REL: 01/20/2012
Notice: This opinion is subject to formal revision before publication in the advance
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2011-2012
_________________________
2100951
_________________________
Robert Kilgore, Jr.
v.
Kimberly P. Kilgore
Appeal from Limestone Circuit Court
(DR-09-396.01)
THOMAS, Judge.
Robert
judgment
of
Kilgore,
the
counterpetition
Jr.
("the
Limestone
for
a
father"),
Circuit
modification
appeals
Court
of
from
granting
custody
filed
a
the
by
2100951
Kimberly P. Kilgore ("the mother") and awarding the mother
sole physical custody of the parties' daughter ("the child").
The parties were divorced in November 2009.
Pursuant to
a settlement agreement entered into by the parties, the
divorce judgment awarded the parties joint physical and legal
custody of the child, with the parties alternating physical
custody weekly on a Wednesday to Wednesday schedule.
On June
27, 2010, the father filed a motion for contempt and a
petition for a modification of custody seeking sole physical
custody of the child and alleging that the mother had been
entertaining overnight visitors of the opposite sex that she
had met on the Internet.
The father filed a motion for
pendente lite custody of the child on September 27, 2010,
which the trial court granted on October 29, 2010.1
On November 2, 2010, the mother answered the father's
petition for a modification of custody and the motion for
contempt and counterpetitioned for a modification of custody,
seeking sole physical custody of the child and child support.
In her counterpetition, the mother alleged that she had become
1
The mother failed to answer the father's motion for
pendente lite custody of the child or to appear at the
pendente lite hearing.
2
2100951
primarily responsible for the child's care because, she said,
the father's work schedule required him to deliver the child
to her house several mornings per week during his custodial
periods, which, she asserted, was interfering with the child's
"emotional well being and her ability to benefit from school."
Additionally, that same day, the mother filed a motion to set
aside the pendente lite custody award of the child to the
father, because, she said, she had not been served with notice
of the pendente lite hearing.
The trial court initially
denied the mother's motion to set aside the pendente lite
custody award on November 8, 2010; however, on December 1,
2010, after conducting a hearing on the mother's motion to set
aside the pendente lite custody order, the trial court set
aside that order.
The trial court conducted an ore tenus hearing regarding
the parties' petitions for modification of custody and the
father's motion for contempt.
The mother testified that the
father lived in Ardmore, Tennessee, in a home about two-and-ahalf to three miles from her residence and that, during his
custodial periods, he had been delivering the child to her
home around 4 a.m. two to three days per week since the
3
2100951
divorce in November 2009.
The mother further testified that
the father had stopped delivering the child to her home in the
early
morning
hours
since
he
had
had
his
brother
and
subsequently his mother ("the paternal grandmother") move into
his residence to assist with the child during his weekly
custodial periods. The mother testified that she did not care
for the paternal grandmother because, she said, she had
witnessed the paternal grandmother "scream" at her other
grandchild and that the father had stated to her during the
parties' marriage that the paternal grandmother took pills.
She further testified that she did not want the child around
the paternal grandmother, but she did not state any specific
reason why the paternal grandmother would not be an adequate
caretaker for the child.
The mother testified that she had not had overnight
visitors during the time the child was in her custody.
She
further testified that Stacy Cooper, her current boyfriend,
had a good relationship with the child. Cooper testified that
the he had never stayed overnight at the mother's house when
the child was present and that the child and the mother had
never stayed overnight at his residence.
4
Tony Culberson, a
2100951
private investigator, testified that the father had hired him
and that, during his six-month investigation, he had not
witnessed any overnight visitors at the mother's residence.
The father testified that he had been employed at a plant
in Decatur for 10 or 11 years and that he worked 40 hours per
week and roughly 60 or 70 hours per week during "shutdowns,"
which, he said, occur about 4 weeks per year.
He testified
that, during his custodial periods, he had delivered the child
to the mother's house two to three days per week in the early
morning hours before having his brother and then the paternal
grandmother move into his residence to assist him in caring
for the child.
The father testified that the one-week joint-
physical-custody
arrangement
generally
works
but
that
"[b]ecause of holidays and other issues, [the parties] have to
work around things to make it work for both [parties]."
