J.C.L. v. J.B.L.

Decision Date05 August 2022
Docket Number2200841
PartiesJ.C.L. v. J.B.L.
CourtAlabama Court of Civil Appeals

Appeal from Autauga Juvenile Court (JU-21-13.01)

THOMPSON, PRESIDING JUDGE

J.B.L ("the father") filed in the Autauga Juvenile Court ("the juvenile court") a petition seeking to terminate the parental rights of J.C.L. ("the mother") to a minor child born of their marriage in 2009. After conducting a hearing at which ore tenus evidence was received, the juvenile court entered a judgment on June 30, 2021, granting the father's petition. The mother has timely appealed.

The record reveals the following pertinent facts. The mother and the father married in 2004. At the time of their marriage the mother had two children, Ki.H. and Ko.H., from a previous relationship; those two children were then approximately 11 years old and 4 years old, respectively.

Approximately four years after the child's birth, the mother and the father separated, and the mother filed an action in the Autauga Circuit Court ("the circuit court") seeking a divorce from the father. The mother's testimony at the June 24, 2021, hearing in this matter indicates that, after the parties separated, the mother moved to Irondale, a suburb of Birmingham, to live in a home owned by her mother and in which Ki.H. was living while he attended a nearby college. The father, the child, and Ko.H. remained living in the marital residence in Prattville.

On December 18, 2014, the circuit court entered a divorce judgment that incorporated a settlement agreement reached by the parties that addressed the division of marital property child custody, and child support. In pertinent part, that judgment provided:

"2. CHILD CUSTODY
"A. The parties shall have joint legal and physical custody of the minor child . . ., but this custodial agreement shall only go into effect once the [mother] relocates to a residence which is thirty (30) straight-line miles or less from the current marital residence. Until then, the parties shall have joint legal custody but with the [father] having primary physical custody. So long as the [mother] is more than thirty (30) straight line miles from the marital residence, the [father] shall have the final decision-making authority as to those issues materially impacting the child. ... The [father's] address shall be used for determining which school district the child shall attend. He shall have the final decision-making authority for all issues related to the education and health of the child. The [mother] shall have the final decision-making authority for all issues dealing with the extra-curricular activities in which the child shall participate, but the same must be conducted or at least originate in Autauga County, plus all issues dealing with religion.
''. "3. CHILD SUPPORT
"The [father] shall pay $300 in the amount of child support to the [mother] beginning that first day of the first month after she permanently relocates to a residence that is thirty (30) straight-line miles or less from the current marital residence. The same shall continue each month thereafter in the same amount until the child reaches the age of majority (i.e., 19), becomes self supporting, becomes emancipated, or becomes married. This amount is an upward deviation [from the amount recommended in the child-support guidelines] as agreed to by the [father] so as to facilitate a prompt resolution.
"4. CUSTODIAL PERIODS
"Both patties shall have equal access to and equal custodial periods of time with the minor child at all reasonable times and places, as the parties mutually agree, including but not limited to the following:
"a. Once the [mother] has relocated to a permanent residence that is no more than thirty (30) straight-line miles from the current marital residence, the parties shall then enjoy week-on/week-off custodial periods of time with the child. ...
"...
"m. The [mother] shall not live more than thirty (30) straight-line miles from the current marital residence unless she is willing for the [father] to have the child in his custodial care in the same manner as now set forth by the pendente lite order in this case. Thus, she would be entitled to the child for two (2) weekends in a row, then the [father] would have the child for the next one (1) weekend. This rotation schedule shall apply so long as she lives in a location more than thirty (30) miles from the current marital residence. Only her holiday custodial times would remain the same."

