Davis v. Blackstock

• Decision Date: 09 May 2014
• Docket Number: 2130083.
• Citation: 160 So.3d 310
• Parties: Mark D. DAVIS v. Tonya BLACKSTOCK.
• Court: Alabama Court of Civil Appeals

160 So.3d 310

Mark D. DAVIS

v.Tonya BLACKSTOCK.

2130083.

Court of Civil Appeals of Alabama.

May 9, 2014.

Certiorari Denied Aug. 22, 2014

Mark D. Davis, pro se.

Lindsay Mussleman Davis of Holt, Mussleman, Morgan & Alvis, Florence, for appellee.

Opinion

PER CURIAM.

Mark D. Davis (“the father”) and Tonya Blackstock (“the mother”) have appeared before the appellate courts of this state on numerous previous occasions. For a thorough discussion of the history of the parties' litigation, see Davis v. Blackstock, 47 So.3d 796 (Ala.Civ.App.2007) ( “Davis I ”); Ex parte Blackstock, 47 So.3d 801 (Ala.2009) ; Davis v. Blackstock, 47 So.3d 816 (Ala.Civ.App.2010) (“Davis II ”); Ex parte Davis, 82 So.3d 695 (Ala.Civ.App.2011) ; Davis v. Blackstock, 159 So.3d 708 (Ala.Civ.App.2013) (“Davis III ”); Davis v. Blackstock (No. 2120112, April 5, 2013), 161 So.3d 308 (Ala.Civ.App.2013) (table); and Davis v. Blackstock, 159 So.3d at 728 (Ala. Civ.App.2013) (opinion on return to remand) (“Davis IV ”).

In Davis I, the father appealed a September 1, 2006, judgment that modified custody of the parties' minor child to award the mother primary physical custody of the child and ordered the father to pay child support. This court reversed on the custody issue. Davis I, supra. Our supreme court reversed that decision, holding that the trial court had not erred in awarding the mother primary physical custody of the child, and it remanded the matter to this court. Ex parte Blackstock, supra. On remand, this court affirmed the custody modification but determined that the trial court had made an error in determining the father's child-support obligation; accordingly, this court reversed the child-support award and remanded the case for the child-support award to be recalculated. Davis II, supra.

On remand from Davis II, the father asserted a number of jurisdictional challenges to the trial court's subject-matter jurisdiction to enter the September 1, 2006, custody-modification judgment that had been reviewed in Davis I, Ex parte Blackstock, and Davis II, and, on November 10, 2010, he moved for a modification of custody of the child. The trial court denied the father's jurisdictional challenges, and the father petitioned for a writ of mandamus. This court denied the petition for a writ of mandamus, determining that the trial court had properly exercised its jurisdiction. Ex parte Davis, supra.

On July 9, 2012, the trial court conducted an ore tenus hearing, purportedly to calculate child support in compliance with this court's holding in Davis II ; it also received evidence on, among other issues, the father's pending claim seeking a modification of custody. On August 3, 2012, the trial court entered an order setting child support. The trial judge also recused himself at that time. In November 2012, during the hearing on the father's purported postjudgment motion, the father withdrew his pending custody-modification claim. The new trial judge entered a final judgment in the matter, and the father timely appealed. Davis III, supra.

In Davis III, this court held, among other things, that the trial court had failed to comply with the mandate in Davis II in determining the father's child-support obligation. Therefore, this court reversed the judgment and remanded the case for the entry of a corrected child-support award within 60 days of the date of our opinion in Davis III.

On remand from Davis III and in compliance with this court's directions in Davis II, the trial court entered a judgment on April 29, 2013, in which it recalculated the father's child-support obligation to be $506 per month. In addition, the trial court found the father's child-support arrearage to be $35,519.37, and it denied the father certain credits he had sought against that arrearage. On return to remand, this court allowed the parties to submit amended briefs regarding that new, April 29, 2013, judgment. This court then affirmed the April 29, 2013, judgment. Davis IV, supra. Our supreme court denied the father's petition for a writ of certiorari from this court's decision in Davis IV on September 13, 2013.

