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Ex parte J.G.

Supreme Court of Alabama

March 22, 2019

Ex Parte J.G.
B.G. In re: J.G.

          Tuscaloosa Circuit Court, DR-14-900003.01; Court of Civil Appeals, 2160059


          PER CURIAM.


          Parker, C.J., and Shaw, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur.

          Bolin, Wise, and Sellers, JJ., dissent.

          BOLIN, Justice (dissenting).

         J.G. ("the mother") petitioned this Court for a writ of certiorari to review the Court of Civil Appeals' decision affirming the judgment of the Tuscaloosa Circuit Court ("the trial court"), which modified custody of two children born of her marriage to B.G. ("the father"). Because I believe the guardian ad litem exceeded his authority in filing a petition for custody in this matter, I dissent from quashing the writ.

         Facts and Procedural History

         The parties are both German citizens; they were married in 2007 in Germany. Two children were born of the marriage in 2007 and 2010, respectively. In 2010, the parties moved to the United States. In 2013, the mother learned that the father had hired prostitutes, and on January 5, 2014, the mother filed for divorce. On February 25, 2014, the parties entered into an agreement pending their divorce, which provided, in pertinent part, that the parties would have joint legal custody of the children, with the mother having sole physical custody. The agreement further provided:

"INTERNATIONAL VISITS: Both parents and children are German citizens and have family and friends in Germany. When planning international travel both parents agree to inform the other of their intent to visit and the dates the visits are to take place, within fifteen (15) days of the scheduled visit, unless the visit is due to an unforeseen emergency, such as a family death. The children's passports will be readily available to the parent making the visit. The visit shall not interfere with regular school attendance, unless the visit is of an emergen[cy] nature, such as a family death. Further, any non-custodial weekend visit missed by the Father shall be made up at his request on weekends that the children would normally be scheduled with the Mother."

         On July 17, 2014, the trial court adopted the parties' agreement as a pendente lite order. The order provided that the parties were to work together to keep the children's German passports and other travel documentation valid and also gave the mother 30 days to vacate the marital residence.

         On July 23, 2014, the police were called to the marital residence while the mother was moving out. The father was arrested for domestic-violence harassment, a violation of § 13A-6-132, Ala. Code 1975.[1]

         On July 30, 2014, the mother's attorney notified the father's attorneys that the mother had learned of the terminal illness of an immediate family member requiring surgery, and she wanted to take the children to Germany. The mother's attorney considered the relative's impending death an emergency pursuant to the parties' pendente lite agreement. The attorney stated that the children would be returning to Tuscaloosa before school started. Also on July 30, 2014, the father filed a "Verified Petition for Contempt and Objection to the Plaintiff's move to Germany under the Alabama Relocation Act and Ex Parte Motion for an order enjoining the parties from removing the minor children from the State of Alabama Pending a final hearing." On August 18, 2014, the trial court appointed a guardian ad litem for the children.

         On August 19, 2014, the mother and the children went to Germany. On September 10, 2014, the trial court ordered the mother to return with the children to Tuscaloosa by October 3, 2014, and, in the event that they did not return, the trial court ordered the mother to appear and to show cause why she should not be punished for failing to comply with the order. The mother's counsel appeared at a hearing on the show-cause order held on October 6, 2014. On October 15, 2014, the trial court issued a writ of arrest for the mother based on her failure to appear. On December 18, 2014, the trial court recalled its writ of arrest after the mother and children returned from Germany. While the underlying divorce action was pending, the guardian ad litem filed a motion asking the court to order that the children undergo psychotherapy, requesting that Dr. Kathy Ronan be appointed as the therapist.

         On March 16, 2015, the mother notified the father that she intended to relocate to Germany if she was awarded permanent custody of the children. On March 27, 2015, the father filed a verified objection to the mother's proposed relocation to Germany. He asked the court to grant him custody of the children pending a final hearing on the parties' divorce proceeding.

         On July 21, 2015, the guardian ad litem filed a motion to release funds for an expert witness. In his motion, the guardian ad litem noted that the trial court had a hearing scheduled for August 3, 2015. The guardian ad litem asked to be allowed to use funds paid into his trust account by the father to pay for the testimony of Dr. Ronan at the hearing regarding the issues of custody and visitation.

