154 So. 3d 1043
Ala. Civ. App.2014Background
- Divorce filed by L.B.; contested custody of three children. Father sought custody/visitation; trial court stayed initial action then transferred to Etowah Circuit Court. Final divorce judgment entered July 9, 2013.
- Trial court awarded mother sole custody of the two younger children and denied the father any visitation with those two children; ordered postminority educational support for the two younger children.
- Historical allegations: pornographic material found on marital computer (FBI involved); oldest child (W.B.) pled guilty to sexual-abuse charges involving middle child (J.B.).
- Middle child (J.B.) disclosed abuse by W.B.; J.B. felt the father disbelieved or defended W.B. Youngest child (C.B.) later alleged inappropriate touching by the father; DHR found allegations "not indicated," but forensic evaluator found the child’s accounts consistent.
- Mental-health and forensic reports (Dr. David Wilson and J.B.’s counselor) concluded both younger children did not want to see the father; recommended no visitation. Trial court conducted sealed ore tenus hearing and in camera interviews of the children.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Validity of postminority educational-support award | Agreed award must be set aside because not authorized under controlling precedent | Father did not contest applicability of Ex parte Christopher on appeal | Reversed — award vacated under Ex parte Christopher, which prohibits postminority educational-support awards under Alabama custody statutes |
| Denial of all visitation with two younger children | Denial appropriate to protect children given allegations, evaluations, and children’s wishes | Trial court abused discretion; should have made express findings and fashioned supervised visitation rather than total denial | Affirmed — record (including evaluations and in camera interviews) supports denial; presumption that trial court made necessary findings applies (no reversible abuse of discretion) |
Key Cases Cited
- Ex parte Christopher, 145 So.3d 60 (Ala. 2013) (Alabama statutes do not authorize postminority educational support)
- Ex parte Bryowsky, 676 So.2d 1322 (Ala. 1996) (appellate presumption that trial court made necessary factual findings when none are stated)
- M.R.D. v. T.D., 989 So.2d 1111 (Ala. Civ. App. 2008) (careful scrutiny required before totally divesting parent of visitation; reversed where evidence did not support termination)
- Hughes v. Hughes, 685 So.2d 755 (Ala. Civ. App. 1996) (presumption that in camera child interviews support trial-court order when not transcribed)