C.M.M. v. S.F.

• Decision Date: 01 June 2007
• Docket Number: No. 2051028.,2051028.
• Citation: 975 So.2d 975
• Parties: C.M.M. v. S.F.
• Court: Alabama Court of Civil Appeals

975 So.2d 975

C.M.M. v. S.F.

No. 2051028.

Court of Civil Appeals of Alabama.

June 1, 2007.

Jan Schroeder Grant and Catherine R. Steinwinder of Law Offices of Judy H. Barganier, P.C., Montgomery, for appellant.

Louis C. Colley of Cleveland & Colley, P.C., Prattville, for appellee.

THOMPSON, Presiding Judge.

On March 15, 2004, C.M.M. ("the father") filed a complaint alleging that J.H.M. ("the child") was a dependent child as that term is defined under § 12-15-1(10), Ala.Code 1975. In his dependency complaint, the father alleged that the child's maternal grandmother, J.F. ("the grandmother"), had legal custody of the child and that the child's mother, S.F. ("the mother"), had filed a complaint seeking custody of the child.¹ The father alleged that neither the mother nor the grandmother was capable of parenting the child and that it was in the child's best interest that custody be awarded to him. The father sought custody of the child and an award of child support from the mother. The record indicates that the grandmother did not oppose an award of custody to the mother, and the record does not indicate that she filed any document in the trial court opposing the father's dependency complaint. The record also does not indicate whether the mother submitted an opposition to the father's dependency complaint.

The trial court conducted a hearing at which it received ore tenus evidence. On August 10, 2006, the trial court entered an order awarding custody of the child to the mother and fashioning a visitation schedule for the father. In that order, the trial court ordered the parties to submit information regarding their incomes for the purpose of determining the father's child-support obligation. Accordingly, the August 10, 2006, order did not constitute a final judgment because it did not determine all the issues in controversy between the parties. See Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004) ("A final judgment is one that disposes of all the claims and controversies between the parties."). The father filed a motion, purportedly pursuant to Rule 59(e), Ala. R. Civ. P., which the trial court denied. The father then filed another motion seeking reconsideration of the denial of the original "postjudgment" motion; the trial court denied that motion as well.

On September 8, 2006, the father appealed to this court. While the father's appeal was pending, this court entered an order temporarily reinvesting the trial court with jurisdiction to enter a final judgment in this matter. On December 28, 2006, the trial court entered a final judgment that incorporated the language from its August 10, 2006, order regarding its custody and visitation awards and also ordered the father to pay $733 per month in child support. The parties subsequently submitted briefs to this court with regard to the December 28, 2006, final judgment.

At the time of the July 26, 2006, ore tenus hearing, the child was 12 years old. The mother also has another child who is the in the custody of that child's father; custody of that child is not at issue in this appeal. The grandmother has had custody of the child since he was approximately 16 months old; the record on appeal does not contain the order granting the grandmother custody. At the time the mother transferred custody of the child to the grandmother, the mother's lifestyle was unstable, and she was drinking alcohol and abusing illegal drugs. According to the testimony of the mother and the grandmother, the mother was always involved in the child's life and often lived in the grandmother's home with the child.

Approximately five or six years before the hearing, the mother stopped using illegal drugs and began to stabilize her life. The mother became very active in the child's life, and she resumed living with the child and the grandmother. In July 2003, the mother moved from the grandmother's home. According to the grandmother, the child begged to be allowed to live with the mother, and the grandmother allowed him to do so. The grandmother stated that at that time, as well as at the time of the hearing, she had no concerns about the mother's ability to properly parent the child. The record indicates that the mother and the grandmother consulted an attorney to formalize the custody arrangement they were proposing but that there was a delay of several months in the actual filing of the mother's complaint for custody of the child. After the mother filed her complaint for custody, the father filed his dependency complaint.

The mother has worked for a local automobile dealership for approximately three years. A condition of employment at that dealership is submitting to random drug-screen tests, and the mother has never failed a drug-screen test. The mother's supervisor testified that the mother's employer was supportive of working mothers and was flexible in allowing the mother and other female employees to take care of the needs of their families. Before these proceedings were initiated, the child often stayed at the father's home after school until the mother picked him up after work; however, after the father filed his dependency complaint, the child began staying after school with the mother at her place of employment. In the months before the hearing, the child, who was then 12 years old, began staying alone at the mother's home after school and waiting for the mother to return from work. Neighbors with whom the mother and the child share a close relationship watched out for the child until the mother returned from work. Those same neighbors were keeping an eye on the child during the summer months while the child either stayed at the mother's home or visited the neighbors.

The father presented evidence indicating that, while the child was living with the mother, the child was frequently late for or absent from school. The mother testified that she often had difficulty awaking the child for school. The mother admitted that the child's frequent lateness to school was wrong, and she stated that she was improving in her efforts to have the child at school on time. The father also alleged that the mother smokes cigarettes around the child and that the child has respiratory problems as a result. The mother did not present any evidence regarding her smoking.

The mother testified that the child had always done well in school until the year before the hearing while this modification proceeding was pending. The mother testified that the child had not had a grade lower than a "C" on his report card. The father believed the child had recently made grades lower than a "C" on his report card for some classes. We note that the father, in his purported postjudgment motions, alleged that the child had received a "D" grade on his report card in some classes, and he submitted some documentation in support of that claim. However, it is not clear that the trial court accepted those documents as evidence or considered them in denying those motions. See J.S.M. v. P.J., 902 So.2d 89, 91 n. 2 (Ala.Civ.App.2004) (this court refused to consider an affidavit submitted in support of a valid postjudgment motion when it was unclear that the trial court had considered that evidence).

The father accused the mother of being involved with or living with a number of different men in the last few years. The mother admitted to dating or having relationships with some men, but not as many as the father alleged. The parties disputed some facts regarding the mother's relationship with her most recent boyfriend, to whom she was briefly engaged. The father testified that the child hated that boyfriend and that the mother often took the child on overnight trips to Alabaster, the town in which that man lived. The mother testified that she and the child had traveled to visit the boyfriend in Alabaster on only two occasions. The mother stated that she had ended her relationship with the man because she decided that it was in the child's best interests for her to do so.

The father's paternity was established when the child was approximately two years old. At that time, the father was awarded visitation with the child, and he was ordered to pay child support. The father had previously unsuccessfully petitioned the court to obtain an award of custody of the child. The record does not clearly indicate when the father initiated that earlier action, but it appears that it was initiated more than five years before the hearing in this matter; in other words, it was initiated before the mother began making significant improvements to her life.

The father testified that the mother and the grandmother had interfered with his visitation with the child, and the mother and the grandmother denied that allegation. The father also testified that the mother's and the grandmother's interference with his visitation with the child caused him to stop visiting and paying support for the child for a period of 8 to 12 months. On cross-examination, the father's testimony regarding that allegation was impeached by his prior deposition testimony, but the father insisted that his memory of the events was better at the time of the hearing than it was at the time of the deposition that had been conducted two years earlier. The father admitted that he does not attempt to contact the child by telephone between his alternate-weekend visitations.

When the child began living with the mother, the father began making his child-support payments to the mother rather than to the grandmother. At the hearing the father testified that he was current on his child-support obligation.

The father admitted that he has been convicted on a charge of driving under the influence and that he was arrested on a second charge for that offense. The father has also been arrested on domestic-violence charges.

The father is currently married to his third wife ("the wife"). The father has custody of a child from his first marriage, and the wife has custody of...