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King v. Tillman-Gilbert

Alabama Court of Civil Appeals

August 10, 2018

TaMarkus J. King
v.
Kimberly Tillman-Gilbert

          Appeal from Elmore Circuit Court (DR-15-7)

          PITTMAN, JUDGE.

         TaMarkus J. King ("the father") appeals from a judgment of the Elmore Circuit Court ("the circuit court") awarding him limited visitation with C.T. ("the child"), a boy to whom Kimberly Tillman-Gilbert ("the mother") gave birth in 2007. We reverse and remand.

         In late 2006, the mother and the father had a three-month sexual relationship during which the child was conceived. The mother and the father never married. The father subsequently married another woman and had two daughters by her, and the mother subsequently married another man and had three children by him. In 2008, the mother brought a child-support action against the father in the Perry Juvenile Court ("the juvenile court"); however, the juvenile court dismissed that action in March 2010 "due to [the mother's] refusal to abide by any orders of [the juvenile court]."

         In January 2015, when the child was seven years old, the father brought the present action against the mother in the circuit court, seeking visitation with the child. In April 2016, the circuit court entered a pendente lite order determining that the father was the biological father of the child; awarding custody of the child to the mother; ordering the father to pay child support in the amount of $451 per month commencing May 1, 2016; ordering the father not to "directly or indirectly state to [the child] that [the father] is [the child's] father; and ordering the mother and the father "to establish a meeting (play date) for the children to all get together, and know one another," with "no restrictions as to who may come."

         In May 2016, the father sent the circuit court a letter reporting that he could communicate with the mother only through Facebook, a social-media Web site; that he had attempted to contact the mother through Facebook twice in April and once in May about scheduling a play date; and that the mother had failed to respond. The circuit court treated the father's letter as a motion to find the mother in contempt and ordered the mother to appear and show cause why she should not be held in contempt for violating the circuit court's pendente lite order. After several continuances, the circuit court held the show-cause hearing. Thereafter, in September 2016, the circuit court entered an order finding that the play dates required by the pendente lite order had not occurred, ordering "the parties ... to meet for 3 hours beginning at 12:00 noon on 9-10-16 and 10-1-16 at [a designated restaurant] for the parties' child to be with and communicate with his father," and setting a hearing in October 2016 to review the parties' compliance with that order. Following that compliance hearing, the circuit court entered an order finding that the parties were in compliance.

         In December 2016, the father filed a motion asking the circuit court to set a final hearing in the action. In response, the circuit court scheduled a final hearing in February 2017; however, that hearing was subsequently continued. In March 2017, the circuit court held another compliance hearing. Thereafter, the circuit court entered an order finding that the parties were in compliance and noting that the child still did not know that the father was his biological father and thought that the mother's husband was his father.

         The circuit court commenced a final hearing in May 2017 and concluded it in August 2017. After the final hearing was concluded, the circuit court, in August 2017, entered a final judgment providing "that the parties have been exercising a play-date visitation schedule, whereby the parties and their children appear at a previously [designated] restaurant for the children and parents to see and visit with one another"; ordering that the parties were to continue to adhere to that play-date visitation schedule; ordering that the father was to continue to adhere to the provision in the pendente lite order prohibiting him from informing the child of the father's paternity; and ordering that the father was to continue paying child support in the amount of $451 per month.

         The father timely filed a postjudgment motion challenging the circuit court's judgment insofar as it limited his visitation and prohibited him from informing the child of the father's paternity. Following a hearing on the father's postjudgment motion, the circuit court entered an order amending the judgment to specify that the monthly play dates were to occur on the last Saturday of each month but otherwise denying the relief sought by the father. The father then timely appealed to this court.

         On appeal, the father argues that the circuit court erred in limiting his visitation because, he says, one three-hour play date per month does not afford him sufficient time with the child and because, he says, allowing the mother and her husband to attend his visits with the child has resulted in de facto supervised visitation because the mother and her husband have attended every play date. He also argues that the circuit court exceeded its discretion in prohibiting him from informing the child of the father's paternity.

         The father acknowledges that "[a] trial court has broad discretion in determining the visitation rights of a noncustodial parent" and that "its decision in this regard will not be reversed absent an abuse of discretion," Carr v. Broyles, 652 So.2d 299, 303 (Ala. Civ. App. 1994); however, he asserts that, under Alabama law, "[a] noncustodial parent generally enjoys 'reasonable rights of visitation' with his or her child[]," Pratt v. Pratt, 56 So.3d 638, 641 (Ala. Civ. App. 2010) (quoting Naylor v. Oden, 415 So.2d 1118, 1120 (Ala. Civ. App. 1982)). He acknowledges that a trial court may restrict a noncustodial parent's visitation to protect a child from conduct, conditions, or circumstances surrounding the noncustodial parent that endanger the child's health, safety, or well-being; however, he asserts that the circuit court had no evidence before it indicating that the father's conduct, conditions, or circumstances posed a danger to the child's health, safety, or well-being. To the contrary, the father argues that the undisputed evidence indicated that he is willing and able to care for the child; that he has a job; that he has been married for seven years; that he has two daughters, who are the child's half sisters; and that he is eager to form and maintain a meaningful parent-child relationship with the child. The mother's opposition to the father's being awarded "standard" visitation was based solely on her contention that the father had not come forward to assume the responsibilities of a parent earlier in the child's life. However, she admitted that the father had sought visitation in the child-support action she had brought in 2008; that, in that child-support action, she would agree only to the father's being awarded the limited, de facto supervised visitation that was later awarded the father by the circuit court in the pendente lite order entered in the present action; that the father had been unwilling to settle for such limited visitation; and that the juvenile court had dismissed the child-support action before ruling on the father's visitation. The record is clear that the mother has never been willing to facilitate or encourage a relationship between the father and the child. For example, she testified:

"Q. [By the father's counsel:] Let me ask you since these visits have been established, what have you done to make sure that [the child] feels comfortable around [the father]?
"A. I have brought him to the visitations.
"Q. Did you explain to him that he was there to see [the father]?
"A. The Court documentation does not say that he is there to come see [the father]. The Court documentation says play dates.
"Q. So as far as you're concerned, you just took [the child] there to just eat and ...

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