J.C. v. G.T.C. (Appeal from Shelby Circuit Court: DR-18-900104.01).

Rel: December 1, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________

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_________________________

J.C.

v.

G.T.C.

Appeal from Shelby Circuit Court
(DR-18-900104.01)

PER CURIAM.

J.C. ("the mother") appeals from a judgment entered by the Shelby

Circuit Court ("the trial court"). We affirm the trial court's judgment in

part, reverse it in part, and remand the case with instructions.

Background

The mother and G.T.C. ("the father") married on November 9, 2008.

Two children were born of the marriage: a son, who was born on May 30,
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2012, and a daughter, who was born on July 7, 2014. Both before and

during the marriage, the parties experienced problems in their

relationship stemming from the father's excessive use of pornography. In

the fall of 2015, while undergoing treatment for his problem with

pornography, which a counselor identified as a sexual addiction, the

father experienced a "triggered or hyper-focused" sensation as he was

applying diaper cream to the daughter's private area on two separate

occasions. On December 31, 2015, the father disclosed those incidents to

the mother, who immediately evicted the father from the family's home.

Although no criminal charges were brought against the father related to

his disclosures, the Department of Human Resources found that the

father was "indicated" for sexual abuse/molestation against the daughter

after conducting an investigation. See Ala. Code 1975, § 26-14-8(a)(1)

(defining "indicated" to mean "[w]hen credible evidence and professional

judgment substantiates that an alleged perpetrator is responsible for

child abuse or neglect").

After three years of informal separation, the parties were divorced

by a judgment entered by the trial court on January 3, 2019; that

judgment incorporated an agreement of the parties. Pursuant to the

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agreement, the mother received sole legal and sole physical custody of

the children, subject to visitation by the father, which was to take place

solely at the mother's discretion. The father agreed that he would attend

therapy with a therapist chosen by the mother, that he would allow the

mother to speak openly with his therapist, and that he would submit to

polygraphs and drug testing at the mother's discretion. The father also

agreed that he would pay child support in the amount of $8,500 per

month and that he would be eligible for visitation with the children only

by remaining current on his monthly child-support obligation. In

addition, the father agreed to pay for any costs incurred in the event that

the children attended private school, to pay for the children's health-

insurance and medical expenses, to pay for the children's postminority-

educational expenses, to relinquish his right to object in the event that

the mother requested to relocate with the children, to convey his interest

in the marital residence to the mother, and to pay for any "major" repairs

necessary to maintain the marital residence while the mother continued

to reside therein.

On July 10, 2020, the father filed a petition seeking a modification

of the divorce judgment. The father later filed a motion seeking pendente

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lite relief in which he requested a reduction of his child-support

obligation and the establishment of a pendente lite schedule of visitation

between him and the children. On March 5, 2021, the trial court entered

a pendente lite order that incorporated an agreement of the parties; in

pertinent part, that order appointed Caroline Taylor "as a Family

Reunification Specialist to counsel [the] father, the minor children, and

[the] mother, as needed, in the reunification process." Specifically, Taylor

was directed to "facilitate the reunification of [the] father and the ...

children" and to "recommend a reunification plan," which was to "include

communication and visitation between the father and the ... children as

[Taylor], in her discretion, deem[ed] appropriate." The parties were

directed to follow Taylor's recommendations, and the father was directed

to be responsible for the payment of Taylor's services. The order included

a procedure for complaints or grievances from either party regarding

Taylor's performance. Additionally, the pendente lite order reduced the

father's child-support obligation to $6,000 per month during the

pendency of the father's modification petition.

On January 4, 2022, the father filed a motion to show cause and for

a modification of the terms of the pendente lite order. He asserted,

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among other things, that the mother had failed to follow Taylor's

recommendations in violation of the pendente lite order, and he

requested a schedule of visitation between him and the children,

sanctions against the mother, and an award of attorney fees. Following

a trial on May 24 and 25, 2022, the trial court entered, on June 30, 2022,

a final judgment granting the father's modification petition in part and

denying it in part. With regard to visitation between the father and the

children, that judgment provides, in pertinent part:

"2. [The father] shall be entitled to visitation with the ...
children as hereinafter set forth, supervised by one of the
following people: Tonya Broncato, [the father's] mother, [the
father's] sister, [the father's] aunt, or any other supervisor
agreed upon by both parties. Unless agreed to by the parties
or ordered by the court, all visitations shall be supervised.

