Cantrell v. Cantrell

• Court: Alabama Court of Civil Appeals
• Writing for the Court: PER CURIAM
• Decision Date: 06 May 2022
• Docket Number: 2200590
• Citation: Cantrell v. Cantrell, 2200590 (Ala. Civ. App. May 06, 2022)
• Parties: Jarod Chase Cantrell v. Kate Eugenia Cantrell

Jarod Chase Cantrell v. Kate Eugenia Cantrell

No. 2200590

Alabama Court of Civil Appeals

May 6, 2022

Appeal from Winston Circuit Court (DR-2017-900007.02).

PER CURIAM

Jarod Chase Cantrell ("the father") appeals from a judgment of the Winston Circuit Court ("the trial court") denying his petition to modify custody of the parties' child, who was born in 2013 declining to hold Kate Eugenia Cantrell ("the mother") in contempt, terminating his right to visit with the parties' child, and ordering him to pay the mother's attorney fee. We affirm in part, reverse in part, and remand with instructions.

In January 2017, the mother sought a no-fault divorce from the father. The record creates the inference that the mother believed that the father had engaged in extramarital affairs. In February 2017, the father was arrested for second-degree rape, for second-degree sodomy, for third-degree burglary and for violating § 13A-6-81, Ala. Code 1975, which prohibits a school employee from engaging in a sex act with a student under the age of 19.^[1] The charges were based on allegations that on several occasions the 29-year-old father, an educator employed by the Winston County Board of Education, had entered the bedroom of K.B., a 15-year-old female student at Winston County High School, through a window and had engaged in sexual intercourse with her. On April 5, 2017, the trial court entered a judgment divorcing the mother and the father ("the divorce judgment"). The divorce judgment incorporated the parties' settlement agreement and awarded sole legal and sole physical custody of the child to the mother and visitation, as agreed upon by the parties, to the father. It is undisputed that the divorce judgment was entered while the father was incarcerated. No appeal was taken from the divorce judgment.

The record reflects that, in 2018, the father petitioned the trial court for a modification of the divorce judgment with regard to his visitation with the child. On October 30, 2018 the trial court entered a judgment, based on a settlement agreement between the parties, modifying the father's child-support obligation and awarding the father visitation with the child every other Sunday, from 2:00 p.m. to 5:00 p.m., in Cullman. That judgment further provided that the visitation would be supervised by Gene Aiken or anyone mutually agreed upon by both parties. The trial court also ordered the parties to have no direct contact with one another. A copy of that judgment was admitted into evidence in this case.

On October 30, 2019, the father filed a verified petition for a modification of the divorce judgment and the October 30, 2018, judgment and a rule nisi. The father asked the trial court to award him standardized, unsupervised visitation and to find the mother in contempt for withholding visitation from him. The father alleged that a material change in circumstances had occurred since the trial court had entered its October 30, 2018, judgment, warranting a modification of the visitation schedule. Specifically, he alleged that the criminal charges against him had been dismissed with prejudice, that the mother had withheld his visitation with the child on multiple occasions, that Aiken was no longer available to supervise visitation, and that the mother would not communicate with him to amend the visitation schedule or inform him of the child's extracurricular activities. According to the father, he had not visited with the child since August 17, 2019, and the mother had not allowed him to visit with the child telephonically. The father alleged that it was in the best interests of the child for the trial court to modify the divorce judgment by awarding him and the mother joint legal custody of the child and to modify the October 30, 2018, judgment by awarding him standard, unsupervised visitation, telephone visitation, and access to the child's health, educational, and social information. He further asked the trial court to find the mother in civil contempt for her alleged willful noncompliance with the trial court's divorce judgment and the October 30, 2018, judgment and to order the mother to reimburse him for his attorney fees, court costs, and expenses.

