C.M.L.
v.
C.A.L. C.A.L.
v.
C.M.L.
Appeals from Lauderdale Circuit Court (DR-04-605.03)
DONALDSON, JUDGE.
C.M.L.
("the father") appeals and C.A.L. ("the
mother") cross-appeals from a judgment of the Lauderdale
Circuit Court ("the trial court") modifying their
divorce judgment. The mother challenges the portion of the
judgment modifying the custody of C.L. ("the
child") to grant the father sole physical custody. The
father challenges the portion of the judgment ordering the
mother to pay the father a monthly amount of child support
that deviates from the child-support guidelines in Rule 32,
Ala. R. Jud. Admin. ("the Rule 32 guidelines"). We
affirm the judgment as to the change in custody. We reverse
the judgment as to the amount of child support ordered, and
we remand the cause to the trial court.
Facts
and Procedural History
The
mother and the father were married in 1999, and the child was
born in 2002. On June 15, 2005, the trial court entered a
judgment divorcing the parties that incorporated the
parties' agreement. The divorce judgment provided, among
other things, that the parties would have joint legal custody
of the child and that the mother would have sole physical
custody of the child. The divorce judgment also specified the
father's visitation times with the child and ordered the
father to pay the mother $541 a month for child support; the
father's child-support obligation was subsequently
changed to $507 a month by an order of the trial court
entered on September 24, 2007. After the entry of the divorce
judgment, the father remarried, and the mother has remarried
three times. Both parties have two other children who are the
child's half siblings. The father now lives in Winfield,
and the mother lives in Killen. On October 3, 2016, the
father initiated the underlying action by filing a complaint
seeking to modify provisions in the divorce judgment to
obtain sole legal and physical custody of the child and child
support from the mother. The father also sought to limit the
mother's visitation with the child following any change
of physical custody. In the complaint, the father alleged
that the mother's husband, G.B., had a criminal history
involving sexual offenses, including being charged on October
3, 2016, with indecent exposure, and that the mother was
leaving the child with G.B. overnight while she was traveling
as part of her job. The father amended his complaint to
further allege that, before her marriage to G.B., the mother
had married J.M. in 2006 and S.F. in 2011 and that she had
filed petitions for protection from abuse against both of
those former husbands and had obtained orders requiring their
removal from the mother's home. The mother filed an
answer denying the father's allegations.
On
October 6, 2016, the father filed a motion seeking pendente
lite physical custody of the child pursuant to Rule 65(b),
Ala. R. Civ. P. On October 11, 2016, the trial court entered
an ex parte order granting the father pendente lite physical
custody of the child. The mother filed a motion to dissolve
that grant of custody. On November 17, 2016, the mother filed
a counterclaim, which included a request seeking an order
finding the father in contempt; the mother alleged that the
father had made insufficient child-support payments since
2008. The father filed an answer, alleging that he had fully
paid child support in accordance with informal agreements he
had reached with the mother.
On
December 12, 2016, and January 30, 2017, the trial court
conducted a hearing during which it received ore tenus
testimony on the issue of pendente lite custody. At the
conclusion of the hearing, the trial court stated that it was
not dissolving the ex parte order granting the father
pendente lite custody of the child.
On May
10, 2017, the trial court appointed a guardian ad litem for
the child. On May 15, 2017, and June 20, 2017, the trial
court conducted a trial. In addition to the evidence
presented at trial, the trial court incorporated all the
evidence received at the hearing held on the issue of
pendente lite custody into the trial. After considering the
evidence, the trial court found the following facts, as
stated in its April 26, 2018, judgment:
"A.
"On June 8, 2006, [the mother] married her second
husband, [J.M.], and moved him into her home with her
daughter and [the child].
"On August 1, 2007, [the mother] signed a Petition for
Protection from Abuse action against [J.M.] ... alleging that
he 'has an unstable mental capacity which lead [sic] to
the threat of suicide in my home. He fired his pistol in an
attempt to convince me of his suicidal intention at my
home' and was granted an ex parte protection from abuse
order specifically requiring [J.M.'s] removal from the
home. On August 15, 2016, at [the mother's] request, the
Court dismissed the action. ...
