H.H.J. v. K.T.J.

• Decision Date: 14 December 2012
• Docket Number: 2110583.
• Citation: 114 So.3d 36
• Parties: H.H.J. v. K.T.J.
• Court: Alabama Court of Civil Appeals

114 So.3d 36

H.H.J.

v.K.T.J.

2110583.

Court of Civil Appeals of Alabama.

Dec. 14, 2012.

James C. Cashion, Hamilton, for appellant.

Jonathan B. Lowe and Matthew B. LeDuke of Lowe Mobley Lowe & LeDuke, Haleyville, for appellee.

PER CURIAM.

H.H.J. (“the father”) and K.T.J. (“the mother”) were married on September 28, 1986. One child, H.R.J. (“the child”), was born of the parties' marriage. The father engaged in an extramarital relationship with C.E.C., who gave birth to the father's two younger children (“the half siblings”). The existence of the father's relationship with C.E.C. and of the half siblings was unknown to the mother and to the child for a number of years. The mother eventually discovered the father's relationship with C.E.C., and, as a result, the parties were divorced pursuant to a November 9, 2009, judgment (“the divorce judgment”) of the trial court.

Among other things not pertinent to this appeal, the divorce judgment awarded the parties joint legal and physical custody of the child. In addition, the trial court included in the divorce judgment the following restriction on the father's custodial periods with the child:

“The [father] is strictly enjoined from having any contact with or being in the presence of [C.E.C.] ... while [the child] is in his custodial care. The [father] should pay special attention to this paragraph as a violation of the same would constitute a material change in circumstances in the eyes of this court. This court is firmly convinced that contact with [C.E.C.] is not presently in the best interest of [the child] and in fact would be quite detrimental to the emotional well being of [the child].”

The father married C.E.C. (hereinafter referred to as “the second wife”) in December 2010. On January 26, 2011, the mother filed a pleading seeking to modify custody and to have the father held in contempt. As the basis for her claim seeking an award of primary custody of the child, the mother asserted, among other things, that the father's marriage to the second wife and his alleged failure to visit the child since January 2010 constituted a material change of circumstances warranting a custody modification. The contempt claims pertained to certain support requirements for the child. The father answered the mother's pleading on February 25, 2011.

The mother filed a motion seeking a hearing on pendente lite issues on March 8, 2011. The trial court conducted an evidentiary hearing on the pendente lite issues on April 18, 2011. On May 31, 2011, the trial court entered an order awarding the mother pendente lite custody of the child and awarding the father alternating weekend visitation at the father's home. In that pendente lite order, the trial court again specifically included the requirement that the child “shall not be in the presence of [the second wife]” during the father's visitation. Furthermore, the pendente lite order required the mother to post bond in the amount of $5,000. The trial court warned the mother that if she violated any provisions of the pendente lite order or of the original divorce judgment, she could be held in contempt and could forfeit the $5,000 bond. That portion of the pendente lite order requiring the mother to post a bond was entered in response to the trial court's determination that the mother had “in the past been detrimental to the reestablishment of” the relationship between the father and the child.¹

The trial court conducted a hearing on the merits on November 3, 2011. Although the father had not filed a counterclaim seeking to modify the provision of the divorce judgment prohibiting the child from being in the presence of the second wife, that issue was tried by the express consent of the parties. SeeRule 15(b), Ala. R. Civ. P. (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”).

In its November 21, 2011, modification judgment, the trial court awarded the mother primary physical custody of the child and awarded the father a standard schedule of alternating weekend visitation. The judgment included a provision specifying that after June 17, 2012, i.e., the child's 16th birthday, visitation would be at the discretion of the child. In addition, the November 21, 2011, modification judgment specified:

“3. It is further ORDERED, ADJUDGED AND DECREED that during the visitation period with the [father], ... [the child] shall at no time be allowed to be in the presence of [the second wife]. [The child] and [the child] alone is the only one allowed, at his desire, to deviate from this paragraph. All other provisions of this Court's final judgment of divorce on this issue shall remain in full force and effect.”

(Capitalization in original.) The father filed a postjudgment motion, which the trial court denied. The father filed a timely notice of appeal to this court.

