N.T.C. v. M.S.C.

342 So.3d 558

N.T.C.

v.M.S.C.

2200088

Court of Civil Appeals of Alabama.

June 11, 2021

*Note from the reporter of decisions: Judge Bryant, district judge, Perry County, was temporarily assigned to preside over this case.

Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant.

Tamika R. Miller of Miller Smith, LLC, Montgomery, for appellee.

EDWARDS, Judge.

N.T.C. ("the father") appeals from a judgment entered by the Bibb Circuit Court ("the trial court") denying his petition to modify custody of the parties’ children. He argues that the trial court erred by not holding a hearing regarding his postjudgment motion and that the evidence required the trial court to grant his modification petition. We affirm.

The father and M.S.C. ("the mother") married in December 2006 and were divorced pursuant to a judgment entered by the trial court in August 2013 ("the divorce judgment"). Pursuant to the divorce judgment, the father and the mother were awarded joint physical custody -- "seven on/seven off" -- and joint legal custody of their two children, a son, who was born in early 2009, and a daughter, who was born in early 2010. Since the entry of the divorce judgment, the father and the mother have each remarried.

In 2014, the father filed a petition in the trial court regarding the children's education because he and the mother could not reach an agreement about where the children would attend school. The father and the mother resolved that disagreement, however, and the children were enrolled in a public school in Bibb County. The trial court's disposition of the 2014 petition is unclear from the record.

On May 7, 2019, the father filed a petition to modify custody, seeking both a pendente lite award of sole physical custody of the children based on an alleged emergency and, after a hearing, a permanent award of sole physical custody of the children. The father further requested that the mother's visitation be supervised, which, he alleged, would be consistent with a safety plan that had been established by the Bibb County Department of Human Resources ("DHR") following an incident at the children's school in late April 2019. Regarding that incident, Kayla Moore, a DHR service supervisor, testified at the trial of the custody-modification petition that DHR had

"[r]eceived a report that there were some issues with [the daughter's] possibly viewing pornography, watching her mother engage in sexual activity with [the stepfather]. And then once we got involved with that and started talking to her, it was then brought out that [the stepfather] ... allegedly shot [the son] with an airsoft gun [as a disciplinary measure]."

Moore stated that DHR began an investigation and met with the children at the school. She continued:

"[W]hen they were talking about [the daughter] seeing [the mother] engaging in sex with [the stepfather], it was stated that she took a knife and opened the door and that's how she saw that. And then the pornography, I think it was something on her tablet that was easily addressed by just saying, hey, look, put some parental controls on this.

"And then when we talked to [the son] ..., that's when we got the allegations of [the stepfather's] shooting him with the airsoft gun. And we took that as an allegation, and we kind of ran with that."

The father alleged that the mother was not adequately supervising the children, that she had moved eight times in the last six years, that the children were underperforming at school when in the mother's care, that the mother had failed to administer the son's prescribed medication for attention-deficit/hyperactivity disorder when he had previously been prescribed that medication, and that the stepfather had used improper corporal punishment on the parties’ son.

After the father filed his modification petition, the trial court entered an ex parte order awarding him sole physical custody of the children and awarding the mother supervised visitation, pending a hearing scheduled for August 13, 2019, which was subsequently rescheduled for September 5, 2019. On May 17, 2019, the Judicial Inquiry Commission ("the JIC") filed a complaint with the Court of the Judiciary ("the COJ") against Judge Marvin Wayne Wiggins, who was the Presiding Judge for the Fourth Judicial Circuit and the judge to whom the father's modification petition had been assigned. Thereafter, Judge Collins Pettaway, Jr., temporarily presided over the case.¹

On June 21, 2019, the mother filed an answer denying the allegations in the father's modification petition.² A few days later, the mother filed an emergency motion seeking the entry of a pendente lite order reinstating the custody arrangement from the divorce judgment because DHR had concluded that the allegations against her and the stepfather were "not indicated." She attached two letters from DHR dated June 17, 2019; those letters stated that DHR had not found sufficient evidence to support a finding of child abuse or neglect against the mother or the stepfather.

