Watkins v. Lee
| Decision Date | 06 January 2017 |
| Docket Number | 2150748. |
| Citation | 227 So.3d 84 |
| Parties | Keevis D. WATKINS v. Brianne Claire LEE |
| Court | Alabama Court of Civil Appeals |
Buddie R. Brown, Jr., Decatur, for appellant.
Julia Smeds Roth of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellee.
Keevis D. Watkins ("the father") appeals a judgment of the Morgan Circuit Court ("the trial court") granting a petition to establish paternity, custody, visitation, and child support that had been filed by Brianne Claire Lee ("the mother") regarding the parties' son and daughter (hereinafter referred to collectively as "the children"), who were born out of wedlock on October 12, 2007, and June 17, 2009, respectively.1 The mother also has an older daughter from a different relationship ("the mother's daughter"). On appeal, the father challenges only one aspect of the trial court's judgment, namely, a provision permitting the mother to refuse the father's visitation if she believes that he is under the influence of drugs or alcohol or that he is placing the children in an unsafe environment or a place of danger ("the refusal provision"). We affirm.
The mother filed her verified petition on May 6, 2014. Acting pro se, the father answered the mother's petition, and, after the trial court had ordered him to submit to genetic testing to establish his paternity of the children, the father later waived his right to undergo that testing and admitted his paternity; the trial court thereafter entered an order establishing the father's paternity. After obtaining representation, the father filed an amended and verified answer and participated in discovery; however, the trial court later granted the father's attorney's motion to withdraw, and the father thereafter continued to defend against the mother's petition pro se.
The trial court conducted a trial on April 5, 2016, at which the mother, the father, and a private investigator who had been hired by the mother's attorney ("the private investigator") testified. On May 4, 2016, the trial court entered a judgment awarding the mother sole physical and legal custody of the children and including, among other things, the refusal provision. Regarding the father's visitation generally, the trial court stated: "The parties can mutually agree upon the visitation with the father, but if they cannot, the Morgan County visitation schedule ... shall govern." With the assistance of a new attorney, the father then filed a "motion for a new trial" on May 25, 2016, in which he argued that the refusal provision could impermissibly allow the mother to withhold visitation from the father based on her subjective beliefs that might not be supported by "any real proof." The trial court denied the father's postjudgment motion on June 10, 2016, and the father filed a notice of appeal that same day.
B.F.G. v. C.N.L., 204 So. 3d 399, 404–05 (Ala. Civ. App. 2016).
As mentioned above, the father argues only that the trial court abused its discretion by including the refusal provision in its judgment without specifically defining the circumstances under which the mother can withhold visitation from the father. The only case the father has cited in the argument section of his appellate brief is H.H.J. v. K.T.J., 114 So.3d 36 (Ala. Civ. App. 2012), in which this court reversed a particular portion of a trial court's judgment that had effectively permitted a child to decide whether his father could exercise visitation. Noting that "the father ha[d] made some efforts to repair his relationship with the child, that the child was responding, and that the child was willing to try to have a relationship with the father," we concluded that "[a]llowing the child to determine the timing of visitation with the father would not, given the facts, be in the child's best interests." Id. at 44.
In response, the mother asserts the following in her appellate brief:
In its judgment, the trial court set out specific findings "as to why joint custody should not be granted," several of which could also have been relevant to its inclusion of the refusal provision:
The refusal provision specifically provides:
"The mother has the right to refuse visitation of the father if, in her judgment, (1) the father appears to be under the influence of drugs or alcohol, or (2) the father appears to be placing the children in an unsafe environment or to be placing them in a place of danger."
As previously stated, the father appeared pro se at the trial. After the mother had presented her case-in-chief, the trial court allowed the father to testify regarding any matter that he wished to address; much of the mother's testimony was generally disputed by him. The mother testified that she and the father had lived together from 2007 until 2013. Before they had begun living together, the father had been convicted of selling cocaine and had been incarcerated for two years. Regarding the children's health and safety while in the father's care, the mother specifically testified regarding a burn that the son had suffered on his arm and provided photographic evidence of the injury. She also noted that she had requested and obtained a pendente lite order from the trial court preventing the father from taking the children from Alabama. She offered the following explanation for that request:
The mother further testified that, while the parties were living together, there had been several incidents of domestic violence between her and the father and that the police had been involved "several times." During the father's cross-examination of the mother, the following exchange took place between the mother and the trial court:
The father also offered the following relevant testimony upon direct examination by the mother's attorney:
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...or drugs, which would be judicious bases for the custodian's right to veto a particular visitation. See, e.g., Watkins v. Lee, 227 So. 3d 84, 89 (Ala. Civ. App. 2017) (affirming a judgment containing a visitation provision that permitted the custodial parent to decline to allow the noncusto......