T.G.F. v. D.L.F.

• Decision Date: 10 February 2017
• Docket Number: 2150607
• Citation: T.G.F. v. D.L.F., 2150607 (Ala. Civ. App. Feb 10, 2017)
• Parties: T.G.F. v. D.L.F.
• Court: Alabama Court of Civil Appeals

T.G.F. v. D.L.F.

2150607

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2016-2017

February 10, 2017

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Monroe Circuit Court

(DR-10-900007.01)

MOORE, Judge.

T.G.F. ("the mother") appeals from a judgment entered by the Monroe Circuit Court ("the trial court") denying her petition to modify the visitation of D.L.F. ("the father") with S.F. ("the child"), whose date of birth is October 12, 2010; denying her petition to hold the father in contempt for failing to pay for certain private-school and extracurricular expenses of the child; and denying her petition to modify the parties' divorce judgment to require the father to pay a portion of the child's private-school and extracurricular expenses.

Procedural History

In September 2011, the trial court entered a judgment of divorce that incorporated an agreement of the parties, which provided, among other things, that the wife would exercise sole physical custody of the child subject to specified visitation rights of the father and that the father would pay child support and 50% of any of the child's noncovered medical, dental, orthodontic, pharmacy, or surgical expenses. The agreement incorporated into the divorce judgment also provided: "Any major decision ... that would require that the [father] pay additional money above child support ... must be agreed to by both parties in advance."

On November 25, 2014, the mother filed a petition seeking to terminate the father's visitation with the child; she also filed an ex parte motion to terminate the father's visitation based on allegations that the father had sexually abused thechild. That same day, the trial court entered an order suspending the father's visitation pending an investigation by the Monroe County Department of Human Resources ("DHR") and further orders of the trial court. Based on an agreement of the parties, the trial court later lifted that suspension and ordered that the father would have scheduled daytime supervised visitation. On December 8, 2014, the father filed an answer to the petition and a counterclaim seeking to gain sole legal and physical custody of the child, claiming that the mother had made false allegations against him to the detriment of the child. On June 16, 2015, the mother filed an amended petition seeking to hold the father in contempt of court for his failure to pay certain private-school and extracurricular expenses of the child. She also requested that the trial court clarify the divorce judgment incorporating the parties' agreement regarding the father's responsibility to pay amounts over and above his child-support obligation and/or to amend the divorce judgment to require the father to pay a portion of the child's private-school and extracurricular expenses.

After a trial, the trial court entered a judgment on March 24, 2016, denying both parties' petitions to modify and declining to hold the father in contempt for failure to pay private-school and extracurricular expenses because, the trial court concluded, the father had not agreed to pay those expenses. On March 31, 2016, the mother filed a postjudgment motion. On April 26, 2016, the mother filed her notice of appeal. On April 27, 2016, the mother withdrew her postjudgment motion.¹

Facts

I.

The facts relevant to the visitation issue are as follows. The father testified that he and the mother had gotten along well until the child was born, after which, he said, their relationship had quickly deteriorated. The father testified as to a dispute between the parties about feeding the child on the day the child was born. The father moved out of the marital home only three days later, and the mother served him with a divorce complaint not long thereafter.

While the divorce action was pending, the maternal grandmother of the child alleged that she had observed the father sticking his tongue out in the direction of the child's vagina while changing the child's diaper. The father testified that the maternal grandmother had later accused him of performing oral sex on the child. Based on those allegations, the trial court had suspended visitation between the father and the child for three weeks, after which the visitation had been supervised for two or three months. The father testified that the mother had told him during that period that she would not comply with any court order requiring unsupervised visitation between the father and the child. The father further testified that the mother had interfered with his supervised visitation. During the divorce proceedings, the trial court entered an order finding that the mother had violated its pendente lite order concerning supervised visitation. DHR investigated the sexual-abuse allegations and found that child abuse was not indicated. The trial court later reinstated unrestricted visitation.

When the child was six months old, the mother noticed bruising on the child's elbow when the father returned thechild from visitation. The mother took the child to the emergency room, and, during the examination, the doctor found bruising on the child's groin area and reported his findings to DHR. DHR investigated and determined that child abuse was not indicated but that the child had been accidentally injured. The mother testified that the father had had nothing to do with the bruising.

The mother testified that, once the parties agreed to divorce in September 2011, they had resumed friendly relations. The mother testified that she had consulted with a psychologist and had read numerous articles on co-parenting, which had led her to encourage the child to have a good relationship with the father following the divorce. After the child turned two years old, the child began having overnight unsupervised visitation with the father. The mother also invited the father to visit with the child beyond his regularly scheduled visitation times. The mother presented multiple photographs taken in 2014 of happy interactions between the mother, the father, and the child, including photographs taken on vacations and other occasions. The father stipulated that the parties had enjoyed a good co-parenting relationship before the mother filed her modification petition in November 2014. However, the father also testified that the mother had consistently caused problems for his visitation, often threatening to report him to DHR, and that the parties had experienced only brief, intermittent periods of cooperative parenting, when he would acquiesce to the mother's demands.

The mother testified that, in the time leading up to the child's scheduled Thanksgiving visitation with the father in 2014, the child began showing symptoms of distress such as becoming irritable, crying, wetting the bed and her pants, clinging to the mother, not eating, having nightmares, and refusing to sleep alone. On the Sunday before Thanksgiving, the child expressed that she did not want to attend the visitation with the father, which was to commence on Wednesday. The mother questioned the child, who, according to the mother, disclosed information that convinced the mother that the father had sexually abused the child.² The mother testified that she was shocked by the child's statements. The mother testified that, after the child disclosed theinformation to her, the child had prayed, the mother had comforted the child, and she and the child had slept together with their hands clasped all night.

According to the mother, the next day she contacted DHR and also filed the modification petition and the motion to suspend the father's visitation. The mother testified that she had not wanted the allegations of sexual abuse to be true but that she had wanted to have those allegations fully investigated. Jane Agee, a social worker employed by DHR, instructed the mother to take the child for a physical examination and, afterwards, to see Niki Whitaker, the executive director of Baldwin County's Child Advocacy Center. The mother testified that the physician who had performed the physical examination on the child had found no physical evidence of abuse.

On December 2, 2014, Whitaker conducted a forensic interview of the child. The mother testified that she had instructed the child to tell the truth during the forensic interview, which both Agee and Whitaker testified would be a proper instruction. However, Agee also testified that, during the forensic interview, the child had said that the mother hadtold her what to say. Agee testified that she and a law-enforcement officer from Monroe County had observed the interview through a one-way window. Agee testified that the child had been talkative but that the child had not cried, urinated, or otherwise acted in an alarming or unusual manner. Whitaker testified that the child had demonstrated through a baby doll that the father had used his fifth finger to touch the child's vagina. Whitaker testified that she was concerned for the child, who, she said, had expressed a strong desire not to be with the father; however, Whitaker testified that, based solely upon the forensic interview, she "could not rule in or rule out sexual abuse" and that she had informed Agee and the law-enforcement officer that a more extensive six-week forensic interview could be provided by a therapist on staff. Agee testified that, because the trial court had imposed a restriction requiring that any visitation between the child and the father be supervised, she had considered the child to be sufficiently protected and therefore had not recommended further forensic interviews. Whitaker testified that she had also suggested that DHR search through the...