Alisia Denese Rose v. Eric Jackson
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REL: 10/16/2009 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter o f Decisions, Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2009-2010 2071057 A l i s i a Denese Rose v. Eric Jackson Appeal from Montgomery C i r c u i t Court (DR-06-1146) PITTMAN, Judge. Alisia modifying divorced Denese Rose ("the mother") a p p e a l s f r o m a judgment the child-custody h e r from E r i c provisions Jackson o f t h e judgment ("the f a t h e r " ) . that The mother 2071057 contends that the t r i a l parties' child court erred i n awarding custody to the father. Apparently, t h e p a r t i e s were d i v o r c e d by a judgment i n c o r p o r a t e d a n a g r e e m e n t o f t h e p a r t i e s a n d t h a t was on April 30, 2007. Four pleading asking the t r i a l of court of the father f o r having parties' sought divorce sanctions of father. Subsequently, pleading i n w h i c h he seeking of the court 3, 2008. The the against of requested In the were hearing, of denied only a pleading, an the including mother, the child an judgment, of the ore in child father's father and the t r i a l 2 specifically proceeding schedule; filed. mother on filed and a request untimely the custody the mother visitation been the child. tenus support to amendment t o h i s the hearing, as h a v i n g Following that proceeding, filed certain provisions that filed divorce day b e f o r e the entered a modification of the conducted the father the p a r t i e s ' the father f o r an i n c r e a s e modification requests judgment. parties' trial the t o comply w i t h an a w a r d o f p h y s i c a l c u s t o d y a request a later, that court t o f i n d the mother i n contempt awarding custody The April months failed sanction provisions of the for her During testified. c o u r t awarded the f a t h e r 2071057 custody of the child and awarded visitation. The mother filed a timely The entering mother contends that judgment a first awarding the custody, a custody modification forth in applied. Ex parte She asserts support the trial McLendon, that court's mother the trial which So. 2d was court the the physical 8 63 (Ala. set 1 984), evidence change i n i n t e r e s t and the benefits more the inherently See McLendon, The had evidence violated Start, schedule, the in and at adduced at parties' failing The change would to trial indicated that return follow reasons uprooting offset [her]." 865. divorce to than that on an for judgment in the a number of to preschool at the child the stipulated automobile each of mother visitation lease-purchase those violations, disputed. father mother's 2d in defaulting however, were the So. in failing arrangement. The requested d i s r u p t i v e e f f e c t c a u s e d by 455 particulars: Head the to custody would m a t e r i a l l y promote the [ c h i l d ' s ] b e s t of in standard insufficient finding "that erred primary to 455 standard appeal. father as there the testified failure to that he follow 3 had been very a l l the unhappy conditions of with their 2071057 divorce judgment. he h a d f i l e d The f a t h e r a l s o s t a t e d t h a t t h e o n l y t h e c o n t e m p t a c t i o n was to force t r e a t i n g him b e t t e r v i s - ^ a - v i s v i s i t a t i o n . did not return Head Start judgment, divorce to she did Development out that he stated to process in that The Start the was mother stated that magnet-school to begin the c h i l d program evidence established preschool and kindergarten child's had that had been these affected The f a t h e r a l s o t e s t i f i e d t h a t credit parties' on a divorce conflicting, vehicle that she judgment. the mother 4 into school to a facts 2008, the a local year. The magnet-school indicates i n any that the manner. the mother had i n j u r e d h i s had been Although admitted paperwork i n the f a l l ; r a t i n g b y d e f a u l t i n g on a m o t o r - v e h i c l e agreement admitted had e s s e n t i a l l y c o m p l e t e d admitted of filled in April admitted 2008-2009 the c h i l d been school had been f o r the c l a s s ; none welfare public Childhood father t h e Head child parties' the father Moreover, by the time of the h e a r i n g ready the Early himself. child into Although the OIC p a p e r w o r k f o r OIC. never attempted the mother directed attend C e n t e r ; the mother the appropriate as reason that the her lease-purchase awarded in testimony annual salary the was had 2071057 d e c r e a s e d f r o m $ 3 0 , 0 0 0 t o $ 1 8 , 0 0 0 and to make t h e trial, to she monthly payments was The the father not lease-purchase welfare; to the in fact, he had At pertinent that would limits indicate that agreement had a f f o r d t o buy been schedule vehicle within did the she vehicle. the negotiating with e s t a b l i s h a payment owed on on that the surrounded the m o t h e r had debt income. on the leased of company default the a f t e r the time monthly affected we the note that mother's most of failure the to the child's been vehicle i n the p a r t i e s ' d i v o r c e admitted during the problems with seeking 8 hearing visitation c u s t o d y of the ( A l a . C i v . App. mother in that relationship and since child. able had the he had court v i s i t a t i o n attempts, the t r i a l the court 5 the visitation The p a r t i e s had filed had his Akers, the father not any pleading 793 stated that interfered with hindered testimony judgment. I n K e l l e y v. 2001), t h i s case had had that father's follow s c h e d u l e s e t out the her unable repossessed. Finally, 821, satisfy way that a used v e h i c l e the finance mother's i n any testified of been So. 2d although parent-child noncustodial parent's c o u l d not p r o p e r l y modify 2071057 custody Vick, s o l e l y on 688 So. 2d Moreover, 293 is 852, basis. 856 App. conflicting court's this testimony, of c o n f l i c t i n g testimony. is or which question requires court's an on See the father's parties' visitation the mother to Moreover, The by a f f e c t i n g the had the ore are the one the at of evidence tenus that 302. rule, a correct, trial has no as in Just primarily violated the from Head S t a r t . satisfy father the the uphold addressed the manner father actions may there mother child McLendon. 2d t h a t when presume 2d So. 991 a l s o a l l e g e d that the removing the fail Brooks, court law, to v. affected his c r e d i t r a t i n g i n a negative improperly that So. he Vick 1997). i t r e l i e s on facts testimony disputes; also H o w e v e r , when t h e court 991 see noted this of disputed Brooks, Brooks, and i s one appellate findings application. had App. j u d g m e n t o n l y i n s o f a r as the 827; court versions clear at c a s e , B r o o k s v. 2008), disputed Id. (Ala. Civ. i n a recent (Ala. Civ. trial that mother father the father's failed had did to child's welfare had 6 show judgment Those a s s e r t i o n s burden under e s t a b l i s h how affected not divorce any by by the Ex parte of those the child's welfare. that material changes occurred since the original 2071057 a w a r d o f c u s t o d y , n o r d i d he d e m o n s t r a t e brought about by a change i n c u s t o d y the d i s r u p t i v e the reasons the standard cited the would more of uprooting the child. by t h e t r i a l set forth i n Ex of custody modification Based effect how t h e p o s i t i v e than i n this McLendon offset Thus, none o f court are s u f f i c i e n t parte to to modification meet support a case. u p o n t h e e v i d e n c e o f r e c o r d , we m u s t c o n c l u d e custody good i n this case i s plainly that erroneous; t h u s , we r e v e r s e t h e j u d g m e n t m o d i f y i n g c u s t o d y a n d r e m a n d t h e cause to the t r i a l R E V E R S E D AND Thompson, court. REMANDED. P.J., and Bryan, concur. 7 Thomas, and Moore, J J . ,
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