Gurganus v. Clay, 2210466

CourtAlabama Court of Civil Appeals
Writing for the CourtMOORE, JUDGE.
PartiesTaylor Gurganus v. Austin Jacob Clay
Docket Number2210466
Decision Date16 September 2022

Taylor Gurganus
v.

Austin Jacob Clay

No. 2210466

Alabama Court of Civil Appeals

September 16, 2022


Appeal from Walker Circuit Court (DR-20-115)

MOORE, JUDGE.

Taylor Gurganus ("the mother") appeals from a judgment of the Walker Circuit Court that, among other things, awarded custody of A.G.-C. ("the child"), who was born on August 25, 2020, to Austin Jacob Clay

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("the father"), subject to the mother's right to visitation. We affirm in part and reverse in part.

Procedural History

On August 31, 2020, the father filed in the Winston Juvenile Court a "verified petition to establish paternity, support, and for primary physical care" of the child. Specifically, he sought an award of joint custody of the child. The father asserted, among other things, that he was a resident of Winston County and that the mother was a resident of Walker County. On September 8, 2020, the mother filed a motion to transfer the case to the Walker Juvenile Court; she asserted that both she and the child were residents of Walker County and that venue was proper in Walker County. On that same date, the Winston Juvenile Court entered an order transferring the case to the Walker Juvenile Court. On October 14, 2020, the father filed in the Walker Juvenile Court a motion to set an immediate hearing. On October 19, 2020, however, the Walker Juvenile Court, on its own motion, entered an order concluding that the case was a custody dispute between the mother and

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the father, rather than a child-support case, as it had been docketed, and it transferred the case to the Walker Circuit Court ("the trial court").

A trial was conducted on February 8, 2022. That same day, the trial court entered an order, which contains the following findings of fact:

"[The father] and [the mother] are the parents to [the child], born 08/25/2020. In reaching a decision regarding the legal and physical custody of [the child], the parties stood on an equal footing such that neither parent enjoyed a favorable presumption. The paramount and controlling concern of the court was the best interest of the child
"[The father] has worked for the same employer for several years and has lived in the same residence for several years. If [the father] needs help with [the child], he has a large extended family living within close proximity to him. [The father] has had a limited time with [the child] but he has not [been] shown to be a danger to the child.
"The court does not doubt [the mother's] love for [the child], but she has issues that are concerning. The first is [the mother] has a pattern of marrying or dating individuals, getting pregnant, and having a child. Then, because she is not happy which is a fleeting moment in time, she divorces the father or leaves the father of the child. She elevates her need for happiness over a child's need for an active full time father.
"The next issue is [the mother's] moving without a stable home. When she met [the father], [the mother] lived with her parents in Parrish, AL. Only a few months after meeting [the father], she moved to Haleyville, AL, to live with [the father].
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After a couple months, [the mother] became pregnant with [the child] and being unhappy, she left the father ... to move back to Parrish with her parents. Sometime after moving in with her parents, [the mother] met her current boyfriend and taking her two children, quickly moved to Cleveland, AL, to live with her boyfriend.
"[The mother] does not see a problem moving in with different men based on her happiness. Her personal stability is controlled by an emotion instead of making appropriate and well-thought-out decisions that are consistent with her well-being and more importantly, her children's best interest. [The mother's] current living arrangement is only stable based on a boyfriend's whims. A boyfriend who has no commitment to [the mother] and the children other than he has allowed them to move into his house.
"Lastly, [the mother] does not have immediate family members within a short distance to help her with [the child]. From the testimony, [the mother's] involvement with her family is only when she moves in with her parents after a failed relationship.
"[The father] is employed with Exxel Outdoors, LLC. He makes $2,947.00 gross a month. [The mother] is employed at Sunbridge Home Healthcare, Inc. grossing $1,365.00 a month. [The child's] health insurance needs are covered by government programs. Even though [the mother] receives child support for her first child, she has most of th[at] child's expenses to maintain. The court will impute a pre-existing child support obligation to her.
"Taking the totality of the circumstances, the court finds [the child's] best interest is served by [the father] having sole legal and sole physical custody of the child."
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The trial court awarded the father sole legal and sole physical custody of the child, and it awarded the mother "reasonable and liberal parenting time with [the child] based on [the mother's], [the father's], and the child's schedules," to "include weekends, occasional weeknights," "major holidays and birthdays, as well as extended periods of time in the summer." The trial court specified, however, that, if the parties could not agree on a visitation schedule, the mother would have a right to visitation with the child on the first weekend of every month, during spring and fall breaks from school in odd-numbered years, alternating weeks during the summer, and during certain specified times on holidays and special events.

On February 10, 2022, the mother filed a postjudgment motion challenging the sufficiency of the evidence in support of the judgment; the trial court denied that motion on March 3, 2022. The mother timely filed her notice of appeal to this court.

Facts

The father testified that, when he first met the mother, she was residing in Parrish with her mother. According to the father, the mother

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had then moved in with him at his residence that he rents in Haleyville, where, at the time of the trial, he had resided for four years. The father stated that he and the mother had dated for eight or nine months and that the mother had continued to reside with him until a month or two before they broke up, when, he said, the mother, who was already pregnant with the child, returned to live with her mother in Parrish. According to the father, for the first three months following the child's birth, the mother had allowed him to visit with the child at his residence for two hours at a time, but, he said, after that three-month period, the mother had allowed him to visit with the child for two hours at a time only at her mother's house. The father testified that there had been an argument between the parties and that the mother had not allowed him to see the child for four months. He stated that, after the parties were in court the last time, when the child was approximately nine months old, the mother had allowed him to exercise visits with the child for a full day. He testified that, beginning in January 2022, the mother had allowed him to have the child for full weekends. The father testified that the mother had denied his requests for additional visitation with the child.

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He stated that, although there had been no issues in exchanging the child, the mother had insisted that he, rather than any of his family members, be the one to pick up the child.

The father admitted that he had not financially supported the child, but he testified that he had purchased diapers, wipes, and clothes for the child and had offered to pay the mother's bills. He stated that he earns $13 per hour working 48 hours per week at Exxel Outdoors, LLC, in Haleyville, where he had worked for 4 years at the time of the trial. The father testified that the child has her own bedroom, with her own bed and toys, at his house. He stated that his mother, his father, and his brother live less than a mile away from him and that his mother would care for the child while he was at work.

According to the father, he and the mother talk at least every other day and he checks up on the child. The father admitted that he needed more parenting time to develop a bond with the child. He stated that he did not know where the child goes to the doctor and that he had not attended the child's doctor visits. The father admitted further that he had not attended any parenting classes other than the cooperative

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parenting class that the trial court had directed him to attend and that he had never had a small baby in the house full time. The father sought joint custody of the child, with the parties exercising equal parenting time.

The mother testified that she was living in Parrish with her parents when she met the father and that she had lived with him for only a month before moving back to live with her parents. She testified that they had separated because she "felt like [she] was only there to, like, take care of the house, and [the father] didn't really show affection and [she] was just not happy." According to the mother, she had not denied the father visitation with the child; however, she admitted that she had limited the duration of the father's visitations in the three months following the child's birth because she had been breast-feeding the child. She stated that, when the child was three months old, the father had begun yelling at her during a visit with the child and that she had told him that he could leave if he was going to continue being disrespectful. The mother testified that, afterward, the father had not seen the child "for four months on his own choices," but, she stated, when the child was 9 or 10

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months old, the father had been allowed to visit from 9:00 a.m. until 5:00 p.m. every other Saturday, that the father and the child were visiting every other weekend at the...

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