"….

"7. Phase 1 (3 months): [The father] shall have one in-
person visit with the ... children each week. The in-person
visits shall occur on the 1st, 3rd, and 5th Saturday and the
2nd and 4th Sunday of each month. These phase 1 visitations
shall take place at a public place agreed upon between the
parties. Should the parties be unable to agree upon a location,
then they shall take place at a public location of the [father's]
choosing where previous visitations have occurred. The in-
person visits shall be for a period of 2.5 consecutive hours.
Phase 1 shall last for three (3) months following the date of
entry of this order. Upon the expiration of three (3) months,
Phase 2 shall immediately begin.

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"8. Phase 2 (3 months): [The father] shall have one in-
person visit with the ... children each week. The in-person
visits shall occur on the 1st, 3rd, and 5th Saturday and the
2nd and 4th Sunday of each month. The in-person visits shall
be for a period of 4 consecutive hours. Phase 2 shall last for
three (3) months following the date of entry of this order.
Upon the expiration of three (3) months, Phase 3 shall
immediately begin.

"9. Phase 3 (3 months): [The father] shall be entitled to
in-person visitation with the ... children for six (6) hours each
1st, 3rd, and 5th Saturday. [The father] shall also be entitled
to one in-person visit with the ... children for a period of two
(2) hours on the 1st and 3rd Thursday. Phase 3 shall last for
three (3) months following the date of entry of this order.
Upon expiration of three (3) months, the Phase 4 schedule
shall immediately begin.

"10. Phase 4 (12 months): [The father] shall be entitled
to in-person visitation with the ... children for six (6) hours
each 1st, 3rd, and 5th Saturday and Sunday. [The father]
shall also be entitled to one in-person visit with the ... children
for a period of two (2) hours on the 1st and 3rd Thursday.
Phase 4 shall last for one (1) year. Upon the expiration of
Phase 4, the Permanent Schedule shall immediately begin.

"11. Permanent: [The father] shall be entitled to in-
person visitation with the ... children each 1st, 3rd, and 5th
weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.
[The father's] overnight visits shall be supervised by either
his mother, his sister, his aunt, or a supervisor agreed upon
by the parties."

In addition to those specified visitation times, the trial court also

awarded the father specified visitation on certain holidays and on other

special occasions that would suspend the regular "phase" visitations. It
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directed further that, "[p]rior to exercising any overnight supervised

visitation, [the father] shall secure a residence without a roommate." The

judgment directed the father to continue participating in mental-health

counseling and to follow his counselor's recommendations regarding

treatment, frequency of visits, medication, "and the like."

The trial court's judgment reduced the father's child-support

obligation to $4,500 per month; modified that portion of the divorce

judgment related to the father's obligation to pay for the cost of the

children's private school to direct that both parties equally bear the costs

of private school if the children were enrolled therein; modified that

portion of the divorce judgment requiring the father to pay for the

children's postminority-educational expenses to direct that the father pay

no more than half of any such expenses; modified the provision of the

divorce judgment requiring the father to pay for repairs to the marital

residence to require him to pay for only half of any such repairs; and

modified the provision requiring the father to maintain a life-insurance

policy, so that that obligation would terminate when the children reach

the age of majority, among other terminating circumstances. The

judgment granted the father's motion to show cause, finding the mother

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in contempt for her failure to comply with the pendente lite order, and it

ordered the mother to pay $1,000 to the father as reimbursement for his

attorney fees incurred in filing and litigating his motion to show cause.

The trial court denied all other relief requested by either party that was

not addressed in the judgment.

The mother filed a postjudgment motion on August 1, 2022; the trial

court denied that motion on August 15, 2022. The mother timely filed

her notice of appeal to this court on September 26, 2022, and she filed an

amended notice of appeal on that same date. This court conducted oral

argument on August 9, 2023.1

Analysis

I. Visitation

The mother first argues that the trial court exceeded its discretion

in the way that it modified the visitation provisions of the divorce

judgment.

"Visitation is a matter within the discretion of the trial
court. E.W. v. Montgomery County Dep't of Human
Resources, 602 So. 2d 428 (Ala. Civ. App. 1992). The court's
discretion is guided by what will protect and enhance the best
interests and welfare of the child. Id. The court's decision

1Although Presiding Judge Thompson did not attend oral argument

in this case, he has viewed a video recording of that oral argument.
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regarding visitation will not be reversed absent an abuse of
discretion or a showing that it is plainly in error. Id."