The father filed a response to the mother's emergency motion. He opposed the motion because DHR still had an open case to provide services to the mother and the stepfather, including requiring both of them to complete parenting classes and requiring the stepfather to complete anger-management classes. The father also filed a motion seeking the appointment of a guardian ad litem for the children, which the mother opposed.

Judge Pettaway set the mother's emergency motion and the father's motion for the appointment of a guardian ad litem for a hearing to be held on August 15, 2019. The record does not include a transcript of the August 2019 hearing. After that hearing, Judge Pettaway entered an order directing that, based on his consideration of the arguments and evidence presented at that hearing, and after consulting with Judge Wiggins (presumably regarding the basis for his ex parte order), the parties return to the custody arrangement provided in the divorce judgment. The order also set the case for a trial on November 21, 2019. On September 4, 2019, the father filed a renewed motion for the appointment of a guardian ad litem for the children. Judge Pettaway granted that motion that same day.

On November 18, 2019, the COJ entered an order disposing of the disciplinary proceeding against Judge Wiggins. It is unclear from the record whether Judge Wiggins resumed presiding over the case after the COJ's decision in November 2019. However, at some point, the JIC filed a second complaint with the COJ against Judge Wiggins, and Judge Robert D. Bryant, a district judge in Perry County, which is in the Fourth Judicial Circuit, began presiding over the case on or before November 21, 2019, when he entered a discovery order and reset the case for trial. The record does not include an order regarding an assignment of the case to Judge Bryant, but the father does not argue that Judge Bryant was not properly presiding over the case. Thus, like with Judge Pettaway, we presume that an order was entered consistent with applicable procedural law. See Ex parte Atchley, 936 So. 2d 513, 516 (Ala. 2006) ; see also note 1, supra.

On January 27, 2020, Judge Bryant held ore tenus proceedings on the father's modification petition, which included interviewing the children in chambers in the presence of the guardian ad litem.³ At the close of the trial, Judge Bryant requested that each party submit a proposed order within seven days and that the children's guardian ad litem make a recommendation to the court. Each party timely submitted a proposed order. On February 3, 2020, based upon a joint motion of the JIC and Judge Wiggins, the COJ entered an order dismissing the JIC's second complaint against Judge Wiggins. Judge Wiggins again began presiding over the case, but it is unclear from the record when that occurred.

On February 4, 2020, the guardian ad litem filed her recommendation regarding custody. According to the guardian ad litem, based on the testimony and evidence presented at trial, particularly the testimony of Moore and the mother, there was "clear evidence that the father is the more stable parent" and that the mother had a "history of bad parental decision-making." The guardian ad litem also made a few comments that appear to have been based on information she had gleaned from working with the parties and the children rather than from the evidence presented at trial. She summarized her opinion regarding the respective families as follows:

"[The mother] is a loving mother and a capable one. However, she has repeatedly displayed poor judgment and seems to be a bit immature. Moreover, her relationship with [the stepfather] is not as stable as that of [the father] and [the stepmother]. This is not to say that the [father and the stepmother] need no improvement. [The stepmother] needs to ‘stay in her lane’ and learn that part of loving these children is respecting the deep and unique bond they share with their natural mother. If she truly loves these children, as I believe she does, she should practice more silence and forbearing as the ‘bonus’ mother without needing affirmation or putting down [the mother].

"Though I will not divulge the privileged and confidential disclosures of these minor children, neither party should rest easy thinking they have done no damage. The mother has obviously coached the children, [the stepfather] is an unstable figure in their lives (as he is in the mother's, in the [guardian ad litem's] opinion), and the father and [the stepmother] are far too fixated on their fears and worries to be properly encouraging the children's love and affection for their natural mother. No one is more keenly aware of this dynamic than these children. The children are anxious when they perceive that something they have said may negatively reflect on their mother, yet they are at ease referring to certain tendencies, as they know their father and [the stepmother] are always watching for the mother's missteps.

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