K.E.W. v. T.W.E.

• Citation: 990 So.2d 375
• Decision Date: 20 July 2007
• Docket Number: 2060187.
• Parties: K.E.W. v. T.W.E.
• Court: Alabama Court of Civil Appeals

990 So.2d 375

K.E.W. v. T.W.E.

2060187.

Court of Civil Appeals of Alabama.

July 20, 2007.

Rehearing Denied September 14, 2007.

Certiorari Denied March 14, 2008 Alabama Supreme Court 1070021.

Elizabeth H. Huntley, Clanton, for appellant.

Elizabeth Barnes Hilyer of Barnes & Hilyer, Clanton, for appellee.

MOORE, Judge.

K.E.W. ("the father") appeals from a judgment of the Chilton Circuit Court ("the trial court") denying his petition for a change of custody of the child born of his marriage to T.W.E. ("the mother"). We reverse the trial court's judgment.

Procedural History

On January 2, 1997, the trial court entered a judgment divorcing the mother and the father, awarding custody of the parties' child to the mother, and awarding the father visitation. On January 6, 1999, the trial court modified the divorce judgment to expand the father's visitation rights to every other weekend. On February 17, 2006, the father filed a petition requesting custody of the child, alleging, among other things, that the mother had concealed that D.M.E., the man she had married three years earlier and who currently resided with her and the child, was a registered child sex offender.

On March 9, 2006, after conducting a hearing on a motion for an emergency change of custody filed by the father, the trial court entered an order awarding the father pendente lite custody of the child and awarding the mother visitation, provided the mother's husband would not be present during the visitation.

The trial court conducted a final hearing on August 10 and August 29, 2006. On September 6, 2006, the trial court entered a judgment denying the father's petition for custody. On October 5, 2006, the father filed a motion to alter, amend, or vacate the September 6, 2006, judgment. The trial court denied the father's motion on October 23, 2006. The father filed his notice of appeal on November 28, 2006.

Facts

The parties' child, a daughter, was born on May 17, 1996. After the parties divorced in 1997, the child has resided with the mother in trailer parks in Jemison and Clanton. According to the parties, the child is naturally withdrawn and quiet. The child is affectionate with her mother, but she has not developed a strong or affectionate bond with her father or any other adult. A church member who drove the child to church in a church van testified that the child seemed well-behaved.

The father married another woman in May 1997. They had a daughter together, who at the time of trial was nine years old. The father lives 10 miles from the mother, in Shelby County. The father has been steadily employed since he married his current wife. He has continuously paid child support and has exercised his visitation with the child. All parties agree that the father is a good father.

In the latter part of 2000, the mother met D.M.E. at the restaurant where she was working. The two started dating two or three weeks later. According to the mother's testimony, D.M.E. informed her early in their relationship of charges that had been filed against him for allegedly committing sex crimes. D.M.E. testified that he had been charged with three different sexual crimes against children, all involving improper touching. He had not been convicted of the first two charges, but another charge was still pending. Because of those charges, at first, the mother would not let D.M.E. stay overnight with her and the child. However, after she had been dating D.M.E. for four months, she felt her daughter would be safe around him. The mother talked to a "bunch of people," but not the alleged victims, and she became convinced that D.M.E. had been falsely accused of the sex crimes. The mother further testified that "my Lord told me" the child would be safe around D.M.E.

In 2001, after the mother had concluded that D.M.E. had not committed any sex crimes, the mother and the child moved in with D.M.E. D.M.E. testified that, after the mother and child moved in, his lawyer advised him to enter a guilty plea in the pending criminal case. According to D.M.E., his criminal attorney told D.M.E. that he would be convicted and receive a 30-year sentence if he did not plead guilty but that, if he pleaded guilty, he would spend only 1 night in jail and be placed on probation. D.M.E. talked it over with the mother and several other people before deciding to follow his lawyer's advice. He pleaded guilty to improper touching of a child and, thereafter, registered as a sex offender. Nevertheless, D.M.E. maintained in pretrial psychological counseling sessions and at the trial in this case that he had not committed any sexual act against a child and that he had made a mistake by pleading guilty to the offense.

