Pratt v. Pratt

Decision Date20 August 2010
Docket Number2090249.
Citation56 So.3d 638
PartiesSusanne M. PRATTv.John W. PRATT.
CourtAlabama Court of Civil Appeals

56 So.3d 638

Susanne M. PRATT
v.
John W. PRATT.

2090249.

Court of Civil Appeals of Alabama.

Aug. 20, 2010.


[56 So.3d 639]

Brian Overstreet and Kenneth A. Nixon, Mobile, for appellant.Submitted on appellant's brief only.MOORE, Judge.

Susanne M. Pratt (“the mother”) appeals from a judgment of the Montgomery Circuit Court (“the trial court”) divorcing her from John W. Pratt (“the father”) and awarding her supervised visitation with the parties' three children. We affirm in part and reverse in part.

[56 So.3d 640]

Procedural and Factual Background

This divorce action began when the father petitioned for a legal separation from the mother on July 2, 2008. The mother originally answered the father's petition and counterpetitioned for a divorce, but she later withdrew her counterpetition. The father then amended his petition to seek a divorce. The trial court commenced a trial on February 24, 2009, but it recessed the trial on February 25, 2009, before concluding it on June 15, 2009. In the interim, the trial court awarded pendente lite custody of the children to the father and awarded the mother supervised visitation.

The pertinent evidence at trial, when viewed in a light most favorable to the findings of the trial court, indicates that the mother had developed health problems following the birth of the parties' three children that caused her lethargy and other disabling symptoms, which sometimes prevented her from properly caring for the children. The mother used narcotic and other medications to treat those health problems, resulting in what one expert considered a substance-abuse problem, which another expert described as an “iatrogenic addiction.” 1 The mother appeared to overcome those problems after the parties separated, which allowed her to start working as a nurse and permitted her to exercise custody of the children uneventfully for a period. However, in early December 2008, the mother experienced a seizure-like episode and lost consciousness late at night while at her home in Montgomery with the children and her father. Following that episode, the father obtained custody of the children while the mother remained hospitalized. Upon her discharge several days later, the mother's treating physicians, who did not definitively diagnose the cause of the episode but suspected it may have arisen from the mother's medically unsupervised attempt to withdraw from all of her medications, recommended that the mother cease using narcotic medications; however, at the time of trial, the mother continued to use narcotic medications prescribed by her pain-management physician. Some evidence suggested that the mother had also obtained prescription medications from other physicians without coordinating with her primary doctor. All the expert testimony on the subject recommended that, due to her unresolved health and prescription-drug-use problems, the mother should have supervised visitation with the children.

The trial court entered its judgment of divorce on June 24, 2009. In that judgment, the trial court, among other things, divorced the parties, awarded the parties joint legal custody of the children, awarded the father primary physical custody of the children, and awarded the mother supervised visitation. In reference to the mother's supervised visitation, the judgment stated:

“3. ... The [mother] shall have supervised visitation with the children and said visitation shall be supervised by Roger and Gloria Burk. The counselor, Laurie Mattson Shoemaker, shall prepare guidelines to be given to the supervisors for the supervised visitation.

“4. The schedule of supervised visitation may be upon agreement of the parties, however, said visitation shall occur no less than once every two weeks, beginning June 26, 2009. The location and length of visits are at the discretion

[56 So.3d 641]

of the [father] and the supervising party, however, each visit should last at least two hours and should be held in as ‘home-like’ a setting as possible, so that the children feel comfortable.”

The trial court indicated that the judgment was final, but it scheduled a review hearing for October 5, 2009, for the sole purpose of evaluating the mother's visitation status.2

On July 23, 2009, through new counsel, the mother timely filed a motion to alter, amend, or vacate the judgment or, alternatively, for a new trial. The mother's postjudgment motion was deemed denied by operation of law on October 21, 2009. See Rule 59.1, Ala. R. Civ.App. The mother then timely filed her notice of appeal.

Analysis
Supervised Visitation

We initially address the mother's argument that the trial court exceeded its discretion in ordering supervised visitation based on its concern that the mother had developed an addiction to prescription pain medication. From our reading of her brief, the mother does not complain that the trial court did not have sufficient evidence before it to support its concern that the children could be at risk while visiting the mother due to her prescription-drug-use problem. Rather, the mother contends that the trial court should have protected the children by using means other than supervised visitation that would be less intrusive on the parent-child relationship.

“The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision in this regard will not be reversed absent an abuse of discretion.” Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994). In exercising its discretion over visitation matters, “ ‘[t]he trial court is entrusted to balance the rights of the parents with the child's best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case.’ ” Ratliff v. Ratliff, 5 So.3d 570, 586 (Ala.Civ.App.2008) (quoting Nauditt v. Haddock, 882 So.2d 364, 367 (Ala.Civ.App.2003) (plurality opinion)). A noncustodial parent generally enjoys “reasonable rights of visitation” with his or her children. Naylor v. Oden, 415 So.2d 1118, 1120 (Ala.Civ.App.1982). However, those rights may be restricted in order to protect children from conduct, conditions, or circumstances surrounding their noncustodial parent that endanger the children's health, safety, or well-being. See Ex parte Thompson, 51 So.3d 265, 272 (Ala.2010) (“A trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child.”). In fashioning the appropriate restrictions, out of respect for the public policy encouraging interaction between noncustodial parents and their children, see Ala.Code 1975, § 30–3–150 (addressing joint custody), and § 30–3–160 (addressing Alabama Parent–Child Relationship Protection Act), the trial court may not use an overbroad restriction that does more than necessary to protect the children. See Smith v. Smith, 887 So.2d 257 (Ala.Civ.App.2003), and Smith v. Smith, 599 So.2d 1182, 1187 (Ala.Civ.App.1991).

[56 So.3d 642]

In Ex parte Thompson, supra, our supreme court recently endorsed supervised visitation as a reasonable means of protecting the child of a noncustodial parent who was suffering from, among other problems, an unresolved substance-abuse condition when the evidence showed that unsupervised visitation would have subjected the child to an unreasonable risk of harm. The mother argues that, in this case, the trial court could have adequately addressed its safety concern for the children by simply ordering that she refrain from using prescription drugs. In Jackson v. Jackson, 999 So.2d 488 (Ala.Civ.App.2007), a plurality of this court concluded that a mother, who was accused of having in the past occasionally used...

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    ...one parent complete discretion in visitation decisions amounts to an improper delegation of judicial authority); Pratt v. Pratt , 56 So. 3d 638, 643 (Ala. Civ. App. 2010) ("[A] visitation order awarding ‘reasonable visitation with the minor children at the discretion of the [custodial paren......
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