The paternal grandmother testified that she had a good
relationship with the child, although, she said, she had just
become "close" with the child in the time since she had moved
into the father's home.
She testified that the child is "a
little quiet" after returning to the father's home after an
exchange of custody.
5
2100951
The
only
additional
witness
to
testify
Thompson, the child's preschool teacher.
was
Jaquata
She testified that
she knew the mother and the father and that she had had equal
contact with the parties.
On May 25, 2011, the trial court entered a judgment
finding that a change in circumstances had occurred, awarding
the mother sole physical custody of the child, awarding the
father
visitation,
and
denying
the
father's
motion
for
contempt. In its judgment, the trial court awarded the mother
monthly child support in the amount of $597.
The
mother
filed
a
postjudgment
motion
styled
as
"Motion to Reconsider Child Support" on June 22, 2011.
a
On
June 27, 2011, the father filed a motion asking the trial
court to alter, amend, or vacate its judgment. In response to
the father's postjudgment motion, the mother filed a motion to
dismiss the motion as untimely.
The father's postjudgment
motion was untimely because his motion was filed more than 30
days from the entry of the final judgment. See Rule 59(e),
Ala. R. Civ. P.
Subsequently, the father filed a timely
notice of appeal to this court on July 6, 2011.
postjudgment
motion
was
denied
6
by
operation
The mother's
of
law
on
2100951
September 20, 2011, see Rule 59.1, Ala. R. Civ. P., and the
father's notice of appeal, which had been held in abeyance
pending a ruling on the mother's postjudgment motion, became
effective on that date. See Rule 4(a)(5), Ala. R. App. P.2
We review the father's claim that the trial court erred
in finding a change in circumstances and modifying custody of
the
child
after
hearing
ore
following standard of review.
tenus
testimony
under
the
"'[W]hen a trial court hears
ore tenus testimony, its findings on disputed facts are
presumed correct and its judgment based on those findings will
not be reversed unless the judgment is palpably erroneous or
manifestly unjust.'" Fadalla v. Fadalla, 929 So. 2d 429, 433
(Ala. 2005) (quoting Philpot v. State, 843 So. 2d 122, 125
(Ala. 2002)). "This presumption is based on the trial court's
unique position to directly observe the witnesses and to
2
The record indicates that on July 8, 2011, the trial
court set a hearing regarding the mother's postjudgment motion
for July 22, 2011. However, the record does not contain any
order ruling on the postjudgment motion; thus, we conclude
that the trial court failed to rule on that motion and that it
was denied by operation of law. The record indicates that the
father filed an "amended notice of appeal" on July 28, 2011.
That notice of appeal was merely duplicative because the
father's July 6, 2011, notice of appeal, which was timely, was
held in abeyance under Rule 4(a)(5).
7
2100951
assess their demeanor and credibility." Ex parte Fann, 810 So.
2d 631, 633 (Ala. 2001).
"'"[T]he trial court is in the better position
to consider all of the evidence, as well as the many
inferences that may be drawn from that evidence, and
to decide the issue of custody."' Ex parte Patronas,
693 So. 2d 473, 475 (Ala. 1997) (quoting Ex parte
Bryowsky, 676 So. 2d [1322] at 1326 [(Ala. 1996)]).
'Thus, appellate review of a judgment modifying
custody when the evidence was presented ore tenus is
limited to determining whether there was sufficient
evidence to support the trial court's judgment.'
Cheek v. Dyess, 1 So. 3d 1025, 1029 (Ala. Civ. App.
2007) (citing Ex parte Patronas)(emphasis added).
Under the ore tenus rule, where the conclusion of
the trial court is so opposed to the weight of the
evidence that the variable factors of a witness's
demeanor and credibility and the inferences that can
be drawn from the evidence, even after considering
those factors, '"'could not reasonably substantiate
it, then the conclusion is clearly erroneous and
must be reversed.'"' Cheek, 1 So. 3d at 1029
(quoting B.J.N. v. P.D., 742 So. 2d 1270, 1274 (Ala.