Hall v. Hall, 717 So. 2d 416, 417 (Ala. Civ. App. 1998). The mother

contends that the trial court exceeded its discretion in awarding the

father graduated visitation culminating in overnight supervision at the

end of one year because, the mother argues, the trial court received no

evidence indicating that such visitation would protect and enhance the

best interests and welfare of the children.

In Fanning v. Fanning, 504 So. 2d 737 (Ala. Civ. App. 1987), and

Carr v. Broyles, 652 So. 2d 299, 304 (Ala. Civ. App. 1994), this court

approved of graduated-visitation schedules designed to allow a

noncustodial parent to become reacquainted with the children in those

cases. Unlike Fanning and Carr, this case involves visitation between

minor children and a sex-addicted father. At the time of trial, the father

apparently appeared to the trial court to be in remission from his sexual

addiction so that he could safely visit with the children under

supervision; however, the evidence clearly establishes that the father has

repeatedly relapsed. The uncontradicted testimony of the mother shows

that the father claimed several times to have overcome his sexual

addiction only to resume his habits, even when he was undergoing
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counseling. In fact, the father last succumbed to his desire to view

pornography while the case was pending and after the father had been

awarded pendente lite visitation with the children. One counselor

testified that, despite intensive therapy over many years, the father

remained a sex addict, and another counselor testified that no expert

could testify that the father would not sexually abuse the children again.

The evidence in the record clearly shows that the circumstances existing

at the time of trial were subject to change in the future. Nevertheless,

the judgment calls for the visitation periods to gradually increase over

time and ultimately provides that the father will have "permanent"

overnight supervision after one year.

The mother argues that a trial court may not automatically escalate

visitation based on speculation as to future circumstances when those

circumstances may not be in the best interests of the children. In Long

v. Long, 781 So. 2d 225 (Ala. Civ. App. 2000), this court reversed a

modification judgment providing for an automatic modification of

visitation after six months from supervised to unsupervised; we noted

that,

"[i]n its judgment, the trial court did not impose any
conditions or obligations for the mother to fulfill during the
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six months. The trial court simply provided that after six
months the visitation would be modified from supervised
visitation to unsupervised visitation, including overnight
unsupervised visitation."

781 So. 2d at 227. This court held that a trial court may not

automatically modify visitation when there is "no basis to determine

future events." Id. The mother in the present case maintains that the

graduated-visitation provision included in the trial court's judgment

should be vacated because it is based entirely on speculation as to future

circumstances. We agree.

The judgment requires the father to continue his counseling and

to follow the guidance of his counselors, but the judgment provides for

automatic escalation of the visitation periods regardless of the condition

of the father or the progress of his recovery at that time. In light of the

evidence in the record, the trial judge could not possibly know whether

future circumstances would support a determination that increased and

overnight supervised visitation that would expose the children to more

extensive contact with the father would be in the best interests of the

children. See Long, supra. We, therefore, conclude that the judgment

violates Alabama law by allowing the father to engage in increasing

visitation over time and to engage in overnight visitation at the end of
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one year, based on the sole condition that the father has secured a

residence without a roommate by that time.

We therefore reverse the trial court's judgment awarding the father

graduated-supervised visitation, and we remand the case for the trial

court to enter a supervised-visitation schedule based solely on current

circumstances. Given the length of time that this appeal has been

pending, we authorize the trial court to take additional evidence, if

deemed necessary, to ascertain the supervised-visitation schedule that

currently serves the best interests of the children.

II. Contempt

The mother next argues that the trial court erred in finding her in

contempt.

" 'Absent an abuse of discretion, or unless the judgment
of the trial court is unsupported by the evidence so as to be
plainly and palpably wrong, the determination of whether a
party is in contempt is within the sound discretion of the trial
court.' Shonkwiler v. Kriska, 780 So. 2d 703, 706 (Ala. Civ.
App. 2000) (citing Shellhouse v. Bentley, 690 So. 2d 401 (Ala.
Civ. App. 1997)). In order to find [a party] guilty of contempt
under either Rule 70A(a)(2)(C)(ii) (criminal contempt) or Rule
70A(a)(2)(D) (civil contempt), Ala. R. Civ. P., [a] trial court
would have ... to determine that the [party] had willfully
failed or refused to comply with a court order. See T.L.D. v.
C.G., 849 So. 2d 200, 205 (Ala. Civ. App. 2002)."

