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Ramer v. Ramer

Alabama Court of Civil Appeals

May 3, 2019

Deborah M. Ramer
v.
Matthew C. Ramer

          Appeal from Covington Circuit Court (DR-13-101.02)

          THOMPSON, PRESIDING JUDGE.

         This is an appeal from a custody-modification judgment entered by the Covington Circuit Court ("the trial court"). Deborah M. Ramer ("the mother") and Matthew C. Ramer ("the father") had one child ("the child") during their marriage. The mother also had a child ("the son") from a previous marriage, who resided with the parties throughout their marriage. At the time of this opinion, the child is 8 years old and the son is 16 years old (the child and the son are hereinafter referred to collectively as "the children").

         The record demonstrates that the parties divorced on December 14, 2014. The 2014 divorce judgment entered by the trial court is not contained in the record on appeal.[1] After the divorce judgment was entered, the father filed a petition in the trial court seeking to modify custody. On November 19, 2015, the trial court entered a judgment noting that the father had sought to "change custody from the Plaintiff/Mother to the Defendant/Father." At that time, the trial court found, the father, who had been working in North Dakota, had changed jobs and had begun working "in the family business in the local area." The trial court found that the father's "decision to change jobs [would] have a positive effect on both of the minor children." However, the trial court stated, simply being more available to parent the children did "not meet the standard required under the law to change custody." Accordingly, the trial court did not modify the custody arrangement at that time, although it did increase the amount of visitation to which the father was entitled, awarding him "liberal visitation" with both children. The mother did not appeal from that judgment.

         The record in the current action indicates that, in both the 2014 divorce judgment and the 2015 modification judgment, the trial court included a provision prohibiting the children from having contact with the mother's boyfriend, J.W. The provision ("the J.W. injunction") stated:

"[J.W.]: The [mother] is temporarily enjoined from having [the child] and [the son] (hereinafter sometimes referred to as 'the children') in the presence of [J.W.]. The term 'in the presence' is defined for the purposes of this order as follows: The [mother] shall refrain from taking the children to [J.W.]'s place of business, his home, or any other place that the [mother] should reasonably believe [J.W.] to currently be located. The [mother] shall further refrain from allowing [J.W.] to visit her home when the children are present, to include the home itself, as well as the yard, driveway, and street in front of the home. In short, it is the intention of this Court that these children have no contact with [J.W.]. This injunction shall remain in place until further Order of the Court."

         (Emphasis in the original.)

         On May 22, 2017, the father filed a second petition in which he requested "a change of primary physical custody of the minor children from the Plaintiff/mother to the Defendant/father." He also asked that the mother be held in contempt for violating the previous court orders. In seeking the change of custody and the order of contempt against the mother, the father alleged that the mother had violated the J.W. injunction. The father asserted that the mother had allowed the children to be around "a convicted felon" in violation of the previous court orders and that, in doing so, the mother's conduct constituted a material change in circumstances warranting a change in custody.[2] In addition to his claim that the mother had violated the J.W. injunction, the father also asserted in his petition that the mother had left the children alone "in the middle of the night" without adult supervision and had created an unsafe and unhealthy environment for the children.

         The trial court heard three days' of testimony over a period of several months. On September 29, 2017, two days after the first day of the trial, the trial court entered a "temporary order" in which it found that the mother had willfully violated the J.W. injunction and awarded the father "temporary physical custody" of the children subject to the mother's visitation, which was limited to Sundays. The trial court also explicitly left the J.W. injunction in place. The trial court stated that the temporary order was entered because the trial had not yet concluded. The mother did not seek to have this court review the "temporary order."

         At the trial, the son testified that J.W. had been to the mother's house "maybe three times" while he was there and that J.W. had come to check on him at the mother's house after the son had had shoulder surgery. The son also said that J.W. had never spent the night at the mother's house while the son was there. According to the son, the mother had told him J.W. was not to be around the children, but, he said, regarding the times J.W. had visited the house while the son was present, the mother had invited J.W. The son also testified that the mother had told him not to let the father know he had seen J.W. "because she would get in trouble." The son also acknowledged that he had J.W.'s telephone number in his cellular telephone, adding that he had spoken to J.W. about a week before the son testified.

         The mother did not dispute that J.W. had been to her house when the son was present. She testified that J.W. had gone with her to pick up the son from the airport in Atlanta when the son returned from visiting his biological father in Ireland. She denied that the child was ever at her house when J.W. visited, although she acknowledged that J.W. had been outside the house when both the children were present. The mother also presented evidence tending to indicate that J.W. did not pose a danger to the children. She alleged that the real reason the father did not want the children around J.W. was because J.W. is African-American, not because of his drug convictions. The father conceded at trial that he did not believe in interracial relationships.

         The son testified that he believed that the father "has a drinking problem." However, the son said, when the father is drinking alcohol, he does not attempt to drive. The son said that the father does not provide much supervision for the children when they are at the father's house. We note that the father lives with his own parents in their house.

         The father testified that he had obtained counseling for the child, who, the father said, was afraid to visit the mother's house and was also afraid that J.W. would move into the mother's house. The father said that the child had recurring nightmares about that scenario. The child also cries when it is time to go to the mother's house. The child's counselor, Alex Hart, testified that the child is very close to her paternal grandmother and that the child has separation anxiety when she goes to the mother's house. Hart opined that it was not in the child's best interest to return to live with the mother.

         After hearing three days of testimony, the trial court entered an order on March 26, 2018, finding that the mother had "intentionally and willfully violated the Court's 'no contact' order regarding [J.W.]." Other than the circumstances relating to J.W., however, the trial court found no evidence that the children's health or safety was "significantly impacted in a negative way while in the care and custody of either parent." After noting that the original custody order for the child, which, as mentioned, is not included in the record on appeal, provided for "joint custody," the trial court determined that it was in the child's best interest "that the parties continue to exercise joint physical and legal custody." The trial court then instructed the parties to develop a visitation schedule "structured so that [the child] resides primarily with [the father] during the school year. To meet this requirement, the Court expects that the child will reside with [the] father more than [the] mother." The trial court awarded custody of the son to the mother, subject to the father's visitation. The trial court did not address the issue of child support in the March 26, 2018, order. Instead, it scheduled a hearing on that issue for early May 2018.

         After the May 2018 hearing, the trial court entered a judgment on July 2, 2018, that, among other things, set forth the parties' custodial periods as to the child in the event the parties were unable to agree on a custody schedule themselves. Based on that schedule, the mother no longer retained sole physical custody of the child. Based on the wording of the March 26, 2018, order and the substantial parenting time given to each ...


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