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Court Case Record R.D.R. v. C.R.P. 2141060 UID(984e)


R.D.R. v. C.R.P. Court Case Record

Court Case Number: 2141060


 
Case Number2141060
Case TitleR.D.R. v. C.R.P.
Case TypeCivil
StateAlabama, AL
County
CourtCourt of Civil Appeals of Alabama.
Court Address
Phone
Field Date4/29/2016
Close Date

Parties

CounselNameType
R.D.R.Appellee/Petitioner
C.R.P.Appellant/Defendant
Details
R.D.R. (“the father”) and C.R.P. (“the mother”) were never married to one another, but they are the parents of two daughters—M .R.S. and J.N.S. (“the children”), born on September 14, 2005, and on July 29, 2006, respectively. The family was living in Texas in 2008 when the father enlisted in the United States Army. The parents subsequently parted on bad terms.1 The mother and the children moved to Alabama. On November 3, 2009, the Madison Juvenile Court (“the juvenile court”) adjudicated the father as the father of the children and, among other things, awarded the parents, per their agreement, joint legal custody of the children. Due in part to the parents' anticipation that the father would be deployed, the custody order provided that the children would live with the mother during the school year, with the possibility of living with the father in the summer and on alternating-weekends; the father was also ordered to pay child support. In 2010 the father married A.R. (“the stepmother”)
On December 12, 2014, the mother and the stepfather engaged in an act of domestic violence in the presence of the children (“the incident”). Following the incident, the mother entered into the first of two safety plans initiated by the Georgia Division of Family and Child Services (“GDFCS”). The mother agreed, among other things, that the children would live with the father in Alabama, that the stepfather would have no contact with the children, and that the mother would have supervised visitation with the children.2 On January 13, 2015, the father filed in the juvenile court a modification petition in which he requested an award of temporary and permanent sole physical custody of the children, an order suspending his child-support obligation, and an order requiring the mother to pay child support.
On January 26, 2015, the juvenile court held a pendente lite hearing at which the mother failed to appear. On March 27, 2015, the juvenile court entered an order, awarding the father pendente lite sole physical custody of the children subject to the mother's right to visitation. The children began living in a three-bedroom residence with the father, the stepmother, their child, and the stepmother's son from another relationship. On April 17, 2015, the mother filed an answer and a counterclaim in which she requested, among other things, a dismissal of the father's modification petition and an award of pendente lite and permanent “full physical and legal custody.”
In the meantime, the father had filed a motion seeking an order requesting certain documentation from GDFCS regarding its investigation into the incident, which the juvenile court granted on March 18, 2015. GDFCS responded with a motion to quash or, in the alternative, for a protective order because, it alleged, the requested information was confidential. The juvenile court denied the motion to quash and granted the motion for a protective order; the juvenile court determined that it would review the documents and designate which, if any, documents or portions of documents were relevant to the issues raised. The father also filed a motion seeking an order allowing Jamila Gilcrest,3 a GDFCS employee, to testify telephonically, which the juvenile court denied.4
A three-day modification hearing began on June 24, 2015; however, at the close of testimony on that day, the father requested a continuance during which he intended to secure an affidavit of authenticity regarding the GDFCS documents and to file a subpoena requiring Gilcrest to appear at the modification hearing. The juvenile court granted the continuance and issued the subpoena. The modification hearing resumed on July 30, 2015, and it concluded on July 31, 2015. Gilcrest did not appear.
On August 31, 2015, the juvenile court entered a modification judgment in which it determined in paragraph one that the best interests of the children5 was served by an award to the mother of “primary” physical custody; however, paragraph two reads:
“2. The parties shall continue to share joint legal custody of the minor children· The Mother · shall have sole physical custody of the minor children, subject to the Father's reasonable right of secondary custody as outlined in '150 Mile Custody Schedule' attached hereto as Exhibit ‘A.’ The pendente lite order awarding custody of the children to the Father is dissolved, and physical custody of the children shall resume with the Mother.”6
(Emphasis added.)
The juvenile court specifically noted in its judgment that, in making its decision to award the mother sole physical custody, it had not “take[n] further evidence” regarding whether the children were safe in the presence of the stepfather because the mother had stated her intention to seek a divorce from the stepfather, and the juvenile court specifically prohibited all contact between the children and the stepfather.
On September 14, 2015, the father filed a postjudgment motion. The father filed a notice of appeal on September 21, 2015, which was before the postjudgment motion had been ruled upon. As provided by Rule 4(a)(4), Ala. R.App. P., the appeal was held in abeyance until the juvenile court denied the father's postjudgment motion on September 22, 2015. The father seeks our review of whether the juvenile court erred by refusing to award sole physical custody of the children to him, by failing to apply the presumptions provided by § 30–3–131, Ala.Code 1975, and by refusing to allow him to admit or use a certain exhibit.
“On appellate review of custody matters, [the appellate] court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court's determination will not be disturbed ‘absent an abuse of discretion or where it is shown to be plainly and palpably wrong.’ Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993)(citing Benton v. Benton, [520 So.2d 534 (Ala .Civ.App.1988) ] ). As the Alabama Supreme Court highlighted in [Ex parte] Patronas, [693 So.2d 473 (Ala.1997) ], ‘ “[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.” ‘ Patronas, 693 So.2d at 474 (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)). Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court's judgment. See Patronas, 693
“ ‘However, even under the ore tenus rule, “[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.” ‘ B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999) (quoting Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979)).”
Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007). Moreover, the ore tenus rule does not apply to a trial court's legal conclusions. Ex parte Cater, 772 So.2d 1117, 1119 (Ala.2000). Legal conclusions are subject to de novo review. Shealy v. Golden, 897 So.2d 268, 271 (Ala.2004).
The father, who had lived in Alabama, Texas, and Kuwait, testified that he had never exercised all the visitation to which he was entitled. He said that, instead of exercising visitation on alternating weekends, he had routinely exercised visitation one weekend per month or less. The following exchange took place between the father and the mother's attorney:
“A: [Visitation] was during—I would have them during the summer. I was supposed to have them the whole summer they are out, but technically, if we didn't agree, I was [June] 15 through [July] 15.
“Q: That's it?
“A: And we would swap holidays. Just the regular out-of-state visitation schedule for Madison County.
“Q: So you didn't have all alternating weekends?
“A: No, sir.
“Q: So roughly for the last six years your visitation schedule with the girls has been one month in the summer and alternating holidays; is that right?
“A: No, sir. It has been the whole summer, but technically, if we did not agree, it was June 15 through July 15. The only reason I bring that up is because it has been used against me, but so far I have seen them all summer—other than last summer.”
The mother testified that the children had spent most of “last summer” with her so that they could take part in her wedding.