RH v. DWM

• Decision Date: 14 December 2001
• Citation: 822 So.2d 444
• Parties: R.H. v. D.W.M.
• Court: Alabama Court of Civil Appeals

822 So.2d 444

R.H. v. D.W.M.

2991323.

Court of Civil Appeals of Alabama.

December 14, 2001.

Stephen P. Bussman, Fort Payne, for appellant.

James D. Walker, Albertville, for appellee.

CRAWLEY, Judge.¹

This is the third time this matter has been before this court. See S.W.M. v. D.W.M., 723 So.2d 1271 (Ala.Civ.App.1998) ("D.W.M. I"); R.H. v. D.W.M., 772 So.2d 1183 (Ala.Civ.App.2000) ("D.W.M. II"). For a better understanding of the factual and procedural background of this case, we quote from the opinion in D.W.M. II, 772 So.2d at 1184-86:

"In July 1996, the trial court divorced S.W.M. (`the mother') and D.W.M. (`the former husband'). The judgment incorporated a settlement agreement, which provided, in pertinent part, that `J.M. and D.M. were children "born of the marriage."` [D.W.M. I, 723 So.2d] at 1271. Primary custody of J.M. was awarded to the former husband; primary custody of D.M. was awarded to the mother. In 1997, the former husband moved the court to find the mother in contempt for denying him visitation with D.M. The mother counterclaimed, asking that she be awarded custody of both children, because, she said, the former husband was not the biological father of D.M. The trial court held an ore tenus proceeding in which evidence was introduced indicating that R.H.* was D.M.'s biological father; however, the court ruled that the mother could not reopen the issue of paternity, because the divorce judgment had been entered. This court upheld the trial court's ruling, stating that pursuant to § 26-17A-1, Ala.Code 1975, only `a "defendant" who "has been declared the legal father" of a child' could reopen a paternity case. Id. at 1273. We also noted that the mother had not joined R.H. as an indispensable party and that the court had not ruled upon R.H.'s motion to intervene. Id. at 1272.

"In August 1998, the former husband sought emergency relief to obtain custody of both minor children, alleging that R.H. had committed violent acts in the presence of the children; the court entered a temporary order preventing R.H. from being in the presence of the children. In October 1998, the mother filed a `Motion for Relief from Order,' stating that she and R.H. had married and that the restriction was placing an undue hardship on them. In November 1998, the mother moved to join R.H. as an indispensable party, based on his status as D.M.'s alleged biological father. In May 1999, the mother and R.H. sought custody of D.M. and moved for the appointment of a guardian ad litem.

"Following an ore tenus proceeding, the court, on June 2, 1999, entered a detailed order, stating, in pertinent part:

"`First: The intervenor [R.H.] is the biological father of the child, [D.M.], as between him and the defendant [the former husband] in this case. [R.H.] and the [mother] carried on a surreptitious and illicit relationship while the [mother] continued to live with the [former husband] as his wife from July or August of 1994 until the birth of the child on May 2, 1995. During this period of time the [mother] continued to live with the [former husband] as his wife and concealed her illicit affair from the [former husband]. She (and [R.H.]) had good cause to know that the child she was carrying was not or at least might not be the child of the [former husband]. Instead of investigating the possibility that [R.H.] might be the child's father, the [mother] listed the child as the [former husband's] and entered into an agreement whereby she was not compelled to pay the [former husband] child support for the elder child of the parties, in [the former husband's] custody, because she was supporting [D.M.], the other child of the marriage who was in her custody....

"`. . . .

"`[In the second and third paragraphs of the judgment, the trial court stated factual findings related to R.H.'s mistreatment of the child D.M., as well as R.H.'s acts of violence to the mother, the mother's father, and the former husband, D.W.M.]

"`Fourth: The [former husband], while he may not be ... the biological father of the child, deeply loves the child ..., considers him to be his son and in every way has been a good and loving parent to [D.M.]....

"`Fifth: The court finds that here is clear and convincing evidence that a termination of [R.H.'s] parental rights would be in the best interest of the child [D.M.]. [R.H.] has amply demonstrated that he is unable or unwilling to discharge his responsibility to and for the child. His conduct in substantially abandoning the child following its birth and continuing into the child's second year of life after his lover was divorced, indicates a substantial lack of concern for the child. His failure to exercise parental rights and duties enforce this conclusion. His disregard for the child's welfare when he visited violence upon the [mother], when he assaulted the [former husband] and when he attacked the grandfather all in the child's presence are additional factors. The court finds that such conduct is unlikely to change in the foreseeable future. This court hereby ORDERS and DECLARES that any parental rights of [R.H.] in and to the child known as [D.M.] are hereby terminated and ended.

"`Sixth: As between the [mother] and [former husband], the [former husband] is the father of both children. The court finds that for the reasons stated above it is clear and manifest that the best interest of both children will be served by placing their custody with the father that loves and cares for them, [the former husband].... The [home of the mother and R.H.] is such a poor choice for the children that the [maternal grandfather] has chosen to support [the former husband], his former son-in-law, in his quest for custody.... The best interest of the children, including [D.M.] who was previously in the [mother's] custody, will be so clearly served and improved that

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