C.M.L. v. C.A.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 3^rd - 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 [§ 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, ...