C.M.L.
v.
C.A.L. C.A.L.
v.
C.M.L.
Page 418
[Copyrighted Material Omitted]
Page 419
Appeals
from Lauderdale Circuit Court (DR-04-605.03)
On
Application for Rehearing in Case No. 2170983
M.
Lionel Leathers of Leathers Law Firm, Winfield, for
appellant/cross-appellee C.M.L.
Catherine Phillips Carter, Hartselle, for
appellee/cross-appellant C.A.L.
DONALDSON,
Judge.
This
court's opinion of May 10, 2019, is withdrawn, and the
following is substituted therefor.
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
Page 420
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 the mother's
relationship with G.B., the mother had had two previous
marriages and that incidents of domestic violence had
occurred during the mother's relationships with those
former husbands. 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 seeking,
in pertinent part, an order directing the father to pay for a
child-support arrearage and finding the father in contempt;
the mother alleged that the father had made insufficient
child-support payments since 2008. The father filed a reply,
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. The following facts
regarding the mother's former husbands are not disputed.
On June 8, 2006, the mother married J.M., her second husband,
who lived in her home with the child and the mother's
daughter. The mother's third child was born on December
5, 2007, while the mother and J.M. were separated. The mother
and J.M. were granted a divorce on June 27, 2008. On February
18, 2011, the mother married S.F., her third husband, who
lived in the mother's home with her children. On April
11, 2013, the mother and S.F. were granted a divorce. On
February 7, 2015, the mother married G.B., her fourth
husband, who lived in her home with the children. The mother
filed for a divorce in October 2016. The mother and G.B. were
granted a divorce while the present action was pending.
The
mother testified regarding an incident in 2007 in which her
second husband, J.M., fired a pistol while threatening to
commit suicide at their home. The mother testified that the
child was not present during that incident. The mother
testified regarding threats, harassment, and stalking by her
third husband, S.F., at her home, a hotel room, and her
workplace.
Page 421
She
testified that S.F. was eventually charged with and pleaded
guilty to domestic violence in the third degree. In her
testimony, the mother admitted that she had not removed S.F.
from the pickup list at the child's school.
As
stated in the trial court's April 26, 2018, judgment,
undisputed evidence indicates the following regarding G.B.:
"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, [2009,] [G.B.] appealed his conviction
to the Cullman County Circuit Court and on September 19,
2011, entered a plea of guilty to Harassment (§
13A-118(1)(a)[, Ala. Code 1975])....
"[The mother] failed to disclose [G.B.]'s Cullman
County criminal sexual history and conviction to [the
father].
"On October 22, 2015, [G.B.] was charged with Indecent
Exposure [(offense date of October 9, 2015)] to a [minor]
in the Municipal Court of Killen, Alabama.... On June 15,
2016, [G.B.] plead [sic] guilty to the amended charge of
Public Lewdness. Killen Municipal Court Judge, Cliff
Wright, ordered [G.B.] `to immediately register as a sex
offender.'... "[The mother] failed to disclose
[G.B.]'s Killen Municipal Court conviction to [the
father].
"On September 29, 2016, Killen police investigated a
second report on [G.B.] for Indecent Exposure to a twenty
eight year old female. On October 3, 2016, [G.B.] was
charged in Lauderdale County with Indecent Exposure.... On
May 1, 2017, following a trial, Lauderdale County District
Judge Carole C. Medley found [G.B.] guilty as charged and
specifically found `that the evidence presented in this
cause, as well as consideration of the similar, bordering
identical facts in the Municipal Court of Killen, Alabama
... conviction, overwhelmingly met the burden of proof to
find that the crime committed was sexually motivated.'
Judge Medley ordered [G.B.] to serve one year (365 days) in
the Lauderdale County Detention Center effective
immediately, register as a Sex Offender with the Lauderdale
County Sheriff's Office and comply with all regulations
set out by the Sex Offender Registration Notification Act
(SORNA). On May 2, 2017, [G.B.] filed [a] notice of appeal
to the Lauderdale County Circuit Court...."
Matthew
Holden, a police officer with the Town of Killen, testified
that had known the father for approximately 15 years. He
testified that he contacted the father in October 2016,
informing him that he had arrested G.B. for the second time
regarding a charge of indecent exposure. Holden testified
that he had sometimes contacted someone if he felt that a
child was in danger. The father testified that, after he
found out about G.B.'s criminal history, he filed the
complaint in this case seeking custody of the child. The
father testified that he was worried about the danger
resulting from the child's living with a sex offender and
that the child and the mother's other children would
often be left by themselves with G.B. because the mother had
a job that required her to travel.
Kelly
Muston testified that she registered and monitored sex
offenders with the ...