The record on appeal reveals the following pertinent facts. During the modification proceeding, the parties agreed that the mother would receive primary physical custody of the child, and they litigated the issues of child support and the father's visitation with the child. Neither party appealed as to the support issues determined by the trial court, and, therefore, we omit any discussion of those issues. The parties' testimony at the final hearing on the issue of visitation pertained to visitations after the April 18, 2011, pendente lite hearing. The transcript of the evidence from the pendente lite hearing is not contained in the record on appeal; therefore, this court does not have before it evidence presented at that hearing on the issue of the father's visitation with the child before the date of that hearing. We note that the trial court spoke with the child in the presence of the parties' attorneys; the child's statements, although transcribed, were not sworn.

The mother testified that the father had been active in the child's life and involved in his activities before the parties divorced but that the father had done very little with the child since the parties separated. The father also admitted that he did not attend any of the child's extracurricular baseball or basketball games or tournaments. The child is a champion wakeboarder, and, before the divorce, the father had been involved in that sport with the child. The father admitted that, although he exercised his visitation with the child at a lake house, he had taken the child wakeboarding only once or twice during the summer. The father also acknowledged that he had refused to attend any of the wakeboarding competitions in which the child had participated. The father testified that he believed that he would feel uncomfortable attending those wakeboarding events because the mother and some of her friends would be there.

It is undisputed that the child has never met the second wife, that he has no desire to do so, and that he does not wish to visit with the father when the second wife is present. The mother explained that the child does not want to see the second wife because of the manner in which the parties' marriage ended and because the child believes the second wife is the reason the father is only minimally involved in the child's life. The mother testified that she did not believe that the child should be forced to have contact with the second wife. The father testified that the child “needs to try” to visit him at his home with the second wife and the half siblings.

Although the child did not testify, he did make certain statements to the trial court. Those statements indicate that the child is hurt by what he perceives as the father's failure or refusal to be actively involved in his life, as the father was before the parties' divorce. The child also expressed a disinclination to meet the second wife or visit the father in her presence.

The father argues that the trial court erred in maintaining the restriction on his visitation that specifies that the child is not to visit the father in the presence of the second wife unless the child desires to do so. With regard to reviewing a judgment resolving a dispute over visitation, this court has stated:

“ ‘ “ ‘ “[C]ases in Alabama have consistently held that the primary consideration in setting visitation rights is the best interests and welfare of the child. Furthermore, each child visitation case must be decided on its own facts and circumstances.” Fanning v. Fanning, 504 So.2d 737, 739 (Ala.Civ.App.1987) (citations omitted). “When the issue of visitation is determined after oral proceedings, the trial court's determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987).” Dominick v. Dominick, 622 So.2d 402, 403 (Ala.Civ.App.1993).’ ” '

“K.B. v. Cleburne Cnty. Dep't of Human Res., 897 So.2d 379, 387–88 (Ala.Civ.App.2004) (quoting K.L.R. v. L.C.R., 854 So.2d 124, 132 (Ala.Civ.App.2003), quoting in turn K.L.U. v. M.C., 809 So.2d 837, 840–41 (Ala.Civ.App.2001)).”

P.S. v. M.S., 101 So.3d 228, 233 (Ala.Civ.App.2012). “The trial court has much discretion in ascertaining visitation rights, and each case must stand upon its own peculiar facts and the personalities involved.” Fillingim v. Fillingim, 388 So.2d 1010, 1011 (Ala.Civ.App.1980) (citing Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980); Phillips v. Phillips, 53 Ala.App. 191, 298 So.2d 613 (1974); and Atkinson v. Atkinson, 45 Ala.App. 428, 231 So.2d 753 (1970)).

The father concedes that, in exceptional cases, it might not be in the best interests of a child to visit a parent. See Watson v. Watson, 555 So.2d 1115, 1116 (Ala.Civ.App.1989). He also points out that a parent cannot be denied visitation when the child is manipulated by the other parent or when the basis for the child's refusal to visit is unreasonable. Shires v. Shires, 494 So.2d 102, 103 (Ala.Civ.App....