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Appeal
from Clay Circuit Court (DR-09-14.02).
Dianne
James Davis, Alexander City, for appellant.
Submitted
on appellant's brief only.
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
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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
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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 ...