Chance v. Jenkins

348 So.3d 414

Jessica Dyan CHANCE

v.Christopher Dominic JENKINS

2200211

Court of Civil Appeals of Alabama.

August 27, 2021

Kris R. Patton of Akridge & Balch, P.C., Auburn, for appellant.

Submitted on appellant's brief only.

HANSON, Judge.

This appeal arises from a civil action brought in May 2020 against Jessica Dyan Chance ("the mother") in the Family Court Division of the Montgomery Circuit Court ("the trial court") by Christopher Dominic Jenkins ("the father"). In his initial complaint, the father sought modification of the custody and child-support provisions of a divorce judgment that had originally been entered by the trial court in February 2013 but had also been the subject of several previous modification and enforcement actions. The father averred that the parties’ three children had been placed in the physical custody of the mother; the oldest child, K.A.J., had reached the age of majority before the commencement of the father's modification action, while the middle child, S.J.J., was born in mid-July 2002 and the youngest child, C.J.J., was born in December 2005. The father further alleged that the mother had abused alcohol; had regularly left her residence at night and had failed to return until the next morning; and had, during the father's visitation with C.J.J., filed a false report with law-enforcement officers indicating that the father had kidnapped C.J.J. The father expressly sought both a pendente lite and a permanent custody change as to C.J.J., claiming that a material change in circumstances had occurred with respect to C.J.J. and that the benefit of awarding the father custody of C.J.J. would outweigh any disruptive effects therefrom. The father also filed a motion seeking the immediate transfer of custody of C.J.J. and an order restraining the mother from removing C.J.J. from the father's care; that motion was supported by affidavits of the father and his counsel.

The trial court entered an order granting the father's motion for an immediate transfer of custody of C.J.J. and restraining the mother from removing C.J.J. from the father's home in Maryland on June 5, 2020, pending further orders of the trial court; the trial court confirmed those rulings in orders entered on June 8 and July 2, 2020. After the mother had retained counsel, who then filed an answer on behalf of the mother to the father's complaint, the trial court set the case for a September 24, 2020, trial. The mother filed a motion requesting that the interlocutory orders previously entered in the action be set aside and a separate motion seeking the imposition of sanctions against the father, to which motion the father responded and sought a finding of contempt against the mother for allegedly having failed to pay attorney's fees awarded to the father in January 2018 in a previous modification action (case no. DR-12-900661.03). After the father had moved for the consolidation of a protection-from-abuse ("PFA") action commenced in June 2020 by the mother in Macon County with the modification action, and the trial court had acted on that motion,¹ the mother's counsel was permitted to withdraw from representing her.

The father, after having obtained leave of court, amended his complaint to seek findings of contempt against the mother based upon her having purportedly failed to pay moneys due under previous judgments of the trial court and to request both recoupment of child support paid with respect to K.A.J. during her minority and reimbursement of child support paid to the mother during the pendency of the modification action. The mother, through a second attorney, filed an answer denying the father's claims. The father also filed a motion seeking the imposition of sanctions against the mother, asserting that she had appeared remotely for her deposition, which was conducted using videoconferencing technology, in the presence of other laypersons and in an apparently intoxicated state and that she had failed to produce requested documents or to give testimony in response to questioning by the father's counsel.

The trial court held an ore tenus proceeding over two days in September and October 2020, during which testimony was given by the mother, the father, K.A.J., C.J.J. (in camera), three Tuskegee municipal police officers, and two public-school employees from Macon County (where C.J.J. had previously attended school). The trial court rendered and entered a judgment in November 2020 that, in pertinent part, awarded the father physical custody of C.J.J. and S.J.J., subject to the mother's visitation; concluded that, because no minor children had actually been living with the mother during the pendency of the action,² she was to repay the father the $2,460 in child support that she had received from him after he had filed his complaint in May 2020; directed that the mother pay the father child support of $449 per month on a prospective basis starting in December 2020; awarded the father $1,976.86 as fees and costs based upon the mother's failures to allow discovery; determined that the mother had failed to present evidence to support her PFA claim that she had initially brought in Macon County; and ruled that the mother's commencement of that action and her contempt of court warranted an attorney-fee award to the father of $8,500. The trial court's judgment expressly or implicitly denied all other relief, including the father's reimbursement claim as to child support paid with respect to K.A.J. and his contempt claim directed to the mother's purported violations of provisions of previous judgments. The mother, acting pro se, appealed from the judgment; however, after her appeal had been dismissed by this court for failure to comply with orders of this court, the mother retained a third attorney, who successfully moved for reinstatement of the appeal, and the appeal has been submitted for decision on only the brief submitted by the mother's new counsel.

