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K.L.H v. J.R.C.

Alabama Court of Civil Appeals

May 17, 2019


          Appeal from Madison Juvenile Court (CS-14-900566.01)


         On January 2, 2018, J.R.C. ("the father") filed in the Madison Juvenile Court ("the juvenile court") a petition seeking to modify custody of A.R.C.H. ("the child"), a child born of his relationship with K.L.H. ("the mother"). The parties were never married. According to allegations in the pleadings, the father's paternity had been established by an earlier judgment of the juvenile court entered in an action that was assigned a different case number.[1] A later, April 3, 2015, judgment of the juvenile court entered in another action awarded the mother sole physical custody of the child and established visitation schedule for the father.[2]

         The mother answered and opposed the father's January 2, 2018, modification petition. The father later amended his petition to allege that the mother was voluntarily underemployed for the purposes of a child-support determination, and he asserted a claim for an award of an attorney fee. The mother opposed the father's amended petition. The mother later filed a counterclaim seeking to modify the father's child-support obligation.

         The juvenile court conducted an ore tenus hearing on August 6, 2018. On August 10, 2018, the juvenile court entered a judgment in which it, among other things, awarded sole physical custody of the child to the father. The mother filed a postjudgment motion. The father filed an opposition to that motion or, in the alternative, a postjudgment motion of his own. The juvenile court entered an August 24, 2018, postjudgment order that slightly altered the August 10, 2018, judgment in ways not relevant to the issue presented in this appeal. The mother timely appealed.

         The record on appeal indicates that, at the time of the August 6, 2018, ore tenus hearing, the parties' child was five years old and was about to begin kindergarten. Pursuant to the April 3, 2015, judgment, the father had visitation with the child from Wednesday night through Monday morning on alternating weeks, and on Sunday nights on the other weeks. The evidence is undisputed that the mother has afforded the father additional visitation time with the child. The parties often worked together to switch custodial periods to accommodate each other's schedule. The father admitted that, with certain exceptions, the mother often granted his requests to alternate visitation days or to allow him additional time with the child. The father also conceded that the mother had offered him time with the child not provided for in the April 3, 2015, judgment during her period of extended summer custody of the child. In her testimony, the mother testified that she believed that it was "cruel" for both a parent and a child not to see each other for a period as long as three weeks.

         In contrast, the father admitted that, for the most part, he did not allow the mother additional time with the child. The record indicates that, to some extent, the father had switched days under the visitation schedule in order to accommodate the mother's work schedule. However, the mother briefly worked out of state from December 2017 through January 2018 and again from February 2018 through April 2018. The child lived with the father during those periods. During one of those periods, the mother returned home on weekends, and the father refused to allow the mother to see the child during weekends on which his visitation was scheduled under the April 3, 2015, judgment. Also, the father and the child traveled to visit his family in Pennsylvania for a week, and the mother, who was then working approximately two hours away, requested that she be allowed to visit the child for a few hours; the father refused that request.

         The father testified that, since the entry of the April 3, 2015, judgment, the mother had had nine jobs and that her work schedule had resulted in a lack of stability for the child. Included in the father's count of the mother's jobs were two contract jobs, each of which lasted six to eight weeks. The mother testified that there were few high-paying jobs in her field of science in the area in which the parties lived; the mother has a degree in biochemistry and has worked in the pharmaceutical field. She explained that she had not wanted to relocate with the child for better employment because that would result in the child's having less frequent contact with the father. The mother testified that she believed that the child, a son, needed frequent contact with his father. The mother explained her reasons for quickly leaving some jobs; in one she was very unhappy, and she held another for only a few days before she was offered a higher-paying job much closer to her home.

         The mother's mother ("the maternal grandmother") lives with the mother and the child. It is undisputed that the maternal grandmother often takes care of the child for both parties and that she often takes the child to, or retrieves him from, his school for both the mother and the father.

         The father was unemployed at the time of the August 6, 2018, ore tenus hearing. He stated that the company for which he had worked closed the workplace at which he had been employed. The father testified that, at that time, he was receiving income from a severance settlement that provided him income for six months. The father testified that he was looking for another job and that his search had included both local jobs and employment in other areas. The father denied that he planned to relocate with the child. However, the father later admitted both that he wanted to move and that he wanted custody of the child.

         The father also cited as a basis for seeking to modify custody his allegation that the mother was financially irresponsible. He cited the fact that discovery in this action had demonstrated that the mother was $300, 000 in debt. In his testimony on cross-examination, the father admitted that the majority of that amount was the mother's mortgage indebtedness on her home and that the remainder was the mother's student-loan indebtedness. The mother confirmed that testimony and testified that she had minimal credit-card debt. The father also testified that, on one occasion, when the mother was behind in paying for the child's "after-school care," she had spent money at a craft fair.

