C.D.K.S. v. K.W.K.
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REL: 12/18/2009 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 2071115 C.D.K.S. v. K.W.K. Appeal from Montgomery C i r c u i t Court (DR-01-90.02) PER C U R I A M . C.D.K.S. ( " t h e m o t h e r " ) a p p e a l s the provisions transferring father"). of custody a January from a judgment 2002 divorce modifying judgment o f J o . K . ( " t h e c h i l d " ) t o K.W.K. by ("the 2071115 The mother divorce judgment another c h i l d during the other of After 2007, who court the order findings and to trial of court the review stated child the case to on for Ja.K., the father father responded by, born seeking of the physical parties' among custody marriage. a l l the other i s s u e s between an tenus hearing ore that seeking trial custody custody in the of the i t s order father child that for December 2 0 , "a 26, of the entered numerous the child them, July custody However, of on court containing father. awarding support The 2007, the p a r t i e s ' 2002 been a d o p t e d by counterclaim 31, the had t h a t h e a r i n g , the July unconditionally would been concluding transferred custody had father's on modify postminority conducted Following to a counterclaim parties resolved on child. the obtain o f t h e m o t h e r who child, the a petition p a r t i e s ' marriage. trial page to things, filing the the filed a factual should rather to the i t would trial be than father, transfer period" 2007, "for the purpose of determining whether or not a c a d e m i c p r o g r e s s has b e e n a c h i e v e d and w h e t h e r o r not [the c h i l d ] is adjusting to life in [the] f a t h e r ' s household. Subsequent to the h e a r i n g on December 2 0 , the C o u r t w i l l e n t e r a f i n a l O r d e r i n this matter." 2 13- and 2071115 The trial child c o u r t f u r t h e r awarded the mother v i s i t a t i o n w i t h and child ordered the mother t o pay alteration request, of the October 25, the motions July trial 31, court 2007. Before C u s t o d y " i n w h i c h she returned to her seeking 2007, set however, the mother f i l e d an the motions for a hearing hearing arising out of a c t s terminated the woman 20-year-old and, hearing the father case on publicity the matter subsequently to entered The the report an on place, been child should first-degree sexual concern f a t h e r would a guardian his order ad father court abuse had a been conducted an During sealed the the litem c a n c e l i n g the 3 that harm findings. and committed with the trial of arrested i n d i c a t e d t h a t i t had mother's also appointed and had f u r t h e r , that court the surrounding court of the f a t h e r a l l e g e d l y had trial based take on t h a t m o t i o n on O c t o b e r 3 , 2 0 0 7 . t h a t h e a r i n g , the file parties' "Emergency M o t i o n f o r T r a n s f e r from h i s employment. abbreviated could a l l e g e d that custody because and At those that a reconsideration order. c h a r g e d w i t h f i r s t - d e g r e e sodomy and trial f a t h e r $800 a m o n t h i n support. Both p a r t i e s f i l e d be the the the negative child. The to i n v e s t i g a t e The trial scheduled court October 2071115 25, 2007, h e a r i n g , i n d i c a t i n g be heard on December 20, moved f o r an e a r l i e r that a l l pending 2007, hearing, satisfaction McLendon, The hearing 455 So. trial of 2 d 863 court to February to A p r i l 3 and court granted the in effect pending The only set out in Ex parte 20, t h e December and then 2008. On against the [father] continued March motion 12, to court ordered the f i n a l school year, that continued "pending 2007-2008 litem of the c h i l d at t h a t time father's trial ad 2007, ( A l a . 