         On August 3, 2015, the trial court held a hearing on the pending motions. The trial court stated that no final judgment had been entered in the divorce proceeding and that the court intended to adopt the parties' settlement agreement as a final judgment. The trial court stated that it was denying without prejudice anything filed in the original divorce proceeding. The trial court stated: "So, the parties can pursue anything they want to pursue that they have filed in the original case number that's denied without prejudice and you can petition the Court in another action or enforce or whatever you intend to do." The trial court then stated that the mother's request to relocate and the father's objection to her relocation would remain pending. The court then heard testimony from the mother regarding her relocation request. The trial court ended the hearing before the mother had presented all of her evidence regarding relocation. The trial court stated that the hearing would be reset to allow the mother to call Elizabeth Obradovich, a family friend, to testify.

         On August 7, 2015, the trial court entered a final judgment of divorce. The final judgment provided that the parties would share legal custody of the children and that the mother would have sole physical custody. The father did not file any postjudgment motions, nor did he appeal from the final judgment of divorce.

         On October 16, 2015, the guardian ad litem filed a petition to modify custody, alleging that the mother had engaged in "programming" and "parental alienation" of the children. The guardian ad litem asserted that the alienation had resulted in "traumatic abuse" such that it was a material change in circumstances and that the father should be awarded custody. The guardian ad litem's motion was based on a report filed by Dr. Ronan in July 2014 with the Tuscaloosa County Department of Human Resources ("DHR").[2] The guardian ad litem requested an emergency hearing on his motion. On November 17, 2015, the father filed a verified response to the guardian ad litem's petition and asked the court to set the petition for a hearing at the earliest possible date.

         On November 18, 2015, the father filed a motion seeking to enjoin the mother from taking the children to any mental-health professional other than Dr. Ronan. The father stated that the mother had indicated that she intended to seek a second expert opinion for the purposes of litigation.

         On November 23, 2015, the mother filed a response to the father's motion regarding psychotherapy and also moved to terminate the order requiring the children to undergo psychotherapy with Dr. Ronan. The mother attached letters from the children's pediatrician, who stated that the children are under a great deal of stress because of the divorce and that their symptoms have not improved, despite months of counseling with Dr. Ronan. The pediatrician suggested that they see a child psychologist or child psychiatrist. The pediatrician noted that the children would benefit from talking with a psychologist or psychiatrist who speaks German, since that is the children's native language and the language spoken at home and the children often struggle with finding the right words in English when trying to explain things.

         On December 8, 2015, the trial court held a hearing on "the request for emergency relief filed by the [guardian ad litem]." The trial court noted that it was not a final hearing and that the court was allowing only "one witness per party." The guardian ad litem called Dr. Ronan to testify. She testified that DHR had received a report that the father had sexually abused one of the children and had physically abused the other child. According to Dr. Ronan, DHR investigated the sexual-abuse report and found that it was not indicated. Dr. Ronan testified that she believed that, at a meeting in May 2014 with the guardian ad litem and the court-appointed therapeutic mediator, the mother was engaging in parental alienation and programming. However, Dr. Ronan opined that at that time the parental alienation and programming was "moderate."

         Dr. Ronan testified that, based on literature regarding parental alienation, she believed the parental alienation and programming had increased. Dr. Ronan said that she made a report to DHR that the mother's parental alienation had become emotionally abusive for the children. Dr. Ronan stated that the guardian ad litem had relied on her opinion regarding traumatic parental alienation along with his own evidence and information in arriving at the belief that the mother was engaging in abusive parental alienation. The trial court stated that it did not have enough time for the mother's expert witness.

         On December 11, 2015, the trial court entered an interim order noting that, because of the limited amount of time available, the court could not complete the hearing on the guardian ad litem's petition for "temporary modification of child custody." The court scheduled a hearing for January 28, 2016, to allow testimony from the mother's expert.

         On January 28, 2016, the trial court heard testimony from the mother's expert, Dr. John Goff, a clinical psychologist, who opined that Dr. Ronan's records were insufficient on which to base a determination of parental alienation. He stated that an examination of the children alone would be insufficient to arrive at such a determination and that both parents have to be evaluated as well.