Civ. App. 1999), quoting in turn Jacoby v. Bell, 370
So. 2d 278, 280 (Ala. 1979) (emphasis added))."
Ex parte Blackstock, 47 So. 3d 801, 805-06 (Ala. 2009).
On appeal, the father argues that the trial court erred
in determining that there had been a material change in
circumstances affecting the best interests of the child since
the time of the divorce such that it was in the child's best
interest to award the mother sole physical custody because, he
says, the mother failed to present evidence indicating a
8
2100951
material change in circumstances.
In essence, the father
challenges the sufficiency of the evidence.
It is well settled that
"[w]here, as in the present case, there is a
prior judgment awarding joint physical custody,
'"the best interests of the child"' standard applies
in any subsequent custody-modification proceeding.
Ex parte Johnson, 673 So. 2d 410, 413 (Ala. 1994)
(quoting Ex parte Couch, 521 So. 2d 987, 989 (Ala.
1988)). To justify a modification of a preexisting
judgment awarding custody, the petitioner must
demonstrate that there has been a material change of
circumstances since that judgment was entered and
that '"it [is] in the [child's] best interests that
the [judgment] be modified"' in the manner
requested. Nave v. Nave, 942 So. 2d 372, 376 (Ala.
Civ. App. 2005) (quoting Means v. Means, 512 So. 2d
1386, 1388 (Ala. Civ. App. 1987))."
Ex parte Blackstock, 47 So. 3d at 804-05.
In the present case, the trial court determined that
there
had
been
a
material
change
in
circumstances.
Specifically, the judgment states, in pertinent part:
"The child is now six years of age and is
experiencing some difficulties with regard to the
shared custody whereby the parties exchange the
child week to week to accomplish the Orders herein.
"....
"It is ORDERED by the Court that the best interests
of the parties' minor child is hereby determined to
be joint legal custody awarded to the parties
hereto, and sole physical custody of said minor
child is awarded to the [mother]."
9
2100951
Our review of the record convinces us that the father's
contention that the mother failed to establish that there had
been a material change in circumstances affecting the best
interests
of
the
child
is
correct.
The
only
evidence
presented at trial that supports the trial court's finding
that there had been a material change in circumstances because
the child is "experiencing difficulties" with the jointphysical-custody arrangement was the mother's and the paternal
grandmother's testimony that the child was "quiet" after the
weekly custody exchanges. Neither the mother nor the paternal
grandmother testified that the child had any other issues
regarding the parties' exercising joint physical custody, and
neither expounded on why the child's "quiet" demeanor was
unusual.
More
specifically,
in
response
to
questioning
whether the weekly custody exchanges were "hard" on the child,
the mother testified:
"I think it's hard on her. I think she enjoys being
with [the father] and being with me, but I do think
that –- I mean, it would be hard on me. And she's
six. And I mean, just the workings of her little
brain, I guess she just doesn't understand the –you know, the why behind everything because she's
six.
"And so, she just does. She just, you know, knows
that me and daddy have to share her and this is the
10
2100951
way things are. But I do think, you know, it just
takes –- I'm sure she has to get readjusted to [the
father's] house the same way she gets readjusted to
my house. Whenever she comes from his house, you
know, she's quiet, like she had testified earlier
to. That, you know, if you ask, you know, what did
you do at [the father's] house she's just kind of
quiet and, you know, like she doesn't want to talk
about it. So I don't press her."
The mother's testimony is speculative at best.
Further,
the mere mention of behavior such as being "quiet" after a
custody exchange and having to readjust to each parent's
house, which are natural occurrences following a divorce,
without more specific explanation does not indicate that the
arrangement
is
disruptive
or
that
the
child
is
"having
difficulties."
In Watters v. Watters, 918 So. 2d 913 (Ala. Civ. App.
2005), this court reversed a judgment of the trial court by
determining that the evidence failed to indicate that there
had been a material change in circumstances warranting a
change in the parties' mutually agreed upon joint custodial
arrangement.
