B.C.H. v. M.H.
| Decision Date | 25 September 2020 |
| Docket Number | 2180776 |
| Citation | 323 So.3d 661 |
| Parties | B.C.H., Jr. v. M.H. |
| Court | Alabama Court of Civil Appeals |
*Note from the reporter of decisions: Judge Rice, retired circuit judge, Escambia County, was appointed to preside over this case upon the recusal of the circuit judges in the 37th Judicial Circuit.
J. Robert Faulk, Prattville, for appellant.
M.H., appellee, pro se.
B.C.H., Jr. ("the father"), appeals from a judgment ("the modification judgment") of the Lee Circuit Court ("the trial court") insofar as it (1) modified the visitation of M.H. ("the mother") with the parties’ three youngest children, (2) deviated from the Rule 32, Ala. R. Jud. Admin., guidelines in establishing the mother's child-support obligation, (3) declined to award the father child support retroactive to the date he commenced this action, and (4) omitted a specific list of the types of uninsured medical expenses of the parties’ children that were to be shared equally by the parties. We affirm in part, reverse in part, and remand.
The parties married in 1988. Three children, all girls, were born of the marriage, namely, H.E.H., who was born in 1993; A.F.H., who was born in 1998; and E.A.H., who was born in 2001. In addition, the parties adopted five children, namely, B.B.H. ("the older son"), a boy born in 2002; N.J.C.H. ("the younger son"), a boy born in 2005; C.R.M.L.H. ("the third youngest child"), a girl born in 2007; Z.G.A.H. ("the second youngest child"), a girl born in 2008; and R.B.H. ("the youngest child"), a girl born in 2011.
The record indicates that, in approximately 2014, the parties’ two oldest children, namely, H.E.H. and A.F.H., told the father that the mother, who was responsible for homeschooling all the children while the father worked to provide income for the family, had engaged in corporal punishment of the children that was excessive in both severity and frequency. At the trial of this action, the three oldest children testified that the corporal punishment that had occurred during the time the mother and father lived together had been a daily occurrence and provided extensive details of the punishment.
In 2014, the father sued the mother for a divorce. The parties ultimately entered into two written agreements settling the divorce action; one of those written agreements dealt with custody of the children, while the other dealt with the parties’ assets and financial obligations. Their written agreements were incorporated by reference into their divorce judgment ("the divorce judgment"), which was entered in July 2015. In pertinent part, the parties’ written agreement regarding custody provided:
The divorce judgment did not order the mother to pay child support.
In November 2017, the father commenced the present action by filing a complaint asking the trial court to modify the divorce judgment by (1) vesting him with sole physical and sole legal custody of the children who were still minors, (2) reducing the mother's visitation time with the children who were still minors, (3) ordering the mother to pay child support, (4) requiring the mother to pay the cost of supervising her visitation, (5) ordering the mother to pay the cost of the parenting coordinator, (6) ordering the mother to pay one-half of all medical, dental, eye, drug, orthodontic, and mental-health-treatment bills of the minor children that were not covered by insurance, and (7) ordering the mother to pay the father a reasonable attorney's fee to compensate him for the expense of prosecuting this action. The mother answered the father's complaint, denying that he was entitled to the relief he sought, and counterclaimed for a modification of the custody and visitation provisions of the divorce judgment so as to either increase her visitation time and terminate the requirement that her visitation be supervised or, in the alternative, vest her with sole physical and sole legal custody. The father answered the mother's counterclaim, denying that she was entitled to the relief she sought.
The trial court held a bench trial on February 19 and 20 and April 16 and 17, 2019. Before the trial court began receiving testimony on February 19, the mother made an oral motion to dismiss her counterclaim insofar as it sought sole physical and sole legal custody of the minor children, which the trial court granted. During the trial, the trial court received evidence ore tenus from numerous witnesses, including both of the parties, the parties’ three oldest children, three expert witnesses called by the father, one expert witness called by the mother, the mother's spiritual advisor, several of the people chosen by T.L. to supervise the mother's visitation, the mother's supervisor at her place of employment, the mother's two sisters, and some of the mother's friends. The record reveals that the trial court was extremely attentive to the witnesses’ testimony, often asking the witnesses questions either to clarify their testimony or to inquire about a subject that the parties’ counsel had not asked about.
The father's exhibit 1 in the present action, which consists of several discovery requests, discovery responses, and motions filed in the parties’ divorce action and several orders entered in that action, indicates that, in the course of the divorce action, the father had sent the mother several written discovery requests, one bearing a certificate of service dated September 29, 2014, one bearing an electronic filing stamp dated November 24, 2014, and one bearing an electronic filing stamp dated December 15, 2014. Each of those written discovery requests contained one or more requests for admission. When the mother did not timely respond to those discovery requests, the father, on January 15, 2015, filed a motion in the divorce action asking the trial court to deem admitted his requests for admission served electronically "on or about November 24, 2014." On February 3, 2015, the trial court entered in the divorce action an order stating that the father's motion to "[d]eem ‘admitted,’ his Requests for Admission dated November 24, 2015, is granted ...." (Emphasis added.) The father offered his exhibit 1 as evidence at the trial of the present action; the mother objected to that exhibit but did not assert as a basis for her objection that Rule 36(b), Ala. R. Civ. P., precluded its admission in the present action, and the trial court admitted it.1 Obviously, none of the father's discovery requests filed before the entry of the February 3, 2015, order were dated November 24, 2015, a date approximately 10 months in the future when the trial court entered its February 3, 2015, order. Assuming that the date of "November 24, 2015," in the February 3, 2015, order was a clerical error, it appears that the trial court was referring to the discovery request bearing an electronic filing stamp dated November 24, 2014. That discovery request contained only one discovery request that could be construed as a request for admission, which stated: Although comments made by the father's counsel at the trial of this action indicate that he was under the impression that the trial court's February 3, 2015, order entered in the divorce action had deemed other requests for admission to be admitted, the language of the February 3, 2015, order does not support that interpretation.
At the trial of the present action, the father also sought to introduce an evaluation ("the J.S.W. evaluation") written by J.S.W., a psychologist who had been employed by the mother while the divorce action was pending. J.S.W. was not called to testify by either party in the present action, but the father sought to introduce the J.S.W. evaluation into evidence as "work product" of G.V., the psychologist who was counseling the mother during the trial of this action, based on G.V.'s testimony that he had reviewed, among other things, the J.S.W. evaluation in forming his opinions regarding the mother. The mother did not object to the admission of the J.S.W. evaluation, and the trial court admitted it into evidence. The J.S.W. evaluation indicated that J.S.W. had...
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