Griffin v. Griffin

159 So. 3d 67, 2011 WL 11817612, 2014 Ala. Civ. App. LEXIS 117
CourtCourt of Civil Appeals of Alabama
DecidedJuly 11, 2014
Docket2120900
StatusPublished
Cited by13 cases

This text of 159 So. 3d 67 (Griffin v. Griffin) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Griffin v. Griffin, 159 So. 3d 67, 2011 WL 11817612, 2014 Ala. Civ. App. LEXIS 117 (Ala. Ct. App. 2014).

Opinion

THOMPSON, Presiding Judge.

On May 22, 2012, Darrell Denese Griffin (“the mother”) filed a petition seeking to modify the child-custody and child-support provisions of a 2011 judgment that divorced her from Thomas Ali Griffin (“the father”). In that petition, the mother also sought to have the father held in contempt for his alleged failure to comply with some portions of the divorce judgment pertaining to the division of the parties’ marital property and marital indebtedness. The father answered and counterclaimed, seeking an award of custody of the minor child born of the parties’ marriage. During the pendency of the action, the mother moved the trial court to impute income to the father for the purposes of calculating his child-support obligation. The father later moved to impute income to the mother for that same purpose.

The trial court received ore tenus evidence over the course of three days. At [69]*69the end of the first day of testimony on August 9, 2012, the trial court left in place what appear to be the custody and visitation provisions of the divorce judgment, pending a final determination of the parties’ claims. The trial court also orally told the parties, among other things, to submit, within seven days, Rule 32, Ala. R. Jud. Admin., child-support forms indicating their respective gross incomes.

On October 11, 2012, the trial court conducted a brief ore tenus hearing at which the father testified that he could not comply with the mother’s discovery requests regarding his income and bank accounts because, the father stated, production of that information might result in a criminal action against him. The father argued that production of the requested discovery would violate his Fifth Amendment right against self-incrimination. The record contains no indication of the nature of the criminal investigation the father purportedly anticipated. Regardless, the trial court overruled the father’s objections to the discovery requests and ordered the father to produce the requested documents within 24 hours.

On October 15, 2012, the mother moved to suspend the father’s visitation based on what she characterized as his admission during the October 11, 2012, hearing that he was engaging in criminal activity. The father later moved the trial court to modify the visitation provision of the divorce judgment.1

On June 6, 2013, the trial court entered a final judgment in which it awarded the father visitation with the child on the first, third, and, when applicable, fifth weekends of each month and, in addition to certain holiday visitation, awarded the father visitation with the child every Wednesday night. In addition, the trial court ordered, among other things, that the father pay $494 per month in child support. Although the June 6, 2013, judgment did not explicitly deny the mother’s claims pertaining to the enforcement of the property-division portions of the divorce judgment or the father’s custody-modification claim, that judgment contained language denying any relief sought by the parties that was not specifically addressed in the judgment. The mother timely appealed.

On appeal, the mother first argues that the trial court erred “in its custody and visitation modification determination.” The mother does not specify in her brief filed in this court what aspects of custody the trial court failed to modify. In their claims asserted in this action, both parties sought an award of “primary physical custody” of the child. The record does not contain the 2011 judgment that divorced the parties, and the parties did not present any specific evidence regarding the terms of that judgment concerning the award of custody of the minor child born of the marriage. See Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990) (An appellant “bear[s] the burden of ensuring that the record on appeal contains sufficient evidence to warrant reversal.”). However, we note that the nature of the questioning and the testimony in the record on appeal indicate that, pursuant to the terms of the divorce judgment, the father exercised visitation with the child on the first, third, and, when applicable, fifth weekends of each month and on Wednesday nights each week. Thus, the record indicates that the divorce judgment awarded the mother primary physical custody of the child. See Ex parte Johnson, 673 So.2d 410, 413-14 (Ala.1994) (Although the parties referred to an initial award of joint custody, be[70]*70cause that award favored the mother, it constituted an award of primary physical custody.). The June 6, 2013, judgment from which the mother now appeals also awards her primary physical custody of the child. To the extent the mother argues that the trial court erred in failing to modify • custody, the mother has failed to demonstrate error on appeal.

We now address the mother’s argument as it pertains to her contention that the trial court erred in failing to modify the father’s visitation. The mother again fails in her appellate brief to address the specific error with regard to visitation that she contends was made by the trial court. However, reading her entire argument on the issue, it appears that the mother focuses primarily on the request made in her initial petition that the father’s midweek visitation be terminated. The mother contends in her appellate brief that she met the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), with regard to her claim seeking a modification of the father’s visitation. However, we note that a parent seeking to modify the visitation rights of a noncustodial parent must demonstrate a material change in circumstances and that the proposed change in visitation would serve the child’s best interests. Ex parte Dean, 137 So.3d 341, 342 n. 2 (Ala.Civ.App.2013); In re Stewart, 481 So.2d 899, 901 (Ala.Civ.App.1985). Further,

“[t]he trial court has broad discretion in deciding on visitation rights of the noncustodial parent. Wallace v. Wallace, 485 So.2d 740 (Ala.Civ.App.1986). This discretion applies to modification proceedings as well as to the original custody proceeding. Id. ‘When the issue of visitation is determined after oral proceedings, the trial court’s determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 520 So.2d 512 (Ala. Civ.App.1987).’ Dominick v. Dominick, 622 So.2d 402, 403 (Ala.Civ.App.1993).”

Flanagan v. Flanagan, 656 So.2d 1228, 1230 (Ala.Civ.App.1995).

In arguing that the trial court erred in denying her request that the father’s midweek visitation be terminated, the mother points out that the father, in refusing to answer certain discovery requests concerning his financial documents, testified before the trial court that the production of those documents would violate his Fifth Amendment right against self-incrimination. The record does not specify the nature of the criminal activity that might be reflected in those documents. In her October 15, 2013, “motion to reconsider,” the mother’s attorney made a specific allegation concerning an alleged past criminal prosecution of the father. The mother references that allegation in her initial brief to this court as if it were evidence that could be considered by the trial court, but the statements or arguments of a party’s attorney made in a motion do not constitute evidence. Fountain Fin., Inc. v. Hines, 788 So.2d 155, 159 (Ala.2000) (holding that statements in a motion were not evidence); A.T. v. P.A.F.,

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Bluebook (online)
159 So. 3d 67, 2011 WL 11817612, 2014 Ala. Civ. App. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffin-v-griffin-alacivapp-2014.