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Sylvester v. Cartee

Alabama Court of Civil Appeals

November 9, 2018

Helen Elizabeth Sylvester
v.
Gregory Joseph Cartee

          Appeal from Madison Circuit Court (DR-06-1729.01)

          DONALDSON, Judge.

         Helen Elizabeth Sylvester ("the mother") appeals from a judgment of the Madison Circuit Court ("the trial court") that, among other things, granted her and Gregory Joseph Cartee ("the father") joint physical custody of K.C. ("the child") and declined to award child support following postdivorce modification proceedings.

         Facts and Procedural History

         The mother and the father were divorced on January 19, 2007. Pursuant to the parties' settlement agreement, which was incorporated into the divorce judgment, the mother was granted sole physical custody of the child and the father was ordered to pay $948 per month in child support to the mother.

         On May 6, 2016, the father filed a petition seeking to modify his child-support obligation and to hold the mother in contempt. The father later amended his petition to request a modification of the child's custody. The mother filed an answer and, later, a petition seeking a finding of contempt against the father.

         The trial court held a trial on January 29 and 30, 2018. The child was 12 years old at the time of the trial.

         The father testified that, at the time of the trial, he was employed as an engineer earning $115, 000 annually. The father also testified that he lived with his current wife and their 10-month-old daughter and that they have visitation with the child and with his wife's 8-year-old daughter.

         The father testified that he and the mother divorced when the child was a little over one year old. Before the child started school, the father followed the visitation schedule set forth in the parties' divorce judgment. After the child started school and became involved in extracurricular activities, the father's time with the child increased as he participated in those activities with the child. In particular, the father coached the child's soccer team and helped with his baseball and basketball teams.

         The father testified that his relationship with the mother had been "rocky" and "challenging" and that the mother had not been co-parenting well. The father testified that the mother had enrolled the child in activities without informing him, had made medical decisions about the child without his input, had harassed him, and had refused to allow him certain visitation. The father testified that he believed that the mother had "done a lot to poison" and undermine his relationship with the child. The father testified that the mother had also undermined his disciplinary methods in front of the child. In support of his assertions, the father testified that the mother often degraded him in front of the child and that the mother had told him that the child hates him. The father also testified that he had heard the mother tell the child that the father is mean to him. The mother had sent multiple text messages to the father that were admitted into evidence in which she accused him of various things, including stalking her, being obsessed with her, being a bad father, and ignoring the child.

         The father also testified that the mother had verbally attacked him and his wife in front of the child and had called his wife names and had said other unpleasant things to her. The father offered into evidence audio recordings in which he claimed the mother could be heard engaging in name-calling, making derogatory comments, and "bad-mouthing" him in front of the child. He claimed that the audio recordings demonstrated typical behavior for the mother. In one of those recordings, the mother yelled at the father in front of the child in a parking lot after the child's karate practice regarding the father's plan to have his friend care for the child the following day. The mother involved the child in the argument by asking the child what he wanted. The mother stated that the person the father wanted to leave the child with was the father's "random hookup," and she told the father: "This is a fucking joke." The father responded: "I'm not going to sit here and do this in front of him." The mother also stated, in a loud tone: "If you love our child like I love our child you will bring him to his stepfather which is where he wants to be." The father again told the mother to stop speaking in that manner in front of the child, and the mother, again, asked the child what he wanted to do. The child softly responded, but it is not clear what he said.

         The father testified that the mother had also filed a false report with the local department of human resources regarding the father and had requested that the police do a welfare check when the child was in his custody because she had not received a response for a few hours. The father testified that he believes that the mother's behavior negatively impacts the child.

         According to the father, the child is in the sixth grade and is "significantly underperforming." The father testified that, although the child's final grades had included low B's and some A's, the child had made numerous C's and D's on assignments throughout the school year and that those grades are "way under his potential." The father testified that he had attempted to address those issues with the mother but that she had not been receptive to his concerns. The father asserted that the child had performed more poorly on tests and homework while he was in the mother's care and that "there has been a continual pattern of him not having assignments done that he was supposed to at school and being prepared for tests on days that she has him the night before." The father testified that the mother had sometimes refused to send the necessary materials for the child to study or to work on assignments while at the father's house. The father also testified that the mother had not provided him with copies of report cards or progress reports or with notice of school events.

