S.D.B. v. B.R.B.

          Appeal from Clay Circuit Court (DR-09-14.02)

          MOORE, JUDGE.

         S.D.B. ("the mother") appeals from a judgment entered by the Clay Circuit Court ("the trial court") in a postdivorce contempt and modification action. We affirm the judgment in part and reverse it in part.

         Facts and Procedural History

         The mother and B.R.B. ("the father") were divorced by a judgment entered by the trial court in 2007. It is undisputed that the mother was awarded "primary" physical custody of the parties' child, G.B. ("the child"), whose date of birth is March 15, 2007, and that the father was awarded visitation with the child.^[1]

         According to the father, after the parties divorced, he began using marijuana. The mother testified that, less than a year after the divorce judgment was entered, the father was arrested, and, she said, his arrest prompted her to file a petition to modify the father's visitation at that time. The child's paternal grandmother testified that, in 2010, the father had experienced psychiatric problems. The mother testified that, at one point, the paternal grandmother had telephoned her to come pick up the child because the father had a gun and was about to commit suicide. The paternal grandmother testified that, following that incident, the father had been hospitalized for three to four weeks and that he had gone to the Cheaha Mental Health Center for several months after he was released from the hospital.

         In May 2010, the trial court entered a judgment modifying the father's visitation with the child based on an agreement entered between the parties. The modification judgment provided that the father would have visitation supervised by his parents for six months, during which period he would be subjected to drug testing. The modification judgment provided that, if the drug tests the father submitted to produced positive results, the father's visitation with the child would be suspended until a hearing could be held. The modification judgment allowed for unsupervised visitation at the end of the six-month period in the event the supervised visits during that period were "successful." The father testified that, in January 2011, he had tested positive for marijuana and "benzoids." The parties disputed whether, at that point, the father had progressed to exercising unsupervised visitation. The father testified that, upon his testing positive and pursuant to the modification judgment, his visitation was suspended pending a hearing, which, he said, was never held. The mother testified that, until this most recent modification action was commenced, the father had had no court-ordered visitation with the child since 2011. Both parties testified, however, that the mother had allowed the father to visit with the child after 2011 despite the fact that his visitation had been suspended.

         The father testified that, at some point, he had been charged with a drug-related crime and had been placed in a pretrial-diversion program called "drug court." He testified that he had been expelled from that program after he was charged with the additional crime of criminal trespass. According to the father, he was subsequently placed on probation, but, he said, he had violated the terms of his probation and, therefore, had been incarcerated from May 2013 until March 2015.

         The father testified that he had continued to exercise visitation with the child every other weekend, supervised by the paternal grandmother, even after his visitation was suspended, until he went to prison in May 2013. The mother, however, testified that she had stopped voluntarily allowing the father to visit with the child in November 2012 because he had taken the child around his girlfriend, who, she said, had been facing criminal charges of her own.

         The father admitted that he had not sent the child any cards while he was in prison, not even at Christmas. He testified that the paternal grandmother had been allowed to visit with the child over a few weekends after the father went to prison. The paternal grandmother, however, testified that the last time she had seen the child was in February 2013. The mother testified that she had decided to cut ties with the father's side of the family in 2013; she confirmed that the child had had no contact with the father's family since February 2013.

         According to the father, when he was in prison, the mother had filed more than one petition to terminate his parental rights. The mother testified that she had filed a petition to terminate the father's parental rights in March 2013; according to the mother, that petition had been granted, but, she said, the judgment granting that petition had been reversed on appeal. She testified that she had filed a second petition to terminate the father's parental rights around August 2014, but that petition had been denied. The father testified that the mother had lived in Clay County most of the time he was in prison. The mother testified that the father had not informed her where he was incarcerated. She testified that, toward the end of 2014, she had moved to South Carolina with the child because her husband, whom she had married in 2012, had obtained a job there.

         The father testified that, after he was released from prison in March 2015, he attempted to resume visiting with the child, but, he said, he had been unable to locate the child. He testified that, because the mother had moved with the child to South Carolina while he was incarcerated, he had had no way to find them.

         On July 11, 2016, the father filed in the trial court a petition alleging that the mother was in contempt for failing to give the father written notice of her intent to move the child out of state and for failing to allow the father to visit with the child ("the 2016 action"). Although the father testified that it had taken him a year to obtain service on the mother in the 2016 action, the case-action-summary sheet indicates that the mother was served in January 2017, approximately six months after the father filed his petition. The mother testified that the 2016 action was the first request by the father that he be allowed to exercise his visitation with the child.^[2]

         On February 22, 2017, the mother answered the petition and counterclaimed, requesting the trial court to suspend the father's visitation, to increase the father's child-support obligation, to find the father in contempt for failing to pay child support, and for "any other relief ... [to which the] Mother may be entitled." The father filed a reply to the counterclaim on March 22, 2017.

         According to the father's filings in the trial court, on January 9, 2018, the trial court, based on an agreement of the parties, orally ordered that the father be allowed to exercise visitation with the child for two hours in a public place every other weekend and to have telephonic visits with the child twice per week. The father testified that he had begun driving over five hours to South Carolina to visit with the child beginning in November 2017.

         The mother testified that the child had not seen the father since the child was 5 years old; the child was 11 at the time of the trial. She testified that, when she told the child that he had to visit the father, he was afraid. She testified that the child had told her that he did not want to visit the father, but, she said, she had told the child that he had to go. She testified that she was opposed to visitations between the father and the child because the child does not want to visit and because of the father's past actions and drug-abuse history. She testified, however, that she did not feel like she had interfered with the father's visits or that she had exercised any undue influence over the child.

         The father testified that, during his first two-hour visit with the child, the child had told him that he did not want to talk to him. He testified that, on that occasion, the mother had asked the child what he wanted to do and that the child had answered that he wanted to leave. He testified that the mother had thereafter left with the child. The mother testified that she had been "advised that [the child] had a choice" whether or not he stayed at the visits. The father admitted that, at the time of that visit, the child had not seen him in seven years and that the child hardly knew who he was.

         On January 19, 2018, after the father's first two-hour visitation with the child, the father filed a motion requesting that the trial court hold the mother in contempt for failing to allow him visitation in accordance with the parties' 2018 agreement. On February 19, 2018, the mother filed a motion requesting that the trial court hold the father in contempt for failing to pay child support and for bringing his son from a previous relationship ("the half brother") to his visitations with the child; she also requested that the trial court suspend the father's visitation with the child pending a final hearing.

         The father testified that, at his second two-hour visitation with the child, the mother had not been present but that the child's stepfather had been present. According to the father, the child had opened up and had talked and laughed when the stepfather had left the table.

         The father testified that, most weeks, he had received two telephone calls from the child. He testified that the child does not talk much during those telephone calls, and, he said, the child had stated that he did not want to talk to the father. The mother testified that, on some ...