified that, on one occasion, the mother had exhibited behavior at the school that had required that the police be called. Falgout stated that she had observed the mother yelling at the child, which, she said, had caused the child to cry; she testified that, in her opinion, the mother's constant yelling was verbally abusive to the child. She also testified that she had had to contact the father to calm the child down when the child had had behavior issues. According to Falgout, the child had seemed less uptight when the father would take the child to school instead of the mother. She testified to an incident at which the mother and her husband had joined the child on a field trip and the mother's husband had drank alcohol during the trip; she testified that both she and other parents on the filed trip had felt the husband's actions were inappropriate. Falgout testified that she likes the mother, but not her husband. She stated that the mother's husband had telephoned her and told her not to ask the child another question concerning the child's life, that he had been very rude, and that the conversation had upset her.

         According to Falgout, she had had conferences with other school employees regarding the mother's conduct, which included entering the classroom, being "pushy, " and demanding things from Falgout. She testified that the mother had overruled her in the classroom with regard to the child, but she admitted that the mother's demands always had concerned what the mother considered to be in the child's welfare. Falgout stated that, at one conference she had conducted, the mother had told her that she wanted the child to call her husband "Daddy" and to call the father "Jay" and the child had confirmed that to her as well. Falgout testified that the child was open with her and had often told her that he loved the father. She stated that she considered the child and the father to be close and that, in her opinion, it would be detrimental to move the child away from the father. Falgout added that Ashford Academy, where the child had been attending school, was closing.

         Doug Bauer, the headmaster of Ashford Academy from 2014 to 2015, testified that he had interacted with the mother and the child. He testified that, on one occasion, he had been involved in a confrontation with the mother at the school because she had wanted to pick up the child on the father's visitation day, which had resulted in the mother's contacting the police. According to Bauer, on several occasions, the mother had hidden in the teacher's lounge at the school so that she could check the child out of school after the father had dropped the child off at school. He stated that the mother had yelled and screamed at him on more than one occasion with regard to issues between her and the father. Bauer stated that he did not have a very good relationship with the mother, but he had never had any problems with the father. Bauer testified that, on one occasion, the mother had advised him that she was going to take the child out of school and take him to Rhode Island and told Bauer not to tell the father. He stated that he had expressed his concern that the child was not doing well in school and that additional time in Rhode Island would be detrimental to the child, but the mother had indicated that she intended to move to Rhode Island with the child so it was a moot point. Bauer testified that the father had been very involved in the child's life. He stated that the mother had made attempts to catch the child up with regard to his grades after he had held a meeting about the mother's conduct. According to Bauer, the mother's husband had telephoned him telling him to "stay out of it" and had been abrasive to him, and, as a result, Bauer had hung up the telephone.

         Jennifer Campbell, a child and family therapist who was the counselor at Ashford Academy during the 2014-2015 school year, testified as an expert. She stated that she had met with the child and had had counseling sessions with him throughout the school year. According to Campbell, the child had expressed that he loves the father. She stated that, in her opinion, moving the child to Auburn with the mother would be detrimental to the child because, she believed, the child had been used and brainwashed by the mother. Campbell testified that the things the mother tells the child to believe or say were confusing and hurting the child. She stated that the child needs to feel safe and secure and that he should be with the father for stability. According to Campbell, it was apparent to the child that he was being tugged back and forth, that the mother constantly talks badly about the father, and that the mother had been trying to play games and keep the child from the father. Campbell testified that the child had been very upset in the beginning of the school year because the mother had made it clear to the child that her husband would be his daddy rather than the father and because the mother would get very upset with the child if he failed to comply with the instruction to call her new husband "Daddy." She testified that the child had drawn a picture that showed the father off to the side and that the child had explained that he was going to be moving with his new daddy and his mommy far away from the father so that he would not be seeing the father anymore; she testified that the child's disclosures had been very alarming to her. She stated that she had seen repeatedly that the mother was trying to convince the child that the father is not the child's real father and that the father is a horrible person, which Campbell described as brainwashing. Campbell testified that the mother had told the child that the father is a bad person. Campbell stated that the mother's having taken a parenting class was a step in the right direction and that the parenting class the mother had participated in is a good program.

         Louise Hughes, the child's paternal grandmother, testified that, in May 2015, she and her husband had attended the child's graduation at Ashford Academy and that the mother had used profanity toward her at the ceremony. Hughes stated that the mother's husband had approached her and had stated that, if she never spoke to the father, he might let her and her husband see the child a couple of times once the father goes to prison. Hughes testified that she had seen the mother hit the child because the child would not eat as fast as she wanted him to eat and that the mother had refused to allow her to pick up the child pursuant to the trial court's temporary order. According to Hughes, the mother had yelled profanities at her in front of the child during a visitation swap. She testified that both the mother and her husband have bad tempers and that she did not feel safe with them having custody of the child.

         Seth Brooks, an Assistant District Attorney for the 20th Judicial Circuit of Alabama, testified that he knows the father through cases he had been involved in, including a case involving a drug charge against the father that had been dismissed and a case regarding forfeiture of canines. Brooks stated that the drug charge against the father had been dismissed to expedite the proceedings involving the canines, both for economical reasons and for the safety and well-being of the canines. He testified that he had never looked at the evidence with regard to the dismissed drug charge, and, therefore, he did not have any personal knowledge as to whether there had been any drugs in the father's house. He testified, however, that he had filed a complaint with the Alabama Board of Private Investigators against the mother's husband and that criminal charges possibly could be brought against the mother's husband because he had misrepresented himself as a private investigator in an attempt to speak with Brooks about the drug case involving the father.

         Jim Smith, the public-safety director at the Cottonwood Police Department, testified that he had participated in executing a search warrant at the father's residence pursuant to the father's arrest on June 16, 2015. He testified that the house had been full of dog feces and that the father had had several dogs living inside the house, including some that appeared to have been neglected. According to Smith, the father's house had been in disarray and he had found suspected controlled substances, although lab tests had not come back to confirm that at the time of the hearing. Smith testified that he had found firearms in the father's house where the child could reach them and that he had also found a "suppressor, " or a silencer, which fit a gun found in the father's house. Smith stated that he had found glass pipes in the house, some of which contained burn marks and had been washed, and that those glass pipes would be classified as burn pipes for smoking drugs, commonly marijuana. He admitted that one could also smoke tobacco out of those devices. Smith testified that the dogs had been seized because of their emaciated condition ...


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