Cowart v. Burnham (Ex parte Cowart)

204 So.3d 884 (Mem)

Ex parte Herman Buford COWART, Jr.

(In re Herman Buford Cowart, Jr.

v.Debra Burnham).

1150286.

Supreme Court of Alabama.

April 1, 2016.

William K. Bradford of Bradford Ladner, LLP, Mountain Brook, for petitioner.

Submitted on certiorari petition only.

Prior report: Ala.Civ.App., 204 So.3d 880.

BRYAN, Justice.

WRIT DENIED. NO OPINION.

STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

MOORE, C.J., and MURDOCK, J., dissent.

MOORE, Chief Justice (dissenting).

I respectfully dissent. Based on the facts as presented in Judge Moore's special writing below and the facts submitted to this Court, I would grant the petition for a writ of certiorari filed by Herman Buford Cowart, Jr. ("the father"), to review the 12–month suspension of his visitation rights and the alleged delegation to Debra Burnham ("the mother") of judicial authority by the Lee Circuit Court ("the circuit court") in deciding visitation.

This case involves a postdivorce custody and visitation dispute. The circuit court found that the father had psychologically abused the child by intentionally alienating the child from the mother. As a result of that finding, the circuit court ordered, among other things, the suspension of the father's visitation rights for 12 months, subject to the mother's allowing visitation during that period on the recommendation of the child's psychologist after consulting with the parents' counselor. The circuit court also ordered the father to support without question any house rules imposed by the mother on the child. Cowart v. Burnham, 204 So.3d 880, 880–84 (Ala.Civ.App.2015) (Moore, J., concurring in part and dissenting in part).

On appeal to the Court of Civil Appeals, the father alleged that the evidence presented, as well as prior decisions of the Court of Civil Appeals, did not support the circuit court's decision to suspend his visitation rights for a year. The father relied on the following expert testimony by Dr. Bridget Smith, the court-appointed psychologist in this case:

" ‘What the research shows is that once there is a permanent decision made by the Court, that generally the symptoms of the alienation decreases significantly as the conflict is, at least in the short-term, resolved because a decision has been made. So in most cases, you would hope that both parents would be able to have—say [the mother] was given custod[y]. You would hope that the father would have liberal visitation. But there would still have to be a monitoring of alienation. And if that doesn't decrease and it continues and [the child] continues to be resistant to working on his relationship with his mother, then you still have to assess outside influences. And in that case, you have to wonder whether there is anything going on that does need to be supervised during visitation.’

"....

" ‘...[T]he standard recommendation of severe alienation is more quality time with the parent who has been alienated and family therapy, and to try [to,] what they usually refer to as, contain the alienation, making sure that the child's not being unduly influenced about negative factors.

" ‘So in this case, [the child] needs more quality time with his mother and more therapy with his mother. And his father needs some guidance, I believe, on setting boundaries and how, for both parents, to encourage the relationship with him. If there continues to be alienation at this level, then the recommendation generally is supervised visits with the parent who is doing the alienation. ’ "

Cowart, 204 So.3d at 882 (Moore, J., concurring in part and dissenting in part)(emphasis added). On appeal, the Court of Civil Appeals affirmed the decision without an opinion; Judge Moore concurred in part and dissented in part and issued a special writing. The father petitioned this Court for certiorari review, which the Court today denies.

Based on the facts in the father's petition, I believe that the father has properly asserted grounds for our review. According to M.R.D. v. T.D., 989 So.2d 1111, 1118 (Ala.Civ.App.2008), a trial court's discretion in awarding visitation "should be exercised with a view towards the policy of preserving relationships between parents and children whenever possible." In addition, " ‘[t]he trial court is entrusted to balance the rights of the parents with the child's best interest to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case.’ " Ratliff v. Ratliff, 5 So.3d 570, 586 (Ala.Civ.App.2008) (quoting Nauditt v. Haddock, 882 So.2d 364, 367 (Ala.Civ.App.2003) ). A trial court may restrict visitation to protect children from conduct, conditions, or circumstances of their noncustodial parent that endanger the children's health, safety, or well-being. Ex parte Thompson, 51 So.3d 265, 272 (Ala.2010). However, "if the danger to the child from visitation can be ameliorated through some lesser restriction, that restriction should be pursued instead of a total denial of visitation." Y.N. v. Jefferson Cty. Dep't of Human Res., 67 So.3d 76, 86 (Ala.Civ.App.2011) (Moore, J., concurring in the result). See also C.O. v. S.O., 85 So.3d 460, 466 (Ala.Civ.App.2011) (reversing the juvenile court's judgment suspending mother's visitation rights entirely because less restrictive measures were not explored before suspension); Pratt v. Pratt, 56 So.3d 638, 641 (Ala.Civ.App.2010) (holding that, in fashioning the appropriate restrictions, the trial court may not use a restriction more broad than necessary to protect the child). Thus, the circuit court in this case was required to tailor visitation rights in a less restrictive manner than a year-long total suspension if such measures were available.

Nevertheless, the circuit court suspended the father's visitation entirely, even though the expert testimony supported a less severe restriction. Dr. Smith gave a thorough analysis addressing the alienation of the mother by the father, which is the core component of the current dispute. Nowhere in her testimony did Dr. Smith suggest that the father should be prohibited from visiting the child. Rather, Dr. Smith gave the standard recommendation in severe alienation cases, which did not include suspending the father's visitation rights, even temporarily. Thus, based on what is before us, it appears there were means available to the circuit court less restrictive than a total suspension of the father's visitation rights for 12 months.

The cases cited by the Court of Civil Appeals for temporarily suspending visitation rights are distinguishable from this case. In Cole v. Cole, 507 So.2d 1333 (Ala.Civ.App.1987), the trial court found that the father caused great emotional and mental detriment to the child by teaching her to lie, steal, deceive, and be disrespectful to authority, thereby breaching her ties with the mother. Based on those facts, the Court of Civil...