Patrick v. Williams

• Decision Date: 26 May 2006
• Docket Number: No. 2050203.,2050203.
• Parties: Wendy Downing PATRICK v. Mary Anne WILLIAMS.
• Court: Alabama Court of Civil Appeals

952 So.2d 1131

Wendy Downing PATRICK v. Mary Anne WILLIAMS.

No. 2050203.

Court of Civil Appeals of Alabama.

May 26, 2006.

Order Overruling Rehearing August 4, 2006.

Certiorari Denied September 19, 2006 Alabama Supreme Court 1051663.

Garve Ivey, Jr., and Gordon A. Mayfield of Ivey & Ragsdale, Jasper, for appellant.

Submitted on appellant's brief only.

THOMPSON, Judge.

Wendy Downing Patrick ("the mother") appeals the trial court's judgment awarding Mary Anne Williams ("the maternal grandmother") custody of the two minor daughters ("the children") born of the marriage between the mother and Jeffery Arnold Downing ("the father"). We affirm in part, reverse in part, and remand with instructions.

The trial court divorced the mother and father in 2000. The judgment of divorce, which incorporated an agreement between the mother and father, awarded the mother primary physical custody of the children and awarded the father standard visitation. The divorce judgment also ordered the father to pay child support in the amount of $733 per month. Both the mother and the father have remarried since their divorce.

On October 3, 2004, the mother voluntarily placed the children with the maternal grandmother. The mother and her new husband also voluntarily placed the son born of the marriage between the mother and her new husband with the new husband's mother.¹

On October 20, 2004, the maternal grandmother filed in the trial court an emergency petition for custody of the children; the trial court granted that petition that same day. On October 25, 2004, the father filed a response to the maternal grandmother's emergency petition for custody. The father's response asserted that the mother was addicted to methamphetamine and that he, rather than the maternal grandmother, should be awarded custody of the children.

On November 10, 2005, the father, alleging that there had been a material change in circumstances, requested that the trial court modify the judgment of divorce and award him custody of the children.² That same day, the father filed a petition for a rule nisi in which he alleged that the mother had prevented him from visiting with the children and, therefore, that she should be held in contempt.

The maternal grandmother and the father entered into a pendente lite agreement. On November 23, 2004, the trial court entered a pendente lite order that was based on the agreement between the maternal grandmother and the father. That order awarded the maternal grandmother pendente lite custody of the children, outlined a visitation schedule for the father, and directed that the mother could have supervised visitation with the children. On December 6, 2004, the mother filed a response to the father's petition to modify custody and his petition for a rule nisi. That same day, the mother also filed a counterpetition for a rule nisi in which she alleged that the father was $29,302.69 in arrears on his child-support obligation. The mother also filed a petition to modify the judgment of divorce to increase the father's child-support obligation based on her allegation that the father had realized an increased income since the divorce.

On February 1, 2005, the maternal grandmother amended her petition for custody. Among other things, the amended petition added a dependency claim as to both of the children.³ On February 10, 2005, the trial court entered an order setting the matter for a final hearing, leaving the November 23, 2004, pendente lite order in full effect until the final hearing, and ordering the mother to pay $200 per month and the father to pay $300 per month to the maternal grandmother in child support.

On June 1, 2005, the trial court conducted an ore tenus hearing, at which all of the parties and several members of the children's extended family were present. After the hearing, the trial court found the father to be in contempt of court and ordered him jailed as a result of his being more than $30,000 in arrears on his child-support payments.

On September 8, 2005, the trial court entered a judgment awarding the maternal grandmother custody of the children. In its judgment, the trial court found that the father had had no contact with the children for three years, that the father was in contempt due to his substantial child-support arrearage, and that the father had abandoned the children. The judgment also found that the mother's addiction to methamphetamine had exposed the oldest child to a potentially fatal ingestion of the drug and that the mother could offer no credible story to explain the ingestion. The trial court found both the mother and the father "unfit to fulfill the duties and responsibilities of a natural parent at this time," and it therefore awarded custody of the children to the maternal grandmother. The trial court also gave the parties leave to file "properly documented proposals for child support according to the child-support guidelines, and provisions for visitation for the natural parents."