The father initiated the current custody-modification action in the trial court on July 30, 2012, and the action proceeded in that court while Davis III and Davis IV were pending in the appellate courts. In his July 30, 2012, modification complaint, the father sought an award of custody of the child and an order placing restrictions on any visitation awarded the mother based on allegations that the mother was exposing the child to “unsuitable and/or immoral behaviors.” The father later amended his complaint to allege, among other things, that the mother was not properly addressing the child's medical conditions. In his July 30, 2012, modification petition, the father also persisted in his arguments that the September 1, 2006, judgment was void for want of jurisdiction.

Also on July 30, 2012, the same date on which he filed his custody-modification petition, the father filed an ex parte motion for a temporary restraining order. In that motion, the father alleged that the mother sometimes left the child with the mother's sister, Tina Smith (hereinafter “the aunt” or “Tina”), and Tifanie Reaves (“Tifanie”), the woman with whom the aunt is engaged in a relationship. In his July 30, 2012, ex parte motion for a temporary restraining order, the father also alleged that the aunt had a vicious dog, a dachshund, that had bitten the child in June 2010. The father sought an order preventing the mother from allowing the child to be exposed to the aunt and/or the dog.

The mother answered the father's July 30, 2012, modification petition and sought an award of an attorney fee, citing the continual litigation between the parties. The mother also counterclaimed, seeking to have the father held in contempt for his continued failure to pay child support and requesting the award of an attorney fee with regard to that claim.

On October 22, 2012, the father filed a motion for a preliminary injunction, reiterating the same allegations he had asserted in requesting a temporary restraining order. On October 25, 2012, the trial court entered an order denying the father's motion for a preliminary injunction. The father appealed, and this court affirmed without an opinion. Davis v. Blackstock, (No. 2120112, April 5, 2013), 161 So.3d 308 (Ala.Civ.App.2013) (table).

The trial court conducted an ore tenus hearing on July 22, 2013, and August 26, 2013. At the beginning of that hearing, the mother moved to dismiss her counterclaim seeking to have the father held in contempt for his failure to pay child support as ordered; in doing so, the mother referred to a separate action initiated by the State of Alabama seeking the same relief, and she represented that she would assert her contempt claim in that separate action. However, the mother renewed her request for the award of an attorney fee in response to the father's custody-modification claim, citing the “protracted litigation we have had.” The trial court orally granted the mother's motion to dismiss her contempt claim, and it later reiterated that ruling in writing in its final judgment.

On August 29, 2013, the trial court entered a judgment in which it, among other things, denied the father's modification petition and awarded the mother an attorney fee in the amount of $3,959.49. The father filed a postjudgment motion, which the trial court denied. The father timely appealed.

The evidence in the record on appeal indicates the following pertinent facts. The father testified that in August 2010 the parties' child, who was then eight years old, contacted him by telephone to inform him that she was upset that the mother's boyfriend had spent the night at the mother's home. According to the father, the child also told him that she had seen her mother kissing the boyfriend when the mother was only partially clothed. The father testified that the daughter cited Biblical teachings as part of the concerns she expressed to him.

The father testified that, after that August 2010 conversation with the child, he immediately attempted to contact the mother by telephone but that she did not answer. The father then contacted the mother's mother (“the maternal grandmother”) and informed her of the content of his conversation with the child, and he asked the maternal grandmother to check on the child. The father also informed the maternal grandmother that he had made an audio recording of his August 2010 conversation with the child. The maternal grandmother testified that she went to the mother's home to discuss the incident with the child and that she informed the child about the audio recording in order to ensure that the child was being truthful with her. The maternal grandmother and the father each testified that the child had been extremely upset that the father had recorded his conversation with her and that the child telephoned the father to demand that the father delete the recording. The father testified that he had erased the recording after the child became upset and asked him to do so.

The mother denied that the child had witnessed her kissing the boyfriend when she was only partially dressed. The mother testified that the boyfriend was napping and that she was changing clothes when the child entered her room. The mother testified that, since 2010, her boyfriend has not stayed overnight in her home. The father agreed with that assertion; however, he alleged that the mother and her boyfriend sometimes went out of town together, that the parties' child “knows that [it] is wrong” for the mother to engage in sexual relations outside of marriage, and that the mother's relationship with her boyfriend upsets the child.

The father also testified that in July 2010 the child had been bitten by a small dog, a dachshund, owned by the mother's sister, Tina. The father testified that the mother had informed him that Tina had “gotten rid of” the dog that had bitten the child. However, the...