Smith v. Smith

• Decision Date: 03 April 2015
• Docket Number: 2140028.
• Citation: 196 So.3d 1191
• Parties: Shannon Wilkinson SMITH v. Justin Randall SMITH.
• Court: Alabama Court of Civil Appeals

196 So.3d 1191

Shannon Wilkinson SMITH

v.Justin Randall SMITH.

2140028.

Court of Civil Appeals of Alabama.

April 3, 2015.

Richard E. Corrigan of The Corrigan Law Firm PC, Mobile, for appellant.

Grady R. Edmondson, Mobile, for appellee.

THOMPSON

, Presiding Judge.

Shannon Wilkinson Smith (“the mother”) appeals from a June 30, 2014, judgment of the Mobile Circuit Court (“the trial court”) modifying the custody arrangement established in a previous judgment divorcing Justin Randall Smith (“the father”) and her. In the modification judgment, the trial court changed primary physical custody of the parties' two children (“the children”) from the mother to the father.

The record indicates the following. The parties were divorced in February 2007. Pursuant to the divorce judgment, the mother and the father were awarded joint legal custody, and the mother was awarded primary physical custody, of the parties' two children. In July 2012, the father filed petitions seeking both temporary custody of the children and a custody modification. The mother filed a cross-petition for contempt, asserting that the father was in arrears on his child-support obligation and a petition to modify child support. The mother also filed a motion seeking the return of the children to her custody. In that motion, the mother alleged that the father had the children for his summer- visitation period and that he intended to keep the children in his custody until the hearing on his motion for custody, which had been scheduled for August 9, 2012. (The hearing was continued to August 16, 2012.)

On September 12, 2012, the trial court entered an order incorporating an agreement the parties had reached regarding what they appear to have considered pendente lite custody and visitation. Pursuant to the September 12, 2012, order, the parties were to “exercise alternate week visitation.” The mother's time with the children was to be supervised. The father's child-support obligation was suspended pending further order of the court.

On December 21, 2012, the father filed a motion for immediate custody of the children. In support of that motion, the father alleged that the mother's visitation periods were no longer being supervised and noted that the mother's attorney had withdrawn from the case. The father asserted that the mother had a history of drug abuse, which was the reason for the supervised visitation. In response, the mother filed a motion to dismiss. A hearing was held on the motions on March 14, 2013, after which the trial court reaffirmed the terms of the September 12, 2012, order. In a second order, the trial court directed the parties to, among other things, administer the children's medications in accordance with doctors' orders.

On May 1, 2013, the mother made a written request for an “office conference” with the trial court. In making the request, the mother stated that, since the entry of the September 12, 2012, order, she had “been unable to exercise her regular role as primary custodial parent,” she had received no child support, and she had “been under restrictions in her possession of her children.” The trial court granted the mother's request. On May 16, 2013, the trial court entered an order again leaving visitation unchanged and setting the case for a hearing.

Before the scheduled hearing could be held, however, the trial court ordered the mother to submit to a drug test. The father also filed a contempt motion against the mother in which he again alleged that her visitation periods were not being supervised. The mother filed several motions seeking the return of the children, none of which were granted. The mother never filed a petition for a writ of mandamus with this court regarding her interim requests for custody of the children.

The evidentiary hearing in this matter was held in June 2014. The evidence adduced at that hearing indicated the following. The children were 12 and 9 years old at the time of the hearing. When the events leading to the father's request for a change of custody occurred, the children were students at a Mobile elementary school. School records contained in the record on appeal indicate that the older child had a number of disciplinary problems, including being disruptive in class and fighting with other children and teachers. The older child had been prescribed Adderall, which is used to treat attention deficit/hyperactivity disorder (“ADHD”). The father testified that the older child had ADHD. The school nurse gave the older child his medication at school.

In 2012, the father said, the school nurse contacted him to advise him that, for the previous six weeks, the older child had not received his prescribed medication at school and that the mother was not returning the school's telephone calls. The father testified that he then spoke to the mother, who told him “she was no longer administering medicine through the school.” The father said that the mother told him she was not giving the child his medications at all because, she said, the medicine made him “fidget [ ] with his hands and mouth.” The father, whose insurance paid for the child's medication, said that he reviewed his insurance records and found that the child's prescriptions were still being filled. The mother then told him that she was crushing the medication and putting it in the older child's breakfast. However, the father said, the mother then conceded that she was no longer giving the older child the medicine and that she had flushed the remainder of the medicine down the toilet. The father contacted his insurance company again and was told that the child's prescriptions were still being filled.

In March 2012, the father said, he received another call from the school. Shirley Reed, the head of the school's cafeteria, contacted the father to tell him the children often did not have money for lunch. Reed said that she would call the mother, who sometimes would bring lunch money and sometimes “didn't show up.” Reed said that “probably every lady on my staff” and she had lent the children lunch money. Eventually, Reed said, she contacted the father about the problem. He was “very upset,” she said, and came to the school to put money in the children's account and to assure her the children would not be without lunch money again. Reed said that she had checked her records and that the children have not been without lunch money since she spoke with the father.

The father said that when he asked the mother about her failure to provide lunch for the children, she told him that was not true and that she sent the children with money or a packed lunch every day. The father said that, as a result of his conversation with Reed, he set up an account with the school so that the cost of the children's lunches were debited from his bank account. Unless the mother sent the children to school with a packed lunch during the weeks she had visitation, the father said, he has paid for their lunches daily since April 1, 2012.

In his dealings with the school, the father discovered that the mother had not listed him as the children's parent, and, therefore, he was unable to obtain the children's records. The mother assured the father she would “take care of it,” the father said. The father was then “added as a friend.” After the father took the parties' divorce judgment to the elementary school to prove that he had joint legal custody, he said, the school added him as a parent.

The father met with the older child's teacher and the school principal. After that meeting, the father said, he spoke to the mother and told her that the children were going to school unprepared, that they were not studying for tests, and that they were not completing their homework assignments. The father testified that the mother claimed that “was an outright lie.” The father said that, thereafter, he tried to stay in contact with the school about the children.

Erica Dunn, the younger child's teacher, corroborated the father's testimony. She said that she received e-mail from him on a regular basis but that she did not receive any e-mail, notes, or questions from the mother. Dunn said that the father had attended both parent/teacher conferences she had scheduled during the school year. Dunn said that the father appeared to be “very involved” with the younger child and asked questions about ways he could help that child with school. Dunn stressed the importance of reading with the child. The father testified that he read with both children regularly, which, he said, the mother did not do. Dunn said that the father also served as a chaperone on the younger child's field trip.

On the other hand, Dunn said, the mother had not attended either of the conferences, although she did attend a class party. Dunn said that she sent weekly e-mails and weekly bulletins, but, she said, the e-mail address that the mother had provided to her would not “process” the messages that Dunn had attempted to send. Dunn obtained a corrected address for the mother, but that address did not work either, Dunn said.

In April 2012, the father received a telephone call from Elizabeth Rettig, a longtime friend of the mother's. Rettig testified at the hearing that she had become concerned that the mother was abusing prescription drugs and was failing to properly care for the children. Rettig testified that the mother would no longer clean her house and would stay in her pajamas all day. According to Rettig, the mother and she had e-mail conversations in which the mother indicated that she was attempting to buy pain medication and ADHD medication. Rettig also testified that she once saw the mother buy pain pills from a stranger.

The mother testified that she and Rettig were no longer friends because, the mother said, she had failed to wish Rettig a happy birthday in March 2012. She denied Rettig's accusations that she had purchased drugs from a stranger and that she was illegally using prescription drugs. She also denied that she was...