S.J.R. v. F.M.R.

33 So. 3d 1229
CourtCourt of Civil Appeals of Alabama
DecidedJuly 24, 2009
Docket2071020
StatusPublished
Cited by1 cases

This text of 33 So. 3d 1229 (S.J.R. v. F.M.R.) 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
S.J.R. v. F.M.R., 33 So. 3d 1229 (Ala. Ct. App. 2009).

Opinion

PITTMAN, Judge.

S.J.R. (“the mother”) appeals from a judgment modifying the child-custody provisions of her divorce judgment from F.M.R. (“the father”). The mother contends that the father failed to meet the burden of proof set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), so as to justify a change of custody; that the trial court erred in ordering her to pay child support; and that the trial court erred in admitting hearsay evidence at trial.

This is the fourth occasion that these parties have been before this court concerning the custody of the parties’ now 15-year-old daughter (“the child”). We will briefly summarize the pertinent facts rather than discuss the case history at length. In July 1996, the parties were divorced by a judgment that incorporated an agreement of the parties. In that judgment, the mother was awarded primary physical custody of the child and the father was awarded standard biweekly weekend visitation.

Between 1999 and 2001, the mother and the father became embroiled in a custody-modification proceeding stemming from conflicting allegations that the child’s paternal grandfather or the mother’s flaneé, or both, had sexually molested the child. The trial court entered a judgment changing the child’s primary physical custody from the mother to the father on July 16, 2002, and the mother appealed from that judgment. See S.J.R. v. F.M.R., 933 So.2d 352 (Ala.Civ.App.2004) (“S.J.R. I”). In reviewing the trial court’s 2002 judgment, this court determined that the trial court had improperly admitted hearsay testimony over the objection of the mother; we reversed the trial court’s judgment awarding custody of the child to the father and remanded the cause for a new trial. 933 So.2d at 361-62. That decision was issued by this court on May 7, 2004. The father filed an application for a rehearing on May 20, 2004; that application for a rehearing was overruled on February 25, 2005. On March 11, 2005, the father filed a petition for a writ of certiorari to the Alabama Supreme Court; that petition was denied on January 13, 2006. The certificate of judgment in S.J.R. I was issued on January 18, 2006.

As we noted in S.J.R. v. F.M.R., 984 So.2d 468 (Ala.Civ.App.2007) (“S.J.R. III”), while appellate proceedings were continuing in S.J.R. I, the mother filed a motion on October 19, 2004, to show cause why physical custody of the child should not be immediately returned to the mother and to set a visitation schedule for the father. In response to that motion, the trial court entered the following order on December 8, 2004: “Show cause issue denied. Court officially suspends all visitation based specifically on testing of [the court-appointed child counselor]; visitation suspended for [the] mother.” Under Ex parte Tiongson, 765 So.2d 643 (Ala.2000), a decision of this court “ ‘is not final until th[is] court issues its certificate of judgment, and an application for rehearing in th[is] court and a petition in [the Alabama Supreme] Court for writ of certiorari stay the issuance of that certificate.’ ” 765 So.2d at 643 (quoting Jackson v. State, 566 So.2d 758, 759 n. 2 (Ala.1990)). This court, in S.J.R. v. F.M.R., 975 So.2d 1024 (Ala. Civ.App.2005) (table), treated the December 2004 visitation order as an appealable final judgment and affirmed without opinion; however, as we noted in S.J.R. III, review of that order would have been proper only via a petition for an extraordinary writ.

[1231]*1231The genesis of S.J.R. III was equally convoluted. After the certificate of judgment in S.J.R. I had been issued, the trial court set the ease “ ‘for final disposition on pending petition at 9:00 on 9-7-06.’ ” 984 So.2d at 470. After several continuances, and after both parties had filed numerous motions, on October 18, 2006, the trial court again set the case for a final hearing to dispose of “ ‘all pending matters’ ” on March 8, 2007. Id. However, on October 26, 2006, the mother filed a motion seeking to regain custody of the child immediately; the trial court heard argument, but no additional testimony concerning the mother’s motion on January 4, 2007, but it denied the mother’s request for custody and again awarded the father pendente lite custody of the child. Id. The mother again filed a notice of appeal from the temporary award of custody to the father, thus preventing a final hearing on the merits. Id.

Because we recognized in S.J.R. III that the mother had improperly attempted to appeal from a nonfinal pendente lite custody order, we dismissed that appeal. However, we had consolidated that appeal with the mother’s mandamus petition seeking an immediate custody hearing and a recu-sal of the trial judge. On the basis of Ex parte R.D.N., 918 So.2d 100 (Ala.2005), we granted the mother’s petition for a writ of mandamus ordering the trial judge to re-cuse himself from further proceedings in the case. The certificate of judgment in S.J.R. III was issued on December 7, 2007.

The present appeal is from a custody-modification judgment entered by a second trial judge on July 9, 2008. On March 27, 2008, that judge conducted an ore tenus proceeding on the parties’ competing custody-modification petitions. The parties, the child’s guardian ad litem, the child’s private counselor, the child’s T-ball coach, the child’s second-grade teacher, the child’s fourth-grade-teacher, and the child’s junior-high-school counselor testified during the hearing. The trial court also received certain documentary evidence; the previously recorded testimony of a witness, who was unavailable due to mental illness at the time of trial, and a stipulation that the deposition of the child’s psychiatrist would be offered as soon as it was transcribed.

On July 9, 2008, the trial court entered a final judgment resolving the competing child-custody petitions of the parties. In that judgment, the trial court recounted the lengthy procedural history that had led to the modification hearing in 2008 and noted that the mother had testified on her own behalf and had called only one witness, the father, to support her claims. On the other hand, the judgment noted that the father had called as witnesses numerous teachers and counselors and had offered other testimony from the child’s psychiatrist to support his request for an award of custody of the child. The child’s teachers, without exception, commented on the father’s continuing devotion to and involvement with the child. The child’s coach stated that he had seen a marked improvement in the child’s social and academic skills during the time that the father had been awarded pendente lite custody of the child.

At his deposition, the child’s psychiatrist stated that he had diagnosed the child as having pervasive developmental disorder, which includes a “spectrum of five diagnoses” that include autism and attention deficit/hyperactivity disorder (“ADHD”). In her testimony, the child’s counselor, noted that although she agreed with the psychiatrist’s diagnosis, she understood that the child’s pediatrician had diagnosed the child with ADHD before the child had been referred to the psychiatrist. The counselor stated that the father had hired her to be the child’s private counselor fol[1232]*1232lowing the original custody-modification hearing in 2002; she stated that she had been working with the child extensively since that time. She noted that, at the time of the 2008 hearing, the child was suffering from a mood disorder that was exacerbated by the child’s having entered adolescence.

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Related

Sjr v. Fmr
33 So. 3d 1229 (Court of Civil Appeals of Alabama, 2009)

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33 So. 3d 1229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sjr-v-fmr-alacivapp-2009.