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In re Marriage of Spent

August 26, 2003

IN RE: THE MARRIAGE OF JAMI M. SPENT, PETITIONER-APPELLANT, AND BRADLEY K. SPENT, RESPONDENT-APPELLEE.


Appeal from Circuit Court of Macon County No. 99D384 Honorable John K. Greanias, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Myerscough

UNPUBLISHED

In February 2003, the trial court removed custody of A.S. from petitioner, Jami M. Spent, and awarded custody to respondent, Bradley K. Spent (Brad). Jami appeals, arguing that (1) the trial court erred when it failed to strike and dismiss Brad's petition to modify custody; (2) the trial court erred when it granted a change in custody because Brad failed to establish by clear and convincing evidence that custody with her constituted a serious endangerment to the physical, mental, moral, or emotional health of A.S.; (3) the trial court's decision to award sole custody to Brad was against the manifest weight of the evidence; and (4) the trial court's finding her in indirect civil contempt was against the manifest weight of the evidence. We affirm.

I. BACKGROUND

Because the parties are familiar with the facts and acrimonious history of this case, we set forth only those facts necessary to understand this court's disposition. The parties married on July 16, 1994, and one child was born to the marriage, A.S. (born June 26, 1994). Jami filed a petition for dissolution of marriage on June 28, 1999. The parties filed a written stipulation, agreeing that it was in A.S.'s best interests that the parties have joint custody, that A.S. should reside with Jami, and Brad would have reasonable visitation. In July 1999, the trial court entered a judgment of dissolution of marriage, awarding the parties joint custody of A.S. pursuant to the written stipulation.

On October 10, 2001, Brad filed a motion for scheduled visitation. On October 31, 2001, the trial court held a hearing on Brad's motion and entered an order setting forth Brad's visitation schedule and location for the exchange. On that same day, Jami filed a petition to terminate joint legal custody and to award her custody and to restrict Brad's visitation. On November 1, 2001, Jami filed a motion to vacate the visitation order. On November 2, 2001, Brad filed a petition for rule to show cause against Jami, alleging she willfully and contumaciously failed to comply with the court's visitation order. On November 30, 2001, Brad filed a petition for indirect civil contempt, alleging Jami denied him visitation on several occasions.

In April 2002, the trial court conducted a hearing on the issues pending, conducted an in camera interview of A.S., and denied Jami's petition to terminate joint legal custody, to award custody to her, and to restrict Brad's visitation. The court entered further orders regarding the other pending matters.

On October 15, 2002, Jami filed a petition to change the pickup place and time that was scheduled for hearing on October 28, 2002. On the date of the hearing, Brad's attorney requested a continuance. Jami objected, and the court stated:

"Well, if what you are worried about, ma'am, is somehow you are going to be in noncompliance with the court order because of your lack of vehicle, you filed your motion and that testimony would be heard. So if your concern is some amount of contempt on account of that, that should not be a concern to you."

On December 20, 2002, Jami filed a verified petition for an order of protection as a result of a physical incident that occurred on December 16, 2002, at the Argenta High School. The trial court entered an emergency order of protection and specifically told Jami that she was still under court order to provide Brad visitation, which was not going to be stopped by the emergency order of protection.

In January 2003, Brad filed a petition for adjudication of indirect civil contempt, a petition for modification of judgment as to custody, and a petition for sanctions. Jami filed a motion to strike and dismiss the petition for modification of judgment as to custody. The trial court held a hearing on January 31, 2003, and February 3, 2003, on the pending petitions and motions. The evidence revealed that fighting and cussing among the parties, family members, and Jami's fiancé occurred during visitation exchanges, at public events, and in front of A.S. The police were often called. The visitation exchanges were to occur at a gas station that was located approximately one mile from the parties' respective residences. The last visit Brad had with A.S. was on October 31, 2002, because Jami stopped bringing A.S. to the gas station. Brad did not have his visitation with A.S. over Christmas. Several witnesses testified, giving varying accounts about an incident that occurred in December 2002 after A.S.'s Christmas program, where there were words between Jami, Brad's wife, Jami's fiancé, and Brad that resulted in an altercation between Brad and Jami's fiancé, all of which took place in front of A.S. There was also testimony that the parties make disparaging remarks about each other in front of A.S.

Jami testified that she lives with her fiancé, Joe Masters, in his house. She has two older daughters who do not live with her. Jami does not own a vehicle. She is employed at a tanning center, where she works nights and weekends (4 p.m. to either 8 or 9 p.m.), working between approximately 20 and 26 hours a week. Joe usually takes her back and forth to work, but she sometimes drives herself in Joe's truck.

Joe owns two business trucks, one of which is a "dump truck." Joe previously owned a Cadillac that she sometimes drove. He planned on selling the Cadillac, which meant that she would not have a vehicle to drive, and that was the reason she wanted to change the visitation exchange to take place in her driveway rather than at the gas station. Jami admitted that she called A.S.'s school and asked that they prohibit Brad from visiting A.S. at her school and also made that request in the order of protection that was ultimately denied.

Brad testified that he was told that Jami and Joe did not want Candy, Brad's wife, on Joe's property. He further testified that there was one incident where Candy went to the gas station to pick up A.S. for Brad's scheduled visit, and Joe would not release A.S. to Candy. Joe said that Jami told him to release A.S. to Brad only. Brad testified that Jami never told him that she did not want anyone else to pick up A.S.

Brad did not want the exchanges changed to Joe's driveway because it would probably result in another order of protection against him and more lost time with A.S. Brad testified that he heard "through the courts" that Jami did not have a vehicle, but she did not speak to him about the situation. He has not been able to have his court-scheduled visitation since October 31, 2002, and A.S. had not called him. He admitted that he did not call her because "[c]alling her just causes problems." Candy testified that she is employed by Wellness Center and works evenings "a lot of the times." She and Brad have a five-month-old daughter. Candy testified that she has a very good relationship with A.S. She loves A.S. When asked how she felt about fostering a relationship between A.S. ...


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