"Following the December 5, 2007, birth of her third
child (a son), [the mother] filed for divorce against [J.M.]
on April 1, 2008, and on June 27, 2008, obtained a decree of
divorce by agreement ....
"B.
"On February 18, 2011 [the mother] married her third
husband, [S.F.], and moved him into her home with her
daughter and two sons.
"On November 27, 2012, [the mother] filed for divorce
against [S.F.] and on April 11, 2013, was granted a divorce
by default ....
"On February 14, 2014, [the mother] signed her first
Petition for Protection from Abuse action against [S.F.] ...
alleging as follows:
"'On 2/11/14 my [e]x-husband told me he would bury
me and ransack my home as well as take any personal
belongings of mine and my kids with him. This took place in
my home. He threatened to bury me. He came to my hotel room
in Decatur on 2/12/14 and tried to get in my room. He
harassed me by text and calling the rest of the night when I
wouldn't let him in. He went to my work this morning
already. I fear he will continue to stalk and harass me once
he is gone from my home and he is unstable at this time.'
"[The mother] specifically requested that [S.F.] be
removed from the home. The ex parte protection from abuse
order granted by the Court required [S.F.]'s removal from
the home and forbade [him] from having any contact with [the
mother] or the three children. On March 7, 2014, the Court
dismissed the protection from abuse action due to [the
mother's] failure to prosecute. ...
"On March 28, 2014, [the mother] signed her second
Petition for Protection from Abuse action against [S.F.] ...
alleging as follows:
"'He harasses and stalks me on a daily basis. He
comes to my place of work as well as people I know trying to
find out where I am and what I am doing. He also comes to my
home. He has threatened to bury me if I didn't agree to
take him back. I am always looking over my shoulder in fear
he will be there. He will not stop the harassment no matter
what. I have told him to stop texting and calling and
stalking me numerous times. He does not want to hear reason
at this point.'
"[The mother] specifically requested that [S.F.] be
removed from the home. The ex parte protection from abuse
order granted by the Court on April 4, 2014, states that
'any law enforcement officer is hereby directed to
accompany [the mother] to the residence of the parties and to
remove [S.F.] from [the mother's] home.' The order
also forbade [S.F.] from having any contact with [the mother]
or the three children. On April 7, 2014, [the mother] was
granted a protection order. ...
"On the same date [i.e. April 7, 2014], [S.F.] was
charged with Domestic Violence 3rd Degree -Harassment ... and
Domestic Violence 3rd Degree -Harassing Communications .... A
condition of his bond was that he have no contact with [the
mother]/victim. ...
"[S.F.] remained 'out on bond' until July 3,
2014, when he was charged with two counts of Violation of
Domestic Violence Orders ... and arrested. ...
"....
"On September 11, 2014, [S.F.] plead [sic] guilty to
Domestic Violence 3rd Degree - Harassment ... and Domestic
Violence 3rd - Degree Harassing Communications
.... As a part of the plea agreement, the Violations of
Domestic Violence Orders charge ... was dismissed. [S.F.] was
ordered to have no contact directly or indirectly with [the
mother].
"Notwithstanding [the mother's] protective orders
against [S.F.] and his criminal convictions wherein [the
mother] was the victim, [the mother] has allowed [S.F.] to
remain on the Brooks High School 'pick up' list for
the [child]. ...
"C.
"On February 7, 2015 [the mother] married her fourth
husband, [G.B.], and moved him into her home with her
daughter and two sons.
"[G.B.] has a history of criminal sexual activity. On
October 15, 2008, [G.B.] was charged in the District Court of
Cullman County, Alabama with Sexual Abuse 2nd Degree [ยง
13A-6-67(a)(2), Ala. Code 1975, ] of a [minor]. On March 23,
2009, [G.B.] was found guilty of Sexual Abuse 2nd Degree. On
March 27, 2011, [G.B.] appealed his conviction to the Cullman
County Circuit Court and on September 19, ...