Ezell v. Graham

• Decision Date: 12 July 2013
• Docket Number: 2120072.
• Citation: 135 So.3d 979
• Parties: Wendy Graham EZELL v. Christopher GRAHAM.
• Court: Alabama Court of Civil Appeals

135 So.3d 979

Wendy Graham EZELL

v.Christopher GRAHAM.

2120072.

Court of Civil Appeals of Alabama.

July 12, 2013.

Stephen K. Winters of Thompson, Thompson & Winters, Butler, for appellant.

J. Perry Newton and J. Blane Dolbare of Newton and Dolbare, P.C., Butler, for appellee.

PITTMAN, Judge.

Wendy Graham Ezell (“the mother”) appeals from a judgment of the Choctaw Circuit Court, holding her in contempt for her willful failure and refusal to abide by the previous orders of the court concerning visitation by Christopher Graham (“the father”) with the parties' minor son; sentencing her to five days in jail; and suspending the sentence conditioned upon her future compliance with the visitation schedule. We reverse.

Factual and Procedural Background

The parties were divorced in 2002; the mother was awarded sole physical custody of the parties' four-year-old son, and the father was granted visitation rights. In 2006, the son indicated that he did not want to visit with, or to receive telephone calls from, the father. Initially, the mother compelled the son to visit with the father. Later, however, after the son had displayed physical symptoms—headaches, stomach aches, nausea, night sweats, nightmares, and decreased appetite—every time a visitation event approached, the mother took the son to be evaluated by Dr. Rita Lum, a board-certified child and adolescent psychiatrist.

Dr. Lum diagnosed the son as suffering from a generalized anxiety disorder, as well as major depression, oppositional-defiant disorder, and possible attention-deficit disorder. She prescribed medication—aripiprazole and escitalopram oxalate—and recommended counseling for the son. Jean Merrell, a board-certified clinical counselor and psychotherapist, has been the son's counselor since 2006. Her office notes reflect that the son had expressed a desire not to visit the father after the father's remarriage and the birth of a daughter to the father and stepmother. Merrell met with both parents to discuss visitation issues. She recommended that the son not be forced to visit with the father, but that visitation be gradually and incrementally resumed on a “slow-paced schedule of relationship building” between the father and the son.

In May 2010, the father filed a petition seeking a finding of contempt as to the mother, alleging that she had failed to allow him to exercise the visitation rights set out in the parties' divorce judgment. In November 2010, the father filed a motion for an emergency hearing concerning visitation, alleging that he had seen the son for a portion of only 11 days in 2010. Following several continuances, the trial court conducted a hearing on August 10, 2011. On August 25, 2011, the trial court entered an order requiring that the father have visitation beginning on August 27, 2011, from 9:00 a.m. to 10:30 a.m. in a public park; that the visitation be facilitated and supervised by social worker Vickie Hearn; and, thereafter, that visitation occur on alternating weekends beginning at 9:00 a.m. and lasting as long as Hearn determined was appropriate and beneficial to the son. Following the entry of the August 25, 2011, order, the father had three brief visits with the son, two of which were cut short by the son, who stated that he was not feeling well or that he wanted to see a movie with his friends. The father contacted Hearn in an effort to arrange more visits; Hearn contacted the mother, but she was unsuccessful in setting up additional visitation.

On October 21, 2011, the father filed another contempt petition, alleging that the mother had failed to abide by the trial court's August 25, 2011, order. On December 7, 2011, the father moved for an emergency order concerning Christmas holiday visitation. Following a telephone conference with the parties, the trial court ordered that the father have visitation on December 26, 2011. The trial of the father's contempt petitions was set, and continued, several times. In setting the case for trial on September 5, 2012, the trial court ordered that the father have visitation on July 28 and August 12, 2012, and telephone contact with the son twice per week.

