JSM v. PJ

• Decision Date: 03 December 2004
• Citation: 902 So.2d 89
• Parties: J.S.M. v. P.J.
• Court: Alabama Court of Civil Appeals

902 So.2d 89

J.S.M. v. P.J.

2030812.

Court of Civil Appeals of Alabama.

December 3, 2004.

Roy O. McCord of McCord & Martin, Gadsden, for appellant.

Sheila C. Field of Field, Field, Starr & Williamon, LLC, Anniston, for appellee.

PER CURIAM.

On December 31, 2003, P.J. filed a petition seeking custody of A.H.M. ("the child"). Attached to her petition, P.J. filed affidavits that alleged facts indicating that the child was a dependent child, as defined under § 12-15-1(10), Ala.Code 1975. P.J. is not related to the child. The child, who was almost 14 years old at the time of the hearing in this matter, had resided with P.J. for approximately 13 years. At the time P.J. filed her petition, the child had been living for several days with his father, J.S.M. ("the father").

The father filed a motion to strike P.J.'s pleadings and affidavits, and he moved to dismiss the petition for custody; the father did not file an answer to P.J.'s petition. On April 13, 2004, the trial court¹ conducted a hearing at which it received ore tenus evidence. At the beginning of that hearing, the trial court denied the father's motion to strike and the father's motion to dismiss P.J.'s December 31, 2003, petition. On May 4, 2004, the trial court entered a judgment in which it found the child to be dependent, awarded custody of the child to the father, and awarded P.J. visitation with the child. The father filed a postjudgment motion;² that motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.; Rule 1(B), Ala. R. Juv. P. The father timely appealed.

Initially, we note that the father argued before the trial court that if the trial court considered the matter as a dependency action, it should only consider the issue whether the child was dependent after December 31, 2003, the date on which P.J. filed her petition seeking custody of the child. P.J. did not object to that argument. The trial court ultimately ruled that it would hear the action as a dependency action and that it would consider only evidence pertaining to the issue of the child's dependency after the December 31, 2003, date of filing of P.J.'s petition.³ During the hearing, the father occasionally objected to questions pertaining to facts or events that occurred before December 31, 2003, and the trial court sustained those objections. However, the father failed to object to the introduction of other testimony, predominantly that given by the child, that pertained to events that occurred before December 31, 2003.⁴ Therefore, this opinion includes a recitation of the evidence to which the father failed to object.

The record on appeal indicates that before the dispute that forms the basis of this appeal the child had lived for virtually all of his life with P.J. It appears that the child's mother left the father and the child shortly after the child's birth; the mother was not a party to this action. At the time of the hearing in this matter, the child was almost 14 years old and had lived with P.J. since he was 4 months old. The father had executed some guardianship papers in favor of P.J. so that she would have the authority to take actions such as obtaining medical treatment for the child. The father did not sign documents transferring custody of the child to P.J., and no court order exists that awards P.J. custody of the child.

P.J. testified that the father took custody of the child on Saturday, December 27, 2003; it appears from the record that both P.J. and the child believed that the child was merely going to visit the father for the weekend. P.J. and the child each testified that the child called P.J. from church on Sunday, December 28, 2003, and that, after the child informed P.J. of the father's intention not to return him to P.J.'s home, the child asked P.J. to come to the church to pick him up. P.J. went to the church, and a dispute arose between P.J. and the father. P.J. testified that the father informed her that her services as the child's "babysitter" were no longer required. The child testified that he ran away from the church and that some friends took him to P.J.'s home. The police interceded at P.J.'s home, and, after the child had run away again and had again been recovered, the officers persuaded the child to leave with the father.

P.J. alleged that the child was afraid of the father; she specifically stated that the child was shaking and upset during the December 28, 2003, incident. P.J. testified that after December 28, 2003, the child had to sneak out of the father's home in order to contact her by telephone. P.J. also testified that during their telephone conversations the child had told her that he was unhappy living with the father and that the child had cried.

The father testified that he took the child from P.J. because he believed that P.J. was exploiting both the child and him; the father alleged that P.J. wanted the child to take care of her as she grew older. The father also alleged that P.J. had isolated the child and that the child had no friends outside of school. The father denied P.J.'s accusations that he drank to excess. The father testified that the child had never seen him intoxicated and that he had never struck the child; the child confirmed that testimony. The father stated that the child seemed happy to be living with him and that he had noticed no signs of any separation anxiety being expressed by the child as a result of being removed from P.J.'s home. The father testified that he thought that P.J. was lying when she asserted that the child was sneaking out of the father's home in order to contact her by telephone.

At the time of the hearing in this matter, the father had been married to his third wife, B.R.M. ("the wife"), for approximately two years. The father and the wife live in a house that has four bedrooms and an office. The wife testified at the hearing and stated that during her marriage to the father the child had visited the father's home once every two to three weeks. The wife testified that, although the child had been uncomfortable living with her and the father for the first few weeks, at the time of the hearing the child appeared to be happy in their home. The wife stated that the child had been living with her and the father for 110 days at the time of the hearing; she agreed that at the time of the hearing the child was approximately 4,745 days old.

The wife testified that the child attended church regularly and that she and the father limited the time the child could use the Internet to two hours each night. The wife testified that she had offered to allow the child to use the telephone on a number of occasions but that she had not specifically mentioned that he could call anyone in particular. The wife stated that there was no reason the child would have to sneak out of the house in order to contact P.J.

The child is an excellent student; he maintained his grades when the move to his father's home necessitated a change in schools. The child is also proficient at using a computer, and he assists in managing an Internet Web site. The child testified that he had played soccer for two years while living with P.J. but that he had lost interest in soccer. The child also stated that while he had made new friends at his new school he had more friends at his old school.

The child testified that he had lived with P.J. for almost his entire life, that he considered her home to be his home, and that he wanted to live with P.J. rather than with the father. According to the child, P.J. lives in a mobile home in which he has his own room; he stated that P.J. had provided him a comfortable home and adequate meals and clothing. The child testified that he had to sneak out of the father's home to telephone P.J. because the father and his wife had prohibited him from contacting P.J.; he also stated that the father had told him that he would never see or speak to P.J. again.

According to the child, before December 28, 2003, he had visited with the father "sporadically." The child testified that he typically visited with the father every two or three weeks on Sunday. As the father points out in his brief on appeal, the child also stated that in 1999 the father started "forcing" the child to "live with" the father on weekends. The child explained his reluctance to live with the father on weekends by stating that "[the father] had never been there for me, so why start now?"

It is not clear from the record for what period of time the child spent entire weekends with the father. According to the child, he visited the father every few Sundays until 1999. Also, the child, in speculating on why the father had not given him any gifts for Christmas 2003, stated that he and the father had not seen each other much that year. The testimony of the father's wife also indicates that the father visited the child only every two to three weeks during their marriage; the father and the wife had been married for approximately two years at the time of the April 13, 2004, hearing in this matter.

The child testified that he had been frightened of the father in the past because the father had threatened him with never seeing P.J. again; he stated that the father had not acted on those threats until December 2003. Although the child testified that he was not, at the time of the hearing, afraid of the father, he testified that the father has a temper and has yelled at him and called him names. The child testified that the father's wife had interceded on the child's behalf and that the father had not lost his temper recently.

On questioning by the trial court, the child testified that if the trial court were to award custody to the father, he would want to be allowed to see P.J. as much as possible but that he did not know if the father would ever allow him to maintain a relationship with P.J.

In his brief on appeal, the father repeatedly refers to P.J. as a "babysitter" or a "nanny," who the father repeatedly...