Mrd v. Td

989 So. 2d 1111, 2008 Ala. Civ. App. LEXIS 29, 2008 WL 203761
Procedural entryThis page is a short order in Mrd v. Td. Read the opinion of the Court — 989 So. 2d 1111
Court of Civil Appeals of Alabama·Decided January 25, 2008·No. 2060375·Published

Opinion

989 So.2d 1111 (2008)

M.R.D.
v.
T.D.

2060375.

Court of Civil Appeals of Alabama.

January 25, 2008.
Certiorari Denied March 14, 2008 Alabama Supreme Court 1070682.

*1112 Bruce N. Adams of Rice & Adams, PC, Anniston, for appellant.

Chad Lee, Wedowee, for appellee.

PER CURIAM.

M.R.D. ("the father") appeals from a judgment entered by the Randolph Circuit Court to the extent that it terminated his visitation with his minor child. We reverse and remand.

On June 3, 2004, the trial court entered a judgment divorcing the father and T.D. ("the mother"). The judgment declared that the parties would share joint legal custody of the minor child born of the marriage on April 30, 2001, but that the mother would have sole physical custody of the child with the father receiving specified visitation rights.

On April 22, 2005, the father filed a petition for modification of custody and a motion for contempt, alleging that the mother had violated the terms of the divorce judgment by denying him his visitation rights.[1] The father requested that the court award him primary physical custody of the child and that the court hold the mother in contempt for her failure to allow him to exercise his court-ordered visitation. On May 9, 2005, the mother filed an answer to the father's petition for modification and his motion for contempt; she also filed a motion to terminate the father's visitation. In support of her motion to terminate visitation, the mother alleged the following:

"1) The minor child has returned home from visitation with his father with a black eye and a busted nose.
"2) The [father] is verbally abusive to the child.
"3) The [father] does not spend time with the child during visitation.
"4) The [father] has violated this Court's order by consuming alcohol in the presence of the child.
"5) The [father] has exposed the child to things that he should not be exposed to which cause the child to be upset, confused, etc.
"6) The child cries because he does not want to go to visit with [the] father."

Subsequently, the child was interviewed by various counselors and psychiatrists. Based on the content of one of those interviews, the mother claimed that the father had sexually abused the child. The father has consistently and adamantly denied that he committed any sexual abuse.

On September 25, 2006, and October 25, 2006, the trial court held ore tenus hearings *1113 on the petition to modify and on the motion to terminate visitation. On November 27, 2006, the court entered a judgment denying the father's petition to modify and granting the mother's motion to terminate visitation. The court also denied all other pending motions or petitions, which included the motion to hold the mother in contempt for denying the father visitation. In its order, the trial court found that "there is ample evidence that there is a probability that the sexual abuse did occur." Accordingly, the trial court ordered that "[the father's] visitation with [the] child be and is hereby terminated and that [the father] shall have no contact whatsoever with [the child]."

On December 27, 2006, the father filed a motion to alter, amend, or vacate the judgment. On December 29, 2006, the court denied the father's postjudgment motion. The father timely appealed to this court on February 1, 2007. The father asserts three issues on appeal: (1) whether the trial court's decision amounts to an action outside that court's discretion in light of the evidence adduced; (2) whether, as a matter of law, a judgment denying all visitation between a noncustodial parent and a child must be supported by clear and convincing evidence; and (3) whether the trial court erred in allowing results of a polygraph test into evidence over the father's objection.

We first address the father's contention that the trial court erred in considering the results of a polygraph test administered by an investigator for the Calhoun County sheriff's office and admitted as part of the business records of the Randolph County Department of Human Resources. Ordinarily, the results of a polygraph examination are not admissible because "the reliability of polygraph examinations have not been sufficiently established." Smith v. State, 698 So.2d 189, 211 (Ala.Crim.App.1996). However, based on the record in this case, we conclude that the father failed to properly object to the introduction of the polygraph examination and its results.

Before the commencement of the trial, the father's attorney moved the court to remove any reference to the polygraph examination from the record. At that time, the trial court denied that motion on the basis that the results of the examination were contained in business records.[2] The father's attorney did not request an order from the trial court that further objection to the admissibility of the polygraph records would not be necessary. When the mother's attorney introduced the business records containing the polygraph results into evidence, the father's attorney did not object to the admissibility of the results of the polygraph examination even after the trial court pointed out that it considered the parties to have stipulated to the admissibility of all the business records. The father's attorney even questioned the witness from the Randolph County Department of Human Resources about the reliability of the polygraph examination.

We consider the father's motion to exclude any reference to the polygraph examination to be a motion in limine. The prevailing rule in Alabama is that

"an appellant who suffers an adverse ruling on a motion to exclude evidence (or other matters, e.g., argument of counsel), made in limine, preserves this adverse ruling for post-judgment and *1114 appellate review only if he objects to the introduction of the proffered evidence or other matters and assigns specific grounds therefor at the time of trial, unless he has obtained express acquiescence of the trial judge that such subsequent objection to evidence proffered at trial and assignment of grounds therefor are not necessary."

Liberty Nat'l Life Ins. Co. v. Beasley, 466 So.2d 935, 936 (Ala.1985). Because the father did not state any objection to the admissibility of the polygraph records at the time they were offered into evidence, he has waived any argument that the trial court erred in considering those records. See Bolden v. State, 568 So.2d 841 (Ala. Crim.App.1989).

We next consider the correctness of the trial court's decision regarding visitation. The general principle of review to which this court is firmly committed is that a determination of a child's visitation with a noncustodial parent is a matter within the trial court's discretion. We will not alter such a determination unless the trial court's decision is unsupported by the evidence so as to fall outside of the trial court's discretion and to be contrary to the best interests of the child. Evans v. Evans, 668 So.2d 789, 789-90 (Ala.Civ.App. 1995).

However, Alabama statutes and caselaw clearly espouse a policy favoring continued contact between children and noncustodial parents following a divorce. See Carr v. Broyles, 652 So.2d 299, 304 (Ala.Civ.App. 1994) ("A noncustodial parent should be given the opportunity to maintain a meaningful relationship with her child."); Naylor v. Oden, 4

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Mrd v. Td, 989 So. 2d 1111, 2008 Ala. Civ. App. LEXIS 29, 2008 WL 203761 (Ala. Ct. App. 2008).

989 So. 2d 1111 (Mrd v. Td) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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M.R.D. v. T.D.
989 So. 2d 1111 (Court of Civil Appeals of Alabama, 2008)