At trial, 4 witnesses—the father, the mother, the son, who was then 13 years old, and Hearn—testified. The trial court also received the deposition testimony of Dr. Lum and Merrell. The father stated that he had filed the contempt petition in May 2010 because, in the years following the parties' divorce, his visits with the son had grown shorter and farther apart; sometimes, he said, he had not seen the son for months at a time. The father testified that, even after the entry of the trial court's August 25, 2011, order establishing a revised visitation schedule, he had not been able to see the son between December 26, 2011, and July 28, 2012. When the father was questioned about what actions the mother had taken that indicated her willful failure to abide by previous visitation orders, the father repeated the conclusory allegations contained in his petitions, stating, for example, that the mother “would not let [him] have his son when she was supposed to” or that the mother “would not allow [him] to pick up [the] son and have visitation with him.”

The father maintained that he was prepared to conduct his visits in a manner that would further the best interests of the son. He acknowledged that the son's anxiety problems had existed since the son was seven years old, and he agreed that, because of the anxiety problems, the son should not be forced to visit him. The son testified that he did not want to visit the father because, he said, he “gets sick” when he visits. He testified that the mother had not prevented him from visiting the father.

The mother testified that she had never failed or refused to let the son visit the father. During times when she had compelled the son to visit with the father, the son had become sick with vomiting, diarrhea, and night sweats. The mother stated that she was not willing to punish the son in order to make him visit the father, but, she said, she would cooperate, within the limitations of the recommendations made by Dr. Lum and Merrell, in order to reestablish the son's relationship with the father.

Dr. Lum testified that she had no information indicating that the mother was the source or cause of the son's unwillingness to visit with the father. To the contrary, Dr. Lum said, the mother had encouraged the son to visit the father and had stated that her life would be easier if the son would visit with the father. Dr. Lum reiterated her recommendation that the son not be forced to visit the father against his will. Nevertheless, she opined that, because the son's anxiety appeared to be triggered by visits with the father, the son would not be able to visit the father without both medication and therapy. She stated that the son, with the mother's approval, had recently decided to discontinue the psychotropic drugs that had been prescribed for him. The father stated that he had been unaware of any specific issues concerning the son's medications but that he preferred that the son not take drugs as strong as those that had been prescribed by Dr. Lum.

Merrell stated that during the period between October 1 and December 26, 2011, when the son had not visited the father, the son had been more sociable; his mood had leveled off; and he had not experienced night terrors. Merrell agreed with Dr. Lum that the son should not be forced to visit with the father and that the mother had not caused the son's reluctance to visit. She stated: “I want to make it very clear that the problem is inside of [the son]. [I]t's not this man or this woman. Okay? I really want—I understand that somehow has gotten confused. This is [the son's] biochemistry, okay, and that is why medication is needed as well as the counseling.” On cross-examination Merrell confirmed that she had directly asked the son why he did not want to visit the father. To her question, the son had replied, “Because I get sick.”

On September 28, 2012, the trial court entered a judgment that states, in pertinent part:

“2. The court finds from the evidence and testimony that [the mother] has willfully failed and refused to allow [the father] to exercise his court-ordered visitation with his minor son ... as ordered in the divorce [judgment] of May 22, 2002, and the court order of August 25, 2011. The court does not find a justifiable reason for the actions of [the mother].

“3. The [mother] is hereby held in contempt of court for her refusal to abide by the previous orders of this court concerning visitation by the [father] with his minor son.

“4. As a result of her contempt, the [mother] is hereby ordered to serve five days and five nights in the Choctaw County Jail for her contempt of court.

“5. The sentence is hereby suspended, conditioned upon the [mother's] complying with the remaining provisions of this order concerning visitation by the [father] with the minor child. In the event the [father] does not receive all visitation with the minor child as ordered hereinafter, a writ for the arrest of the [mother] shall be issued without any additional hearing and she shall be required to serve the entire five day sentence as stated in paragraph four.”

The judgment further set out a visitation schedule for the father, directed that visitation be facilitated and supervised by Hearn, ordered that Hearn be compensated at the rate of $25 per hour, and required the mother to pay all costs associated with Hearn's supervision until December 31, 2012, after which the parties would share the cost. Finally, the trial court set Monday, March 11, 2013, “for a review of the visitation schedule and to determine what changes are to be made to the ... schedule.”

On October 22, 2012, the mother filed a notice of appeal. On October 23, 2012, the trial court issued a writ of arrest for the mother for an alleged violation of the September 28, 2012, judgment. This...