Williams v. Williams

• Decision Date: 11 September 2015
• Docket Number: 2140470.
• Citation: 189 So.3d 98
• Parties: Jennifer WILLIAMS v. Steven Jeffery WILLIAMS. Steven Jeffery Williams v. Jennifer Williams.
• Court: Alabama Court of Civil Appeals

189 So.3d 98

Jennifer WILLIAMS

v.Steven Jeffery WILLIAMS.

Steven Jeffery Williams

v.Jennifer Williams.

2140470.

Court of Civil Appeals of Alabama.

Sept. 11, 2015.

Jay E. Stover of The Stover Law Firm, Fairhope, for appellant/cross-appellee Jennifer Williams.

John D. McCord of McCord & Martin, Gadsden, for appellee/cross-appellant Steven Jeffery Williams.

THOMAS, Judge.

Steven Jeffery Williams ("the father") and Jennifer Williams ("the mother") were divorced by a judgment entered by the Etowah Circuit Court in 2008. There are two children of the marriage. The circuit court awarded the father custody of the children, subject to the mother's award of supervised visitation. In 2009 the circuit court found the father in contempt regarding his lack of compliance with the mother's right to visitation. In 2011 the circuit court ordered the mother to pay $82 per week in child support. In 2012 the circuit court allowed the father to relocate the children to Fairhope, which is approximately 300 miles from where the mother lives in Gadsden. The mother had access to her parents' mobile home in a retirement community in Fairhope after the father relocated the children, but she continued to live in Gadsden.

On May 21, 2013, the mother filed a complaint seeking a modification of custody and a finding of contempt against the father. The father answered and filed a counterclaim seeking a modification of custody and a finding of contempt against the mother. The dispute centered on visitation. The children, who were at that time ages 14 and 10, respectively, were participating in sports and other weekend activities that conflicted with the mother's twice-per-month weekend-visitation schedule. In fact, on June 4, 2013, the father filed a motion seeking an "immediate ruling" allowing the older child to participate in football and other "reasonable extracurricular activities," which the mother opposed and the circuit court denied.

The mother filed an amended complaint seeking a modification of custody and a finding of contempt in which she asserted that the father had attempted to alienate the children from the mother and had continued to interrupt her visitation after she had filed her original modification complaint on May 21, 2013. Upon the mother's request, the circuit court ordered the father to allow the mother to exercise an extended visitation over a holiday weekend. The circuit court appointed a guardian ad litem for the children. The children's guardian ad litem recommended a visitation schedule tailored to avoid weekends when the children had football games.

On September 6, 2013, the circuit court entered an order, which required the mother to exercise visitation with the children in Fairhope during football season. Thereafter the parents continued to file motions that displayed their lack of communication, agreement, and cooperation. On October 9, 2014, the circuit court entered an order apprising the parents that it would not engage in entering "week to week orders" compelling the parties to cooperate with each other. It specifically warned the father that he had placed himself at risk of contempt sanctions.

The children's guardian ad litem filed a second recommendation in which she noted that the parties had contacted her after business hours on "numerous occasions" and that she had attended many meetings and hearings with the parties. According to the children's guardian ad litem, the older child desired to live with the mother.

A trial was held on June 16, 2014, and October 27, 2014. At that time the children were 15 and 11 years old, respectively. The circuit court interviewed the children; however, the unopposed in camera interview was not transcribed. On November 7, 2014, the circuit court entered a judgment, which reads, in pertinent part:

"Due to mutual consent regarding a set off of a property settlement due with child support owed, the Court determines neither party is indebted to the other at this time for either, and all property settlement obligations of Father and child support obligations of the Mother have been satisfied to date.

"As to custody, a review of the previous orders prior to the matter coming before this Judge indicates custody was placed with the Father primarily due to [post-traumatic stress disorder ] sustained by the Mother at the hand of a second husband. The Mother was required to undergo counseling, which she has done, and has shown improvement to the point the counselor opined that the Mother is now capable of handling custodial responsibilities.