Carnes v. Carnes, 82 So. 3d 704, 715 (Ala. Civ. App. 2011).
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The record on appeal indicates that the mother had failed to comply

with Taylor's recommendations to increase the frequency and duration of

the father's visits between the time her initial counsel filed a motion to

withdraw on October 5, 2021, and the time she retained new counsel on

January 6, 2022. The evidence also indicates that, in late March or early

April 2022, Taylor had requested that the parties sign updated intake

and consent paperwork, that the mother had refused to sign that

paperwork based on her concerns that it modified the terms of Taylor's

payment provisions as outlined in the pendente lite order, and that, since

that time, the mother had declined to allow visitation or

videoconferencing calls between the father and the children, despite her

having previously complied with those communications according to

Taylor's recommendations.

The mother argues on appeal that her failure to comply with

Taylor's recommendations was not willful, that she had complied with

the grievance process outlined in the pendente lite order to challenge

Taylor's suggestions regarding the father's visitation with the children,

and that the trial court exceeded its discretion by holding her in

contempt. The mother testified that she had not allowed

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videoconferencing calls between the father and the children during the

resolution of her conflict with Taylor because, she said, it was her

understanding that those calls were tied to the visitation, but also

because the children did not like participating in the calls and she

thought that the calls would be difficult for them. The trial court could

have considered the mother's failure to obtain new counsel for a three-

month period, during which she failed to follow Taylor's

recommendations to increase the father's visitation periods with the

children, and the mother's refusal to allow visitation and

videoconferencing calls between the father and the children in the weeks

leading up to the trial, combined with her failure to file a motion related

to the contractual dispute with Taylor and the mother's testimony

indicating that she did not desire to co-parent the children with the

father, as evidence supporting its conclusion that the mother's failure to

comply with the pendente lite order was willful. Accordingly, the trial

court's finding of contempt against the mother is affirmed.

III. Support Obligations

We next consider the mother's arguments related to the father's

support obligations. The mother first asserts that the trial court abused

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its discretion in modifying the father's child-support obligation and his

obligation to pay private-school tuition for the children, which was

classified as additional child support.

"An award of child support may be modified only upon
proof of a material change of circumstances that is substantial
and continuing. Browning v. Browning, 626 So. 2d 649 (Ala.
Civ. App. 1993). The parent seeking the modification bears
the burden of proof. Cunningham v. Cunningham, 641 So. 2d
807 (Ala. Civ. App. 1994). Whether circumstances justifying
modification of support exist is a matter within the trial
court's discretion. Id. We will not disturb the trial court's
decision on appeal unless there is a showing that the trial
court abused that discretion or that the judgment is plainly
and palpably wrong. Id.; Douglass v. Douglass, 669 So. 2d 928,
930 (Ala. Civ. App. 1995)."

Romano v. Romano, 703 So. 2d 374, 375 (Ala. Civ. App. 1997).

The father testified that his adjusted gross income totaled $193,129

in 2018, the year that the parties entered into the agreement that was

incorporated into the divorce judgment. He stated that his income had

decreased after the divorce was finalized; that he had incurred almost

$100,000 in debt to stay current with his support obligations; and that he

had filed for bankruptcy in October 2020. The father testified that he

had seen an increase in his income since that time but, he said, his

income fluctuates substantially, and his budget did not include any

savings. He submitted as an exhibit a monthly budget, which indicates
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that the father's salary for 2021 totaled $170,786.68 and that he has a

monthly budget deficit in the amount of $3,223. The trial court

determined that a material change in circumstances had occurred since

the entry of the divorce judgment based on the father's testimony

indicating that he had incurred significant debt for the purpose of

meeting his child-support obligation and that his employment income

had decreased and on the mother's testimony indicating that she had

secured a part-time job but that she continued to homeschool the children

rather than work full time.

The mother argues on appeal that the trial court erred in reducing

the father's child-support obligation because his yearly income had only

slightly decreased and there was no indication that the children's needs

had changed. We cannot conclude, however, that the trial court abused

its discretion in reducing the father's child-support obligation in light of

the evidence indicating that, to meet the obligations assumed by the

father in the divorce judgment, he had been required to incur large

amounts of debt, which had, in turn, led to his filing for bankruptcy.

