C.C.N. v. R.E.S.

239 So.3d 1164

C.C.N.

v.R.E.S.

2150588

Court of Civil Appeals of Alabama.

April 07, 2017

Certiorari Denied June 9, 2017

Alabama Supreme Court 1160633

Scott W. Hunter, Daphne; and Ginger Poynter, Mobile, for appellant.

Robert E. Lusk, Jr., of Lusk Law Firm, LLC, Fairhope, for appellee.

On Application for Rehearing

DONALDSON, Judge.

This court's no-opinion order of affirmance issued on February 10, 2017, is withdrawn, and the following is substituted therefor.

C.C.N. ("the father") appeals from the judgment of the Mobile Juvenile Court ("the juvenile court") denying his petition to modify a custody order pertaining to A.B.S. ("the child"). We affirm the judgment.

Facts and Procedural History

The father and R.E.S. ("the mother") were in a dating relationship for approximately six months. After they ended the relationship, the mother discovered that she was pregnant. The father was initially permitted to attend prenatal appointments with the mother, but, because the parties consistently argued, the mother refused to allow the father to continue to attend. The child was born on April 24, 2009. Shortly after the child's birth, the father initiated an action in the juvenile court seeking a judgment declaring his paternity of the child and an award of custody of the child, which action was docketed as case number CS–09–5695 ("the CS case"). In February 2012, in addition to establishing the father's paternity of the child, the juvenile court awarded the parents joint legal custody and the mother sole physical custody, with the father having visitation. It is not entirely clear from the record, but it appears that the order containing that custody award was appealed to the Mobile Circuit Court ("the trial court") for a de novo review because the record was not certified as adequate, pursuant to Rule 28(B), Ala. R. Juv. P. The appeal was assigned case number DR–12–58 ("the DR case"). In March 2013, the parties entered into an agreement in the DR case pursuant to which they would have joint legal custody, the mother would have sole physical custody, and the father would have "standard visitation." The agreement was adopted as an order of the trial court in the DR case.

On December 10, 2013, the father filed in the trial court a pleading that he described as an "Instanter Motion for Modification of Custody." The trial-court clerk docketed the pleading as case number DR–12–58.01 ("the DR .01 case"). On February 7, 2014, the mother filed a motion in the DR .01 case to suspend visitation, in which she asserted that the child had disclosed that the father had sexually abused the child. The parties filed numerous additional pleadings, including motions for immediate change of custody, motions to suspend visitation, and motions for contempt. Each party made various allegations of parental alienation against the other. The mother made numerous allegations that the father had sexually abused the child and attempted to terminate the father's parental rights on three different occasions.

On June 6, 2014, after a hearing, the trial court entered an order in the DR .01 case granting pendente lite sole physical custody to the father and granting visitation to the mother. At a hearing in the DR .01 case on September 19, 2014, the assigned trial-court judge, Judge Edmond G. Naman, disclosed that he had been contacted ex parte on behalf of the mother, that he had received what he considered to be political threats related to the case, and that he believed that he needed to recuse himself.

On September 23, 2014, Judge Naman entered the following order in the DR .01 case:

"The Court having reviewed the above numbered petition, it has been ascertained that said petition should have been filed under Case Number CS 2009 5695 as the next point designator (the court notes that the above numbered case was a De Novo Appeal from the said CS 2009 5695 case when an adequate record could not be produced. The order from said case should have been entered into the Juvenile court file as the final order therein, thereby terminating the Circuit Court jurisdiction over these parties and the child who is the subject matter of the case.)

"It is therefore ORDERED, that the above numbered petition is hereby transferred to the Juvenile Court and the Clerk shall cause the same to be properly docketed. It is further ORDERED that the undersigned recuses himself in said case and the case shall be assigned to the Honorable George Brown, District Judge."

