Rel: December 1, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

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ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2023-2024

_________________________

CL-2022-1025

_________________________

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 healthinsurance and medical expenses, to pay for the children's postminorityeducational 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 inperson 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 inperson 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 inperson 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 inperson 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 threemonth 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 privateschool 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 postminorityeducational 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.