At the June 24, 2021, termination-of-parental-rights hearing, the mother testified that she did not move within 30 straight-line miles of the parties' former marital residence, and, for that reason, the father had maintained "primary physical custody" of the child. We note that an award of "primary physical custody" of a child is, under Alabama law, actually an award of sole physical custody, as that term is defined in § 30-3-151(5), Ala. Code 1975. S.J.H. v. N.T.S., 301 So.3d 843, 847 n.4 (Ala. Civ. App. 2020); Whitehead v. Whitehead, 214 So.3d 367, 371 (Ala. Civ. App. 2016).

On May 21, 2018, the circuit court entered a judgment modifying the parties' divorce judgment; that modification judgment incorporated the terms of a settlement agreement reached by the parties. That judgment provided, in pertinent part, that the father would have sole custody of the child, that the mother would receive a standard schedule of visitation with the child, and that the parties would enter into family counseling to address any ongoing issues; the cost of the family counseling was to be equally divided between the parties. The May 21, 2018, modification judgment did not set forth any child-support obligation for the mother.

Approximately one year later, on July 25, 2019, the circuit court entered a second modification judgment with regard to the parties' divorce judgment. In that July 25, 2019, modification judgment, the circuit court noted that the mother had failed to appear at the hearing upon which that judgment was based. That judgment states, in part:

"The record of testimony is ample in this matter and does not need to be recited in this order, other than to state the [mother] has shown a clear disregard for the provisions of this Court's orders and has failed to consider the best interests of the minor child. The [mother] has exhibited a complete failure to communicate with the [father]. She has also completely failed to cooperate in the previously agreed-upon counseling with Thea Langley. The [child's] guardian ad litem and the counselor both reported serious concerns about the [mother's] lack of cooperation and ability to make rational decisions.
"The weekend prior to the hearing was extremely eventful and included the filing of emergency orders to suspend visitation, involvement of local law enforcement, and other events that were upsetting to all involved. The events of the weekend could have easily been avoided had the [mother] communicated or co-parented with the [father]. The [father] testified to his repeated inability to contact the minor child while in the custody of the [mother]. Furthermore, the Court noted that one of the [mother's] children has resided with the [father] since the time of the initial divorce, even though there is no blood relation between the two. The [father], the counselor, and the guardian ad litem were unanimous in their requests that the [mother's] visitation be suspended. These requests were supported by the evidence presented.
"The parties initially shared joint legal and physical custody of the minor child in their settlement agreement in [the original divorce action]. This joint custody was predicated upon the [mother] relocating to within thirty (30) miles of Prattville, where the parties and minor child lived during the marriage. This was modified to grant the [father] primary physical custody and joint legal custody between the parties in [the first modification action], with the [mother] receiving visitation. The current petition seeks to suspend the [mother's] visitation, limit her communication with the minor child, and require payment of child support.
"Now, after full and final consideration of the testimony presented, together with the pleadings, exhibits, argument of counsel, recommendation of the counselor, and recommendation of the guardian ad litem, it is hereby: ORDERED, ADJUDGED and DECREED as follows:
"CUSTODY: The [father] has sole physical custody of the minor child; therefore the Alabama Supreme Court's standard established in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), is inapplicable in this matter. The [father] was previously vested with sole physical custody of the minor child through the [May 21, 2018, judgment] in [the first modification action]. The [father] shall retain sole physical custody of the minor child. Based upon the evidence presented and the recommendations of the guardian ad litem and the counselor, the [mother's] visitation with the minor child shall be suspended. The [mother's] communication with the minor child shall be limited and monitored as set forth below. The [mother] may have her visitation rights [restored] upon filing a petition to modify this Court's order and meeting the applicable legal standards to prove that visitation is in the best interests of the minor child.
"1.) LEGAL CUSTODY: The [father] is vested with sole legal custody of [the child]."

(Capitalization in original.)

In addition, in its July 25, 2019, modification judgment, the circuit court ordered the mother to pay $240.03 per month in child support, required the parties to continue counseling and awarded the mother telephone visitation with the minor child on Tuesday and Thursday nights. The circuit court also found the mother in contempt and ordered her to pay $3,500, as well as one-half of...

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