"It also appears to the Court that the Father has taken intentional advantage of the Mother's misfortune to either play games with the Mother and/or interpret/apply the visitation schedule hyper technically to the Mother's disadvantage. Further, Father is not keeping Mother fully informed of their children's health status, academic, or extracurricular issues or even when they are in Etowah County for family visits.

"This type of intentionally self-serving conduct by [the] Father cannot be in the best interests of the children, and it causes the Court to question the current custodial arrangement as a whole and whether it is in the children's best interests to maintain the status quo.

"All these factors, combined with some diminishment of the oldest child's academic performance since enrolling in Baldwin County and his earnest desire to return to Etowah County/Glencoe schools, combine to result in the Court determining that while legal custody of the children shall be jointly held, the Mother has met the [standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984),] in regards to the care, custody, and control of [the older child]. Primary physical custody of [the older child] shall now be vested with the Mother.

"While both parents are fit custodians (and primary care, custody, and control of [the younger child] remains with the Father), it appears to the Court that the oldest child materially benefits from staying with his Mother by more likely having better academic performance, better discipline, and a higher degree of satisfaction and happiness. See Garrison v. Garrison, 557 So.2d 1277 (Ala.Civ.App.1990).

"While the child's desires alone are insufficient to constitute a material change of circumstances, they are sufficient when combined with other evidence. See Nauditt v. Haddock, 882 So.2d 364 (Ala.Civ.App.2003).

"The positive good brought about by the modification will more than offset the inherently disruptive effect of moving [the older child] from Baldwin County back to Etowah and also separating him from [the younger child]."

The circuit court's judgment also contained orders regarding the each parent's visitation (one weekend per month) with the child not in his or her custody. The circuit court's judgment reads, in pertinent part:

"The visitation arrangements shall henceforth be as follows:

"a) The first weekend of the month from 7 p.m. Friday until 5:00 p.m. on Sunday, the first weekend being defined by the first Friday of the month. Visitation [is] to occur in Fairhope at [the] Mother's place of residence there. The Mother shall bring [the older child] with her when she travels to Fairhope and [the older child] shall visit with his Father on those weekends for at least one evening each time and the two boys will be together with the Mother at least one evening those weekends, as well."

On November 25, 2014, the father filed a postjudgment motion. On December 5, 2014, the mother filed a response to the father's postjudgment motion. After a hearing, the circuit court entered an amended judgment on February 19, 2015; the amended judgment clarifies certain visitation provisions and reads, in pertinent part:

"4. All visitation periods of either party shall [take] precedence over extracurricular activities. For there to be a working, meaningful visitation schedule in any case, a spirit of cooperation is required of the parties. Lacking that, the Court can only rule as follows:

"If the minors can engage in extracurricular activities that do not interfere with visitation periods, or if the non-custodial parent, by that parent's consent, wishes to waive or reschedule a visitation period for the minors to engage in same (not imposed by the custodial parent), then same will be encouraged. Otherwise, visitation periods will always take precedence over extracurricular activities.

"If a non-custodial parent defers on a visitation period in order to allow the child to participate in an extracurricular activity, said visitation period shall be made up within the next thirty (30) days. The timing of the make-up period will be set with input from both parents."

(Emphasis added.)

The mother filed a notice of appeal on March 12, 2015; the father filed a cross- appeal on March 27, 2015. The parents each seek review of whether the circuit court abused its discretion by separating the children. The mother seeks review of whether the circuit court abused its discretion by ordering her to travel to Fairhope to visit the younger child. The father argues that the circuit court erred by failing to "employ a more specific visitation schedule," and he seeks our review of whether the circuit court erred by declining to find the mother in contempt for her failure to pay child support or by failing to award him a judgment on the mother's child-support arrearage.

The Split–Custody Award

"Before we begin our analysis, we first consider the applicable standards of review. When this Court reviews a trial court's child-custody determination that was based upon evidence presented ore tenus, we presume the trial court's decision is correct: ‘ "A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong...." ’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Ci

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