According to the mother's testimony, she informed the father on March 24, 2002, at a gasoline service station in Jemison of D.M.E.'s criminal history. The mother testified that the father had simply shrugged his shoulders and walked away. The father denies this conversation took place.

After living with D.M.E. for two or three weeks, and after D.M.E. had pleaded guilty, the mother and D.M.E. married. At first, D.M.E. resided in the home with the mother and the child. However, D.M.E. testified that his probation officer informed him that he could no longer reside with a minor. Thereafter, D.M.E. moved out of the residence. He lived in his truck for a time before moving into a travel trailer. A report entered as an exhibit in the case indicated that D.M.E. had told his psychologist that in June 2005 "the law changed" and that he had moved back in with the mother and the child. At trial, the mother testified that she had explained these unusual living arrangements to the child by telling the child that D.M.E. had been wrongfully convicted of a sex crime that he did not commit.

At the time of trial, D.M.E. was working 10 to 14 hours per day. D.M.E. testified that after work he would return to the home where the mother and the child resided with D.M.E.'s child from a previous marriage. D.M.E. would stay with them until they went to sleep, at which time he would go sleep in a travel trailer.¹ D.M.E. would then get up early in the morning and leave for work. The mother's stepfather testified that he had observed D.M.E. and the family's routine and that he found D.M.E. to be a good man with a good relationship with the child.

D.M.E. testified that although he was at the child's home at all times except when he was working or sleeping, he never spent any time alone with the child. D.M.E. said the two had developed a good relationship, although not an affectionate one. According to D.M.E., when the child was younger, he would raise his voice, curse her, and discipline her with spankings with a belt, especially when she would lie or talk back. However, he had not used such discipline for some time prior to the trial. D.M.E. denied at trial that he had done anything adverse to the child that would constitute molestation or abuse. He testified that he had taught the child how to cultivate plants. They also went to movies and went camping together with the mother at Dauphin Island or Biloxi, Mississippi. D.M.E. further testified that he attends church twice a week and that he has stopped drinking and cursing. A church member testified that D.M.E. appeared to be a good man who could be trusted around children. It is undisputed that D.M.E. is the sole financial provider for the mother.

The father testified that on February 13, 2006, he discovered D.M.E. was a registered sex offender. He sought legal representation within three or four days after discovering that fact. He filed his petition for a change of custody on February 17, 2006. The father testified that he was concerned for the child's safety. He understood that D.M.E. had pleaded guilty to a sex crime, and he believed that D.M.E. would not have entered such a plea unless he had committed the crime. The father also expressed concern over bruises he and his wife had observed on the child and concern that the child was being subjected to verbal abuse by D.M.E. and the mother.

The trial court awarded the father pendente lite custody on March 9, 2006. Before custody was transferred from the mother to the father in March 2006, the mother testified that the child was a good student; however, the child had recently made a "D" in one class. After the custody transfer, the parties agreed that the child's grades had generally improved and that she had made the A/B honor roll for the first time. The father testified that the child also expressed a new interest in extracurricular activities such as baton and cheerleading. The father also testified that the child had participated in family outings with the father, her stepmother, and her half-sister; the family had conducted cookouts and had gone bowling, swimming, and to the movies during those outings. According to the father, the child seemed to open up to him and his family much more than she had previously. The father testified that he felt that the child had suffered from low self-esteem before the change of custody but that her self-esteem was improving under his care. He admitted, however, that his relationship with the child was still not as good as the relationship he shared with his other daughter.

According to the mother, the child enjoyed her relationship with her stepmother and her half-sister, but complained that the father was away fishing a lot. The mother admitted that the child had made no indication that anything harmful or inappropriate had occurred while she was in the custody of her father, but the mother testified that the child consistently expressed a desire to return to the mother's home.

In March 2006, D.M.E. underwent a psychological evaluation. According to a report admitted into evidence, the psychologist determined that "there was no evidence obtained during this evaluation to suggest that [D.M.E.] poses a risk to any children around him. An assessment of the...