         The primary basis for the father's seeking the custody modification was his contention that the mother does not effectively discipline or parent the child. The father testified that the child does not listen to or obey the mother. He stated that the mother is not consistent with the child and that she often does not follow up with attempts to discipline the child. The father alleged that, when the child is with the mother, the child throws tantrums and that the child has hit and has bitten the mother. The father also presented evidence indicating that the mother often consults him about the child and asks for advice on how to handle the child's behavior.

         As examples of the mother's inability to properly parent the child, the father testified to an incident he had witnessed when the father was "Facetiming"--i.e., conducting a on-line video conference--with the mother and the child when the child was three years old; the mother and the child were preparing to leave the house for the day. The father testified that the mother had instructed the child to put on his shoes but that, when the child did not do so, the mother put the child's shoes on the child's feet. The father also testified that, when the child refused to eat a bagel the mother had prepared for him, the mother instead gave the child a muffin. The father stated that, with regard to that incident, the mother had catered to the child rather than disciplining him.

         The father also stated that, on one occasion, the mother told the child he could not play with his toys as a method of discipline and that she locked the door to the room in which the toys were located. The father believed that the mother should not have locked the door and that, by doing so, the mother had "kind of passed the decision for [the child] to be able to play in his toy room to an inanimate object rather than saying 'you can't play with the toys because I said so.'" The father also testified that he has witnessed the child strike and bite the mother during a tantrum; he did not specify the age of the child when that occurred.

         The mother testified that she has attempted to communicate frequently with the father and that the father rarely communicates with her. The mother testified that she has read three books on co-parenting with the father and that, that was the reason she attempts to communicate frequently with the father. The mother stated that she believes that, in order for co-parenting to succeed, it is better for one parent to attempt to communicate than having neither parent doing so.

         The mother denied that the child "runs all over her." She stated that she disciplines the child by speaking with him about his actions and the consequences, by taking things away from him, and by occasional spankings. The mother testified that the child is a good child and that the father is the person who is hardest on the child. In his testimony, the father admitted that he is controlling over the child. The mother denied that she had had trouble putting the child to bed or with waking him up in the morning, and she stated that the child is not any more defiant with her than other children his age are with their parents. The mother admitted that she had had a conference with the child's teacher about the child's behavior at home; she denied that she believed that the child's behavior at home was a problem, but she believed that she could benefit from some advice from the teacher.

         The child's pre-kindergarten teacher testified that, in addition to a conference, the mother had e-mailed her and spoken with her by telephone about the child's not doing things she asked him to do at home, such as dressing for school. The teacher stated that she asks parents to complete a behavior survey about their children and that the mother's responses to that survey indicated "red flags" that were not matched by her experience of the child's behavior at school. The teacher testified that she had seen the child be rude to the maternal grandmother and that she believed that the mother spoiled the child inappropriately. The teacher also stated that the child seemed short-tempered with the mother but that he was more calm with the father; she stated that the child's overall behavior had been more calm during the time he lived with the father while the mother worked out of state.

         A pre-kindergarten school administrator testified that she had observed that the child is temperamental with the mother and that he had been violent with her; she also stated that the child was defiant with the maternal grandmother. The administrator stated that the child was better behaved and more settled with the father. We note, however, that, on cross-examination, the administrator stated that, other than speaking to the mother by telephone on one occasion, the only other contact she had had with the mother was observing her approximately five times in the school drop-off line.

         The father, the mother, and the child's teacher all agreed that the child is not badly behaved and that his behavior is typical for children his age. Both parents agree that the child is healthy and smart. The teacher described the child as "well adjusted" and "resilient," and she stated that "I think he is going to do fine." The child's "grades" in his pre-kindergarten year were "exceeds expectations"; the teacher explained that letter grades were not assigned to children in that pre-kindergarten program.

          In its August 10, 2018, judgment transferring sole physical custody of the child to the father, the juvenile court found, in pertinent part:

"1. That the parties were before the court previously and received a final [judgment] granting them joint legal custody with primary physical custody to the Respondent Mother on April 3, 2015. In that [judgment], the child support, insurance and other matters regarding the child were set out.
"2. That since that time, the parties have continued to abide by that order and cooperate with each other to the extent that when the mother has the child she has made every effort to allow the father extra involvement. There were several occasions that because of her employment situation, ...

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