Among other things, the mother asserts on appeal that the trial court erred in awarding physical custody of C.J.J. to the father. She focuses her argument upon the alleged existence of justifications for her behavior on May 21, 2020, which was the date of S.J.J.'s high-school graduation, asserting that the father's custody claim was "based largely on [that] incident of inappropriate alcohol use by" the mother. However, the mother's argument fails to take into account the testimony given by then-14-year-old C.J.J. himself at trial, which indicated that the mother, on the date in question, had been "drunk" to the point of "falling out on the floor," had argued with the father, had "tr[ied] to call the police and lie and say that [the father] had a weapon," and had taken C.J.J.'s house key and expelled him from the mother's home. C.J.J. further testified that the mother's "drunk" periods included "every other day ... through the week" and "on the weekends" and that the mother had operated a motor vehicle while intoxicated with C.J.J. as a passenger; additionally, according to the father, the mother's past alcoholic binges had impelled her to spend moneys intended for the children's private-school tuition payments, resulting in their expulsion from private school and their return to public school in Macon County.

C.J.J. further testified that the mother had "hit" him "with her fist" on several occasions. In contrast, C.J.J. testified that the father "doesn't hit or [any]thing like that," that the father had "help[ed] with homework a lot" and had provided supplemental lessons on weekends, and that the father "drives regularly" and "doesn't drink." C.J.J. expressed in his testimony a desire to live with the father, identifying the Maryland neighborhood where he had been living as a "very quiet ... area" with "better" schools; the father added that C.J.J.'s academic grades had improved from "40s" and "50s" while he was in Alabama to a "B" average while he had been living with the father.

"In situations in which ... a previous judicial determination [as to] physical custody [favors] one parent, the other parent, in order to obtain a change in custody, must meet the burden set out in Ex parte McLendon, [455 So. 2d 863 (Ala. 1984) ]. SeeScholl v. Parsons, 655 So. 2d 1060, 1062 (Ala. Civ. App. 1995). The burden set out in McLendon requires the parent seeking a custody change to demonstrate that a material change in circumstances has occurred since the previous judgment, that the child's best interests will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody. Ex parte McLendon, 455 So. 2d at 866.

"When, as here, the trial court enters a judgment following an ore tenus proceeding, but does not make any express findings of fact, this court indulges the requisite presumptions that the trial court made those findings necessary to support its judgment and that those findings are correct. SeeEx parte Fann, 810 So. 2d 631, 636 (Ala. 2001). Additionally, we note that the preference of a child whose custody is at issue ‘is an important factor for the trial court to consider in a custody modification case,’ although that preference is not controlling. S.R. v. S.R., 716 So. 2d 733, 735-36 (Ala. Civ. App. 1998)."

Dean v. Dean, 998 So. 2d 1060, 1064-65 (Ala. Civ. App. 2008). In Dean, this court affirmed a judgment changing custody in a case in which, among other things, there was evidence indicating that the child at issue had expressed a preference to be placed in the custody of the petitioning parent and that the responding parent had been involved in substance abuse, which parallels the situation in this case.

Further, Alabama's Custody and Domestic or Family Abuse Act ("the Act"), Ala. Code 1975, § 30-3-130 et seq., speaks to situations in which a child's custody is in dispute and one or more contestants has perpetrated domestic or family violence. Under the Act, a ...