         The father testified that the child had exhibited behavioral issues in class and had been removed from his usual seat in the classroom and had been made to sit in a different part of class by himself "for bullying other kids or just not paying attention or talking."

         The father testified that the child has a minor medical issue but that he is otherwise healthy. According to the father, the child had been seen by a specialist to address his medical issue and the father had implemented measures to address it, but the mother had not done the same. The father also testified that the mother had begun giving medication to the child without telling the father. The father asserted that the child eats unhealthy food and spends the majority of his time playing video games while at the mother's house.

         With regard to their interactions involving extracurricular activities, the father testified that the mother had previously refused to take the child to a baseball tournament if the father attended, even though the father was helping to coach the team. As a result, the father had watched the child's last baseball game from the parking lot. The following season, the father enrolled the child in a basketball program despite the mother's disagreement, and the mother did not attend any of the child's basketball practices or games.

         The father testified that the mother had refused to allow him to have any extra visitation with the child and had also refused to allow him to exercise his scheduled visitation on multiple occasions. According to the father, the mother had scheduled the child's karate practice for Wednesday nights, which interfered with his visitation, despite having the option of scheduling the practice on five other days. The father testified that the mother had not allowed him to have the child for a fall-break or spring-break visitation since 2015. In addition, the father testified that the mother had threatened to withhold visitation for upcoming events on occasions when the father had not conceded to her various scheduling demands. The father also testified that the mother had often scheduled her family gatherings during the father's visitation periods with the child.

         The father testified that all of those events are negatively impacting the child, his performance in school, and his behavior at school and at the father's house. The father also testified that he had witnessed the child bullying animals at his house, at his wife's family's house, and at his parents' house. The father testified that the child does not care about his grades or finishing assignments and that the child seems emotionally immature for his age. According to the father, he has to "hold [the child's] hand, figuratively speaking, for more things than [he] should have to." The father testified that, because of the child's issues and the mother's behavior toward the father, he had attempted to enroll the child in counseling but that the mother would not agree. Instead, he asserted, the mother told him that if he thinks something is "wrong" with the child he should just bring the child home to her house.

         The father testified that he had initiated this modification action because he wanted the child to

"grow up and become a good man and to be a productive member of society and to have good morals and to not lie and to not end up in prison. ... I don't think that is possible without him maintaining a strong relationship with both of his parents. And I think to have that strong relationship with me, that I feel his mother has been poisoning nonstop, he needs more influence from me and less influence from her. And that means that he needs to be with me more and less with her ...."

         The father testified that he would like sole physical, or at least joint physical, custody of the child.

         The father's wife, Kathleen Rachel Hilt Cartee ("the stepmother"), testified that the father has a very loving relationship with the child and that he puts a lot of thought into planning activities for the child. According to the stepmother, the father sent text messages to the mother in November 2017 regarding the child's school grades but the child had thereafter continued to fail various assignments.

         Pamela Ann Cartee ("the paternal grandmother") testified that the father had never inappropriately disciplined the child. The paternal grandmother also testified that the father had telephoned her on more than one occasion "in tears" about the way the mother had spoken to him in front of the child.

         The mother testified that she and the father had shared a pretty good co-parenting relationship until around 2016. The mother testified that she believed that the custodial and visitation schedule should remain unchanged. The mother denied that she had refused the father any of his scheduled visitation, and she asserted that the father had refused to allow her reasonable telephone access to the child while he is in the father's custody. On one such alleged occasion, the mother said, she contacted law enforcement to do a "welfare check" because the child had contracted poison ivy and she had not received a response from the father or the child for a few hours. The trial court later asked the mother whether she believed that the ...


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