Moreover, the trial court awarded child support in an amount that

exceeds the amount recommended by the application of the child-support

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guidelines. See Rule 32, Ala. R. Jud. Admin. Accordingly, the trial

court's modification of the father's child-support obligation is affirmed.

Because the father's obligation to pay for the children's private-

school tuition was classified as an additional child-support award, the

modification of that obligation is also affirmed in light of the evidence

indicating that the father's ability to pay those amounts had changed. To

the extent the mother argues that the modification of the father's

obligation to pay for the children's private-school tuition was not ripe for

adjudication, the mother has failed to provide any citation to authority in

support of that argument in violation of Rule 28(a)(10), Ala. R. App. P.,

and, thus, we decline to consider that argument.

The mother next argues that the trial court erred in modifying the

father's obligation to pay for the entirety of the children's postminority-

educational expenses. "A finding of a material change in circumstances

since the entry of the modification judgment is a valid legal basis for

modifying [the father's] postminority-educational-support obligation."

Gore v. White, 96 So. 3d 834, 844 (Ala. Civ. App. 2012). As discussed

above, the trial court's determination that a material change in

circumstances had occurred is supported by the evidence presented. The

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mother again argues that this issue was not ripe for the trial court's

consideration; however, she fails to cite any authority in support of that

argument, and, thus, we decline to consider the same. See Rule 28(a)(10).

We next consider the mother's argument that the trial court erred

in modifying the father's responsibility to pay for "major" repairs

necessary to maintain the marital residence. To the extent she argues

that that provision of the divorce judgment was in the nature of a

property settlement, rather than a modifiable support award, we note

that, in Segers v. Segers, 655 So. 2d 1014, 1016 (Ala. Civ. App. 1995), this

court stated that, "[f]or an award to constitute a property settlement, at

least two requirements must be met: (1) the amount and time of payment

must be certain; and (2) the right to the payment must be vested and not

subject to modification. Daniels v. Daniels, 599 So. 2d 1208 (Ala. Civ.

App. 1992)." In this case, the provision of the divorce judgment requiring

the father to pay for major repairs to the marital residence meets neither

of those requirements. The amount of and time of payment for the

repairs are unspecified, and the obligation is ongoing and directed to

repairs that arise "for so long as the [mother] resides" in the marital

residence. Accordingly, the trial court did not err in categorizing the

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repair requirements as a modifiable-support award rather than a

property settlement. Because we have already determined that the trial

court did not err in concluding that a material change of circumstances

had occurred regarding the father's ability to pay the financial

obligations outlined in the divorce judgment, we conclude that the

modification of the father's obligation to pay for the repairs to the marital

residence did not amount to an abuse of discretion.

IV. Attorney's Fees

The mother last argues that the trial court erred in declining to

award her an attorney fee as requested. In Glover v. Glover, 678 So. 2d

174, 176 (Ala. Civ. App. 1996), this court stated, in pertinent part:

"Whether to award an attorney fee in a domestic
relations case is within the sound discretion of the trial court
and, absent an abuse of that discretion, its ruling on that
question will not be reversed. Thompson v. Thompson, 650 So.
2d 928 (Ala. Civ. App. 1994). 'Factors to be considered by the
trial court when awarding such fees include the financial
circumstances of the parties, the parties' conduct, the results
of the litigation, and, where appropriate, the trial court's
knowledge and experience as to the value of the services
performed by the attorney.' Figures v. Figures, 624 So. 2d 188,
191 (Ala. Civ. App. 1993)."

In the present case, in consideration of the mother's contemptuous

conduct, the father's general success on the merits of his petition, and the

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award of child support to the mother exceeding the amount recommended

by the child-support guidelines, we cannot conclude that the trial court

erred in declining to award an attorney fee to the mother.

Conclusion

We reverse those portions of the trial court's judgment related to

the father's modified visitation schedule with the children and remand

the case for the entry of a judgment consistent with this opinion. We

otherwise affirm the judgment.

The mother's request for an award of an attorney fee on appeal is

denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

WITH INSTRUCTIONS.

Thompson, P.J., and Moore and Hanson, JJ., concur.

Edwards and Fridy, JJ., concur in the result, without opinions.

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