On December 3, 2019, the mother filed an answer and a counterpetition. In her answer, the mother denied most of the father's allegations. In her counterpetition, the mother, among other things, alleged that, since the entry of the October 30, 2018, judgment awarding her child support in the amount of $253 per month, a material change in circumstances had occurred because, she said, the father now earned substantially more money and could provide additional support for the child. She asked the trial court to modify the October 30, 2018, judgment and award her a reasonable sum for an attorney fee.

Before trial, at the mother's request, a subpoena was issued to Kim Miller, the chief law-enforcement officer for the Double Springs Police Department, ordering him to produce "all records ... and confessions made by [the father] concerning or related to allegations of his improper sexual relations with a student or students at the school where he was employed." On March 3, 2020, the father filed a motion to quash the subpoena. In his motion, the father alleged that, because the criminal charges involving his misconduct with a student at the school where he had been employed had ended in a mistrial and the criminal charges against him had been dismissed, any evidence regarding those charges and his conduct that resulted in those charges was inadmissible in this case. The trial court ordered the parties to submit briefs addressing the admissibility of evidence pertaining to the prior criminal charges against the father. The trial court further ordered that a hearing to determine the admissibility of such evidence would be conducted before the trial began.

On March 27, 2020, the mother filed a motion to suspend temporarily the father's supervised visitation with the child due to concerns relating to the COVID-19 pandemic and the unavailability of Aiken to supervise the visitations. On April 5, 2020, the trial court entered an order suspending the father's visitation "until such time as the parties agree upon a person suitable and willing to supervise said visitations."

The record reflects that the parties then entered into negotiations regarding a visitation supervisor and that, between April 5, 2020, and the trial, Caleb Snoddy and then Scott Flynn, the mother's brother-in-law, supervised the father's visitations with the child.

Before the trial began, the trial court held a hearing on the father's motion to suppress any evidence regarding the prior criminal charges against him, the conduct resulting in those charges, and his video-recorded statement made to law-enforcement officers. A transcript of that hearing is not included in the record. The trial court denied the motion. The father also objected at trial before any such evidence was admitted. The trial court overruled the father's objection, noting that it had latitude with regard to the admission of evidence in a civil case because the proponent's burden of proof is different than in a criminal case -- a preponderance of the evidence in a civil case as opposed to beyond a reasonable doubt in a criminal case -- and because the trial court in a custody case is charged with determining the best interests of the child, which includes consideration of the child's welfare in light of a parent's conduct.

On January 25, 2021, the trial court conducted a trial, at which evidence was presented ore tenus. The mother testified that the child, a boy, was nine years old and lived with her and her husband, Blake Turner, whom she had married on June 1, 2018. The mother testified that, during her marriage to the father, the father had threatened her, had physically and emotionally abused her, and had, on at least one occasion, locked her in their bedroom. She recalled one incident when she had called Flynn to help her because the father was preventing her from leaving the house. The mother stated that, just before Flynn arrived at their house, the father had been on top of her holding her down. She further testified that in late 2016 the father's sexual needs had become "perverted," that he had started placing his hands around her neck in a choking manner during sexual intercourse, and that he had started recording them having intercourse.

The mother further testified that in December 2016, at the father's suggestion, 15-year-old K.B. and her brother had come over to their house to watch a movie and spend the night. K.B.'s parents were friends of the mother and the father, and K.B.'s family attended their church, at which the father was a leader. The mother explained that the father and the guests watched the movie in the basement of their house and that she and the child did not watch the movie. When she asked the father why she and the child could not join them in the basement, the father stated:

"We're watching it and you're staying up here and do not come downstairs. You will stay with [the child] in his room, in his bedroom. Don't come downstairs with us. We'll come upstairs, but you're not to come down with us and hang out."

The mother testified that, in January 2017, she filed a complaint for a no-fault divorce. In February 2017, the father was arrested for, among other things, sexually assaulting K.B and the divorce judgment was entered in April 2017. The mother admitted that, when she learned of the criminal charges against the father, she did not seek to suspend the father's visitation with the child and that, after he was released from incarceration in June 2017, ^[2] she did not stop the father's contact with the child. Sh...