S.L.L v. L.S

• Decision Date: 02 April 2010
• Docket Number: 2090133.
• Parties: S.L.L. v. L.S.
• Court: Alabama Court of Civil Appeals

47 So.3d 1271

S.L.L.

v.L.S.

2090133.

Court of Civil Appeals of Alabama.

April 2, 2010.

COPYRIGHT MATERIAL OMITTED.

Eric N. Snyder, Anniston, for appellant.

Scott F. Stewart of Stover, Stewart & Phillips, LLC, Gadsden, for appellee.

MOORE, Judge.

S.L.L., the father, appeals from a judgment transferring custody of H.R.S., the child, to L.S., the mother. We reverse.

Background

On September 4, 2009, the mother filed a petition in the Etowah Juvenile Court seeking to modify custody of the child and seeking to hold the father in contempt of court. The father answered the petition, generally denying the allegations asserted therein. The juvenile court conducted a hearing on the mother's petition on September 30, 2009; ore tenus evidence was received at that hearing.

On October 26, 2009, the juvenile court entered its “Custody and Visitation Order.” In that judgment, the juvenile court made specific findings of fact and concluded that the mother had met the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). Thus, the juvenile court ordered a transfer of custody from the father to the mother. The juvenile court found no just reason for delay and, pursuant to Rule 54(b), Ala. R. Civ. P., made the order final. The father timely filed a postjudgment motion, seeking to alter, amend, or vacate the judgment; the juvenile court denied the father's motion.

The father timely appealed to this court. ¹ On appeal, the father asserts that the mother failed to meet the standard set forth in Ex parte McLendon, supra.

Evidentiary Background

The record before us establishes the following. At the time of the custody hearing, the child was five years old. The mother acknowledged that, in September 2006, she had tested positive for cocaine upon the birth of her second child, K.S. ² At that time, the Department of Human Resources became involved with the family, a dependency petition was eventually filed, and the father was awarded custody of the child. ³ Although the record before this court contains none of the pleadings filed or the orders entered in any of the earlier juvenile-court actions involving the parties, it appears from references made by the juvenile court and in the parties' testimony that, on February 26, 2009, the juvenile court awarded the mother and the father joint legal custody of the child with the father remaining the physical custodian of the child.

[1] By September 2009, the mother had filed this petition to modify custody with the juvenile court. ⁴ At the hearing on her petition, the mother complained that the father had not notified her of a certain field trip scheduled for the child's kindergarten class and that the father either did not notify her or was unaware that the child's class was making school pictures on a specified date. The mother testified that she had been forced to communicate with the school to obtain such dates because the father had refused to relay them to her. The mother claimed that she had had similar problems when the child attended pre-kindergarten the preceding year; according to the mother, the father had not notified her of the child's pre-kindergarten graduation ceremony. The father denied the mother's version of events and testified that he had merely forgotten the date of the field trip referred to by the mother and that he did not consider school pictures to be an event requiring notice to the mother. He also pointed out that the child had been attending kindergarten for only approximately six weeks at the time of the September 30, 2009, modification hearing.

The mother also testified that she had had difficulty leaving school with the child one day after a field trip. According to the mother, the child's teacher had indicated to her that the father had instructed the school not to release the child to the mother without the father's written permission and that, on that occasion, the father had not given his written permission. After the teacher contacted the father to verify that the child could be released to the mother, the mother was able to leave with the child. According to the mother, the father's failure to place the mother on the school's “checkout” list was in violation of the juvenile court's previous order.

The mother alleged that the father had notified her of a dental appointment for the child and that she had taken time off from work to attend that appointment. She then learned that the father or the child's paternal grandmother had changed the date of the appointment at the last minute without informing the mother. As a result, the mother was required to take additional time off from work to attend the appointment on the rescheduled day. The father testified that he notified the mother of all scheduled doctor appointments and that he had notified the mother of the correct date for the child's dental appointment. He testified, however, that when the child has been sick all night and needs to go to the doctor, the mother “is the last thing on my mind in the morning, it's to get [the child] to the doctor, get him some antibiotic, and get him better, but any doctor's appointments like for next week or something, [the mother] knows all about it.”

The mother testified that she was unable to reach the child by telephone during the evenings and was forced to continuously telephone the father in an attempt to talk with the child. She testified that she would “call all day long until I can talk to [the child].” The mother testified that she believed that the father and the paternal grandmother were attempting to eliminate the mother from the child's life. The father complained that the mother called his home telephone and his cellular telephone as many as eight times a day, but, he testified, if the child was available, he was allowed to talk with the mother.

The mother also testified that she had offered to buy school clothes for the child but that the paternal grandmother had told the mother they were not needed. She also complained that she had purchased a pair of “light-up” shoes for the child and that the father or the paternal grandmother had allowed the child to wear the shoes into the river and damage them. The father testified that he initially had not accepted the mother's offers of assistance because he had not needed the help. The father testified that he eventually told the mother that, if she wanted to help, she could pay a pre-kindergarten bill that remained outstanding.

The mother testified that the father was not actively involved in caring for the child. She testified that the paternal grandmother, rather than the father, was the child's primary caregiver. The mother explained that the paternal grandmother had recently “blacked out,” causing her to fall and break her ribs; the paternal grandmother was hospitalized as a result of her medical problems. The mother complained that, during the paternal grandmother's nine-day hospitalization, the father had sent the child out of state to stay with a paternal aunt rather than asking the mother to assist in caring for the child. The father admitted that he had not asked the mother to assist him, and he acknowledged that the mother would not be his first choice to help care for the child because, he testified, the mother would then argue in court that the father had been unable to properly care for the child without the mother's help.

The father admitted that the paternal grandmother often dressed the child for school, drove the child to school on certain days, and usually picked the child up from school if the father was working. The father acknowledged that he had not yet attended a kindergarten field trip with the child, but, he testified, he had attended field trips during the child's pre-kindergarten year. The mother also testified that the father did not know the name of the child's current dentist and that the child had significant dental needs. The father could not identify the dentist by name, but he identified the location of the dentist's office. The mother and the father disagreed as to which dentist to use.

The mother also testified that the father was unaware that the child's cough syrup had not been returned with the child on one occasion. The mother testified that she had inadvertently left the cough syrup on her counter and did not discover it there until some time later. ⁵ At some point after she discovered that she had not returned the medication, the mother called to ask the father if the child had taken all of his cough syrup; the father indicated that the child had finished all of it. The father admitted that he had not been truthful with the mother and testified: “I know I lied, because I [knew] she'd bring it up to me in court.” The father, however, testified that, upon learning that he did not have the cough syrup, he had contacted the child's pediatrician who had instructed the father that, if the child needed it, to give the child another of his medications instead of the cough syrup.

The mother also testified that the child had missed a large portion of the first two weeks of kindergarten because he had not had received all of the necessary immunizations. The father testified that the child suffered with asthma and that the child had missed school because he had been sick. The father admitted that he had taken the child to the doctor and that, while there, the child had received four shots; the father, however, denied that the child was behind schedule in receiving those shots. The father also testified that one of those shots was a flu shot.

The mother complained because the father had not attended any of the child's “T-ball” games. According to the mother, she had attended all the child's practices and all the games but one. The father testified that he had to work on Saturdays, the only day the team played, and, thus, could not attend the games but that he had attended some of the child's practices.

The...