C.M.L v. C.A.L.

          Appeals from Lauderdale Circuit Court (DR-04-605.03)

         On Application for Rehearing in Case No. 2170983

          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         This court's opinion of May 10, 2019, is withdrawn, and the following is substituted therefor.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 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. 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 Lauderdale County Sheriff's Department and that G.B. had reported to her after the October 9, 2015, incident that led to his guilty plea to the charge of public lewdness. According to Muston, public lewdness is not generally considered a sex crime that requires registration as a sex offender, but, she said, the municipal court that received G.B.'s guilty plea had nevertheless ordered G.B. to do so. Muston testified to having talked to the mother and G.B. and that, because G.B. had not been ordered to comply with all the requirements of the Alabama Sex Offender Registration and Community Notification Act, § 15-20A-1 et seq., Ala. Code 1975 ("SORNA"), she told G.B. and the mother that G.B. was required only to register as a sex offender for 24 months and did not have any work or living restrictions involving children. According to Muston, she had a duty to keep G.B.'s registration confidential, but that duty did not extend to the mother and G.B. Muston testified that, if the mother had notified anyone else, that conduct "may have caused other issues" but it would not have violated G.B.'s registration terms.^[1] Muston testified that, in October 2016, G.B. moved to another county and no longer reported to her.

         Regarding the October 9, 2015, incident that led to G.B.'s guilty plea to public lewdness, the mother testified that she had concluded that the incident was alcohol-related and that she did not believe any harm had occurred to the minor involved. The mother testified that she did not tell anybody about the case to protect G.B. and to protect her children from embarrassment at school. The mother testified that she found out about a 2008 incident in Cullman County after G.B. had been arrested for the 2015 incident. G.B. had been charged in Cullman County with sexual abuse of a minor who was the sister of his then wife, had been found guilty of the charge, but, on appeal to the circuit court, had eventually pleaded guilty to harassment. The mother testified that she had been informed that the minor involved in that incident later recanted her story, that G.B. had remained married to his wife at that time for another two years, that they had two children after the incident, and that G.B. denied that the incident happened. The mother testified that she did not inform anyone of the incident in Cullman County after she had learned of it.

         According to the mother, after G.B. was arrested and charged with indecent exposure for the second time in 2016, she became concerned that living with him was a problem. The mother admitted that there were occasions when G.B. was alone with her children. According to the mother, she divorced G.B. immediately after that incident and changed her job to be with the children more. The mother testified that she had not seen anything to cause her concern about G.B. being around the children before the incident in 2016 but that she had decided that she would not want to take a chance with him being around the children. At the time of the trial in this case, G.B. ...