The case was then docketed in the juvenile court as case number CS–09–5695.02. It is unclear from the record whether there was a case number CS–09–5695.01. On January 15, 2015, after a hearing, the juvenile court entered an order prohibiting contact between the child and the child's maternal grandmother. The juvenile court also adopted and confirmed the previous pendente lite custody order entered by the trial court in the DR .01 case. The juvenile court opined that the December 2013 petition filed by the father had been improperly filed in the trial court and should have been filed in the juvenile court.

On September 23, 2015, the juvenile court entered another pendente lite order that, among other things, dissolved the previous order of temporary custody to the father and granted the parties joint legal and physical custody pending the final hearing. The juvenile court also ordered that the child could have no contact with certain family members of the parents.

On March 22, 2016, after multiple days of testimony, the juvenile court entered an order denying the father's petition to modify custody and finding, in part, as follows:

"The Court took extensive testimony over multiple days, and at the conclusion thereof, the Court did fail to find evidence presented sufficient to overcome the [Ex parte] McLendon [, 455 So.2d 863 (Ala. 1984),] standard and thereby warrant a modification of custody.

"Specifically, the Court finds that both the Mother/Defendant and the Father/Plaintiff have been involved in litigation concerning the child's custody almost since the time the child was born. Said litigation has taken the form of a petition for custody shortly after the child was born which was litigated extensively, and a trial de novo appeal of same which was extensively litigated, before Circuit Judge Edmond Naman, both trials resulting in a finding that the best interests of the child would be served by an award of custody to the mother with standard visitation to the father.

"Subsequent thereto, the father filed his current petition, and numerous motion hearings were conducted, counselors were assigned by Judge Naman prior to the case being reassigned to the undersigned, and temporary orders were put into place concerning the child's custody. The most recent temporary order which was put into place by the undersigned, mandated that the parents equally share the custody of the child on a week to week basis with weekly exchanges, and, that no collateral relative be allowed to have contact with the child. This order was put in place as a temporary order in [September] 2015, pending the final hearing in the matter on February 18 and February 25, 2016. The Court further ordered that the child could not be taken to a counselor without permission of the Court and the Guardian ad Litem. The Court finds that subsequent to said order no one presented any evidence that the child suffered any harm by not seeing collateral relatives, nor that the child suffered any harm by not being taken to a counselor.

"The Court finds that the extreme antagonistic behaviors presented by each parent toward the other, and as exacerbated by collateral relatives, namely grandparents, most importantly, has led to a constant instability in the child's life and a constant situation of discord. The Court finds that this condition in the child's life has existed since the time she was born, and continues to exist and therefore there is no change of circumstances in the child's life.

"The Court further finds that while it could certainly be interpreted that the mother's claims of sexual abuse at the hands of the father could amount to an attempt at alienation of the child from the father, the Court finds from the testimony of Dorothy Ward that the mother has made a real and genuine effort to accept that there was no abuse at the hands of the father and to attempt to be cooperative and to ‘co-parent’ the child with the ... Father. The Court further finds from Ms. Ward's testimony that the father attended 3 meetings and informed her in writing that ‘he did not find it to be in his best interest’ that he continue with the co-parenting counseling. The Court finds that the father has not placed the needs and interests of the child ahead of his own and that behavior has been consistent throughout the history of this case.

"The Court finds that during the course of his own testimony the father stated that he believed the mother believed he committed the acts of abuse. If the Court were to accept this then all of the acts of the mother in attempting to prevent the child from having contact with the father and in complaining to the authorities about the sexual abuse would be completely justified even if in fact the abuse didn't occur, because her belief would mandate that she attempt to protect her child in this manner.

"The Court further finds that there has been no significant evidence presented that a change of custody would benefit the child in any way whatsoever, even if a change in circumstances could be established. To the contrary, the Court finds that it is likely the parents will never cooperate with one another to co-parent the child nor will they act consistently in the best interests of the child but rather in their own perceived best interests.

"From the foregoing the Court finds that insufficient evidence has been presented which would warrant a change in custody...."

The juvenile court also reinstated the father's previous child-support obligation of $265 per month.

On ...