         The trial court stated: "[Guardian ad litem], this is your petition, what is it you're requesting the Court do on an emergency basis?" The guardian ad litem asked the court whether the parents should be evaluated for the purposes of determining whether there had been parental alienation. The trial court asked if that would involve evaluation of the children and the guardian ad litem said that he thought it would. The trial court did not order any evaluations. The father's counsel asked to present a witness, which the trial court allowed. The father called a DHR caseworker, who testified that DHR's investigation had indicated that the children were being emotionally abused by the mother. On cross-examination, the caseworker admitted that Dr. Ronan made four pages of corrections and additions to the DHR report resulting from the investigation.

         On April 11, 2016, the guardian ad litem filed a second petition to modify custody, requesting that the father be awarded physical custody of the children and the mother be awarded supervised visitation. The guardian ad litem again requested an emergency hearing on the motion.

         On April 20, 2016, the mother responded to the guardian ad litem's petition to modify custody and filed a petition asking that the father's visitation be supervised. That same day, the father filed a motion to strike the mother's counterpetition insofar as it requested that the father's visitation be supervised.

         On June 22, 2016, the trial court held a hearing "for continuation of trial." The court noted that the testimony from August 3, 2015, December 8, 2015, and January 28, 2016, would all be considered "as part of the testimony in the case." The trial court stated that it was starting with testimony regarding the mother's relocation request. The trial court heard testimony from Elizabeth Obradovich, Silke Suhr, and Inga Herrmann, family friends who had observed the children and the parents interacting.

         After the mother presented her witnesses, the trial court stated:

"I'm not sure I did this on the record, for purposes of the record, the process we talked about or came up with on May 2nd attorney conference was as follows: The [mother] would finish the relocation issue. [The guardian ad litem] would present his custody modification. The [father] would respond to the relocation custody modification issues and present his counterclaim. The [mother] would respond to the [guardian ad litem's] custody modification and [father's] petition. [The mother] to present her petition to modify custody. [The father] and [guardian ad litem] to respond. So, we're on the second phase. [Guardian ad litem] to present custody modification."

         The guardian ad litem presented testimony from a teacher at the children's school. He recalled Dr. Ronan to testify. The guardian ad litem called the father to testify. The trial court was unable to complete the hearing due to time constraints.

         On July 19, 2016, the court continued the hearing. The mother testified. The father presented the testimony of a supervisor at DHR. At the end of that hearing, the trial court asked the guardian ad litem, the mother, and the father to submit written summaries of their positions.

         On September 13, 2016, the trial court entered a final judgment, stating:

"This matter is before the Court on various petitions filed by the Mother, the [guardian ad litem], and the Father; and
"The trial of these issues occurred over several days over course of approximately one year, with the final day of trial occurring on July 19, 2016 (the attorneys for the parties were requested to, and they did, submit post-trial arguments for the court's consideration)....
"Based upon the evidence presented, the Court makes the following findings and enters the following orders.
"(1) This case has a long and complex history beginning with the parties' original filing for a divorce in this Court on January 5, 2014.
"(2) Although there was certainly a great deal of animosity and indecision by and between the parties, this Court ultimately entered a final decree of divorce on August 7, 2015. The final decree adopted the terms of a mediated settlement as part of the order. No appeal was taken from the entry of said final decree.
"(3) The final decree provided that the parties would share legal custody of the children and that the Mother would be designated sole physical custodian.
"(4) The primary issues presented to the Court are:
"(A) The Mother's request to relocate the physical residence of the children to Germany.
"(B) The Guardian Ad Litem's petition for modification of custody of the children.
"(C) The Father's petition for modification of custody and for contempt and other relief.
"(D) The Mother's petition for modification of custody.
"(5) By virtue of the fact that the Mother was designated the sole physical custodian of the children, any requests for modification of physical custody must meet the heavy burden as set forth by the Alabama Supreme Court in Ex parte McLendon, 455 So.2d 861 (Ala. 1984).
"(6) Pursuant to the Alabama Parent-Child Relationship Protection Act, after the Father objected to the Mother's proposed relocation of the children to Germany, the Mother must show that such a move would ...

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