KLR v. LCR
| Decision Date | 24 January 2003 |
| Citation | 854 So.2d 124 |
| Parties | K.L.R. v. L.C.R. |
| Court | Alabama Court of Civil Appeals |
Kenneth J. Lay of Legal Services of Metro Birmingham, Birmingham, for appellant.
Corey B. Moore and Candace Stewart-Magee of Weathington & Moore, Moody, for appellee.
L.C.R. ("the father") and K.L.R. ("the mother") were divorced by a December 8, 1993, judgment of the Jefferson Circuit Court, Bessemer Division; that judgment incorporated an agreement reached by the parties. Pursuant to the divorce judgment, custody of the parties' son and daughter was awarded to the mother. The circuit court later entered a 1998 modification judgment that also incorporated an agreement of the parties; the 1998 modification judgment increased the father's visitation with the children. On September 10, 2001, the Department of Human Resources ("DHR") took the children into protective custody because it found that the mother was inadequately supervising the children. On September 12, 2001, the Family Court of Jefferson County (hereinafter "the juvenile court") awarded the father temporary custody of the children. The next day, the father filed a petition in the Jefferson Circuit Court (hereinafter "the trial court") seeking to modify custody of the children. Upon learning of the father's action in the trial court, the juvenile court transferred to the trial court the action relating to the children that was then pending in the juvenile court.
On October 3, 2001, the mother filed in the trial court a motion to dismiss the father's modification petition. In that motion, the mother argued only that there had been no material change in circumstances that would justify a modification of custody of the parties' two children. On October 10, 2001, the mother filed a motion seeking to transfer the action, on the basis of improper venue, to the Bessemer Division of the Jefferson Circuit Court. The trial court denied that motion.
The trial court received ore tenus evidence over the course of a two-day hearing in January 2002. On February 8, 2002, the trial court entered a judgment that awarded custody of the parties' children to the father, ordered the mother to pay child support, and awarded the mother "the right of reasonable access [to] visitation" with the children. Both parties filed postjudgment motions; the trial court denied those motions. The mother appealed.
At the time of the January 2002 hearing, the parties' son was 14 years old and their daughter was 13 years old. The testimony at trial indicated the following. On September 9, 2001, after the father left the son and daughter at the mother's house following his weekend visitation, the children discovered that the mother was not at home. When the mother did not return after several hours, the son became concerned and telephoned one of his teachers. The teacher and the children were unable to locate the mother that evening. The son spent that night with another of his teachers; the daughter stayed with a friend.
The next day, September 10, 2001, the children went to school and, when the mother did not respond to the school authorities' attempts to reach her, the school authorities telephoned the police and DHR. Police officers and a DHR social worker went to the school. One of the son's teachers testified that the mother answered the telephone at her home at approximately 10:30 that morning and that she informed the teacher that she had been "out" the night before. The mother did not go to the school after the son's teacher reached her by telephone. The school authorities telephoned the father; the father arrived at the school within 30 minutes of being contacted. The children went home with the father on the afternoon of September 10, 2001, and they have remained in the father's home since that time.
The mother testified that she had attended a meeting of Alcoholics Anonymous on the night of September 9, 2001. She contended that someone at the children's school had told her it was not necessary for her to come to the school on September 10, 2001.
Both parties admitted using illegal drugs and drinking alcohol during their marriage. At the hearing, the father testified that he had not used illegal drugs in 10 years. The father testified that he drank beer and, on occasion, whiskey. The father has been employed at the same job for 11 years. The father testified that he had moved seven or eight times since the parties' divorce in 1993. Shortly before the children came into his custody in September 2001, the father purchased a house. The father, his new wife, her two children, and the parties' two children all live in that house; each child has his or her own bedroom.
The mother is a recovering alcoholic who admits that she suffered a relapse during a weekend in late August 2001. The testimony about that relapse, which was provided by acquaintances of the mother, indicates that the mother was drinking gin, that she danced naked in a public street, and that she attempted to purchase illegal drugs. The mother testified that she had no recollection of that relapse.
The mother denied that she had used illegal drugs or alcohol on any occasion other than that weekend in late August 2001, when she suffered a relapse. However, at the time they were taken into protective custody, the children made statements indicating that they had seen the mother using illegal drugs. The daughter also alleged that the mother and the mother's boyfriend had offered her marijuana.
In addition, a friend of the mother's testified that before and shortly after the August 2001 incident, he had seen the mother's automobile at a house known as a place where illegal drugs could be purchased. The mother's brother testified that the mother had telephoned him from a bar in October 2001 and had asked him to pay for her drinks at the bar; he testified that he had refused to do so. Also, the father submitted into evidence the transcripts of several conversations in November 2001 between the mother and R.H., the father's brother-in-law, who the father testified is a drug addict. Those conversations had been tape-recorded. In those conversations, R.H. made arrangements to purchase illegal drugs from the mother.
The father testified that he has forbidden R.H. from coming to his home. However, the children testified that between the time they arrive home from school in the afternoons and the time the father or their stepmother arrives home from work, R.H. often visits the father's home. The children testified that they had not told the father that R.H. was still coming to the father's house when the father was not at home.
The daughter has made two allegations of sexual abuse since September 2001. The first allegation was made against the mother's boyfriend, whom the daughter accused of touching her inappropriately. She made similar allegations against a teenaged friend of her stepbrother. A DHR social worker testified that DHR had investigated those allegations and had determined that they were either untrue or "not indicated."
The father acknowledged that his relationship with the children has been strained since they came to live with him in September 2001. Shortly after he went to live with the father, the son threatened to commit suicide. The father testified that, as a result of that threat, the son has been in counseling since mid-October 2001.
The father testified that the children were generally distant or withdrawn when they returned from visitation with the mother. The mother testified that there was "a great possibility" that she had made comments to the daughter indicating she would like to harm the father's new wife. The mother also admitted that she had told the children that if they misbehaved and were disruptive while they were living with the father, the father would send them back to live with her. During the testimony in which the mother admitted that she had encouraged the children to be disruptive at the father's house, the trial court interrupted the hearing to warn the mother that if she continued to make such comments to the children he would order that she be incarcerated for contempt. The trial court also warned the mother that her behavior increased the possibility of the children's getting into trouble and being placed in detention.
On the second day of the hearing, both the daughter and the son were called as witnesses. The daughter testified that, during breaks in the hearing the day before, the mother had spoken to her about the progress of the case. The trial court interrupted the daughter's testimony in the following exchange:
When the parties' son testified, the father's attorney questioned the son about whether, during the previous day's hearing, he had been reading one of the depositions taken in the case. The son...
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