In Watters, the mother testified that she
thought the week-to-week custody arrangement was disruptive to
the child and that she had noticed behavioral problems in the
child since the divorce, but the mother failed to specifically
11
2100951
state what behavioral issues the child had been exhibiting.
Id. at 915.
Like the mother in Watters, the mother in this case
failed to specifically state any reason why the agreed-upon
joint-custody agreement was disruptive and testified only
generally that the joint-physical-custody arrangement was
"hard on the child" and that the child was "quiet" and had to
"readjust"
after
the
exchanges.
Moreover,
in
her
counterpetition for a modification of custody, the mother
alleged that there had been a change in circumstances because
the father had been delivering the child to the mother's house
in
the
early
morning
hours,
which,
she
contended,
was
interfering with the child's "emotional well being and her
ability to benefit from school."
However, the mother and the
father testified that the father had ceased delivering the
child
to
the
mother's
house
months
before
the
hearing.
Additionally, the record is devoid of any evidence indicating
that the custody exchanges
being.
were affecting the child's well-
Thus, we conclude that the mother failed to meet her
burden of proving that a change in circumstances affecting the
child's best interests had occurred since the time of the
12
2100951
divorce sufficient to warrant a modification of custody in
this case. Means v. Means, 512 So. 2d 1386, 1388 (Ala. Civ.
App. 1987).
In her appellate brief, the mother contends that this
court cannot reverse the judgment of the trial court because,
she says, the father invited any error by the trial court in
modifying custody by initiating the proceedings by filing a
petition for a modification of custody "conceding that the
joint custody arrangement was not working."
without merit.
This argument is
The father's petition for a modification of
custody alleged that, during her custodial periods, the mother
had been entertaining overnight visitors of the opposite sex
whom she had met on the Internet.
The evidence presented at
the hearing did not support the father's contention, and,
thus, the fact that the father had filed a petition for a
modification of custody on a completely separate ground than
the grounds asserted in the mother's counterpetition cannot be
considered a basis for holding that the father's actions
invited any error.
Additionally, in her appellate brief the mother argues
that there has been a material change in circumstances as a
13
2100951
matter of law because, she says, the father relocated to the
state of Tennessee after the entry of the divorce judgment.
We note that the mother is correct in stating that, pursuant
to § 30-3-169.4, Ala. Code 1975, "a change in the principal
residence of the child is 'presumed not to be in the best
interest of [the] child [and] is necessarily a material
change' when that relocation is to a location that is more
than 60 miles away or across state lines."
McElheny v.
Peplinski, 66 So. 3d 274, 281 (Ala. Civ. App. 2010) (quoting
Marsh v. Smith, 37 So. 3d 174, 178 (Ala. Civ. App. 2009)).
However, the mother failed to argue, or to present evidence to
the trial court indicating, that the father's relocation to
Tennessee was a ground for finding a material change in
circumstances affecting the best interests of the child.
The
evidence indicated only that the father resided in Tennessee
at the time of the hearing; the record contains no testimony
establishing that the father had moved to Tennessee after the
entry
of
the
divorce
judgment,
and
the
only
testimony
presented regarding any move by either party established that
the mother had moved two times since the entry of the divorce
judgment.
Because the mother failed to argue that the father
14
2100951
had relocated to a different state and failed to present
evidence indicating that he had relocated since the entry of
the divorce judgment, we cannot consider the father's alleged
relocation to Tennessee as a ground supporting the trial
court's finding that a material change in circumstances had
occurred since the time of the parties' divorce.
Accordingly, because we conclude that the mother failed
to present evidence indicating that "a change in circumstances
ha[d] occurred such that it was in the child's best interests
that the [judgment] be modified to transfer [sole] physical
custody,"
Means, 512 So. 2d at 1388, we reverse the judgment
of the trial court granting the mother's counterpetition for
a
modification
of
custody
and
awarding
the
mother
sole
physical custody of the child, and we remand this cause to the
trial court for entry of a judgment consistent with this
opinion.
We deny both the mother's and the father's request for an
award of attorney fees on appeal.
REVERSED AND REMANDED.
Thompson, P.J., and Pittman and Bryan, JJ., concur.
Moore, J., concurs in the result, without writing.
15