On October 4, 2005, the mother filed a "postjudgment motion," which the trial court denied on October 12, 2005. On October 24, 2005, the trial court entered an order that directed the father to pay $571 per month in child support and directed the mother to pay $190 per month in child support. The mother timely appealed; the father has not appealed.

The testimony at the hearing revealed the following pertinent facts. Soon after her divorce in 2000, the mother remarried and moved with her new husband and the children to La Grange, Georgia. The mother, her new husband, and the children moved to Texas in 2002. Since moving to Texas, the mother has been a stay-at-home parent, and the new husband has worked with computers in the automotive industry.

Since the divorce, the father has lived in Montgomery, Dothan, and Panama City, Florida; he has worked continuously as a service technician for a cable-television provider. At all times relevant to this appeal, the maternal grandmother, a retired nurse, has lived in Tallapoosa County.

The mother testified that the father exercised visitation with the children soon after the divorce but that his visits became increasingly less frequent and he eventually stopped visiting the children all together. The father claimed that the mother had prevented him from exercising visitation with the children, but the mother disputed that claim. There was no dispute, however, that the father went approximately two years without visiting the children and did not attempt to have the trial court order the mother to allow him to see the children during that time. The evidence indicated that the mother had encouraged the children to visit with members of the father's family; the father's parents and his sister had traveled to Texas to see the children, and the mother regularly brought the children to Alabama to see those family members.

The mother claimed that the father had not paid his child-support obligation for approximately two and one-half years. According to the mother, the father was $28,937.69⁴ in arrears on his child-support obligation, he owed $7,800 in statutory interest on that arrearage, and he owed $3,281.79 for the children's medical expenses. The father did not dispute the amounts offered by the mother. He testified that, despite his having been continuously employed, he began missing child-support payments in October 2002 because he was "holding a grudge" and "being pig-headed." The father stated that he was upset with the mother for preventing him from seeing the children and, therefore, he stopped making his child-support payments.

The mother asserted that, during their marriage, the father had been physically abusive to her. She also described the father as belonging to a white-supremacist group. The father denied belonging to such a group, but he admitted to being interested in white-supremacist activity while he was in high school.

The father's new wife testified that the father loved the children and that he had moved from Florida to Montgomery in late 2004 in order to be closer to the children. The maternal grandmother testified that the father had been exercising regular visitation since the children had returned to Alabama. The maternal grandmother also stated that the father was current on his $300 per month pendente lite child-support obligation to her. The mother, however, had missed several of her pendente lite child-support payments to the maternal grandmother.

By all accounts, the mother had been a loving parent until she became addicted to methamphetamine. The mother testified that she and her new husband tried the drug for the first time while on vacation in Hawaii in 2002. She described her use of the drug as sporadic at first, but that it became more and more regular as the months passed. The mother testified that, by late summer of 2004, she and her new husband were smoking "an eight-ball per week"; her new husband described their using one gram of methamphetamine per day. Her new husband stated that one gram of methamphetamine cost approximately $40.

The mother and her new husband testified that, when using methamphetamine, they would typically leave the children with a babysitter after the children had gone to bed, go to a dance club to purchase the drugs, and then go to a motel to smoke the drugs. They would then stay at the motel until they were sober enough to drive, usually returning home between 4 a.m. and 6 a.m. the next morning. According to the mother's new husband, the couple had also experimented with the drug "ecstasy." The mother and her new husband testified that they hid their drugs in their garage and that they had, on a handful of occasions, smoked methamphetamine at their home while the children were asleep. The mother and her new husband testified that the children were making good grades while they lived in Texas and that, for the most part, the mother and her new husband's drug use did not adversely affect the...