1984) . later 4, would i t sintention standard 14, 2008, again proceedings. the the guardian and s t a t i n g the mother c o u l d r e g a i n custody upon unless matters the hearing 2008, stay the the trial custody t h a t t h e s t a y w o u l d be outcome of the c r i m i n a l charges or the conclusion of the child's whichever i s later." The trial court ordered the f a t h e r ' s counsel to submit a r e p o r t of the c h i l d ' s grades further at the ordered conclusion of the guardian the 2007-2008 ad l i t e m 1 school to f i l e year and a "preliminary T h e t r i a l c o u r t a p p o i n t e d a new g u a r d i a n a d l i t e m i n J a n u a r y 2008 f o l l o w i n g t h e i n c a p a c i t y o f t h e o r i g i n a l g u a r d i a n a d l i t e m , who h a d b e e n s e r i o u s l y i n j u r e d i n a m o t o r c y c l e accident. 1 4 2071115 report" containing h i s recommendations as to the custody disposition. On J u n e as submitted the c h i l d ' s grades On J u l y 1 , 2 0 0 8 , t h e g u a r d i a n ordered. court ad 4, 2 0 0 8 , t h e f a t h e r ad l i t e m moved t h e to set a status l i t e m submitted custody litem High hearing. to the t r i a l recommendations. noted that School well i n counseling that the ad litem also who had regarding because guardian with that he attention the father's opinion the of and t h a t the child who be the father i n Helena. was "fine" the ad might then-upcoming 5 The with be by guardian the c h i l d , living concerns subjected criminal was opined served ad l i t e m e x p r e s s e d child Paine. had i n h i s current to trial, the the c h i l d stay of the c h i l d and that d e f e r r i n g to the statement o f Dr. guardian the c h i l d would ad l i t e m u l t i m a t e l y recommended the father, containing his Dr. Henry P a i n e , Although the guardian the of report, i n d i c a t e d t h a t he h a d c o n s u l t e d indicated situation. the placement with that a report semester with interests court guardian h a d made a l l A ' s a n d B's a t P e l h a m the past doing continuing In the c h i l d during best On J u l y 3, 2 0 0 8 , t h e 2071115 On the July 18, temporary order 2008, t h e t r i a l report in so t h a t court the custody granted that entered final ad l i t e m t h a t mother judgment. findings On timely appeal, court p a l p a b l y wrong, custody appealed the the trial support On J u l y 2 9 , court erred from the doing opined the argues set forth 31, 2007, July the c h i l d in (1) that from (5) t h a t McLendon, compelling h i s brother, amount the t r i a l trial court erred child, i n s e a l i n g the court 6 and file. that child court erred order the (4) of in of and sufficient r e q u i r i n g t h e m o t h e r t o meet t h e Ex p a r t e M c L e n d o n custody which are p l a i n l y i n Ex p a r t e c a l c u l a t i n g the 2008, multiple in regain order 29, f a i l e d t o s t a t e any awarded t o the f a t h e r , to and i t to the f a t h e r . on J u l y 2 9 , 2 0 0 8 , court well i ni t s necessary, (2) t h a t t h e f a t h e r d i d n o t p r e s e n t for separating finalize i n t h e J u l y 31, 2007, o r d e r , made f i n a l (3) t h a t t h e t r i a l reasons to was court were from mother e v i d e n c e t o meet t h e s t a n d a r d supra, trial making the J u l y awarding of f a c t contained trial The the c h i l d further proceedings judgment a motion a judgment d e t e r m i n i n g of the f a t h e r . no filed i t c o u l d be a p p e a l e d . the mother's motion, The the the mother of the guardian judgment its 2008, (6) standard that the 2071115 We address modification the mother's arguments r e l a t i n g first. The parties agree d i v o r c e judgment awarded them j o i n t and to the custody t h a t the p a r t i e s ' 2002 l e g a l custody of the awarded the mother p r i m a r y p h y s i c a l custody of the child child. 2 "In s i t u a t i o n s i n which the p a r e n t s have j o i n t l e g a l custody, but a p r e v i o u s j u d i c i a l d e t e r m i n a t i o n h a s g r a n t e d p r i m a r y p h y s i c a l c u s t o d y t o one p a r e n t , the o t h e r p a r e n t , i n o r d e r to o b t a i n a change i n c u s t o d y , must meet t h e b u r d e n s e t o u t i n Ex p a r t e M c L e n d o n [ , 455 So. 2d 463 ( A l a . 1 9 8 4 ) ] . See Scholl v . P a r s o n s , 655 So. 2d 1 0 6 0 , 1062 ( A l a . C i v . App. 1 9 9 5 ) . The b u r d e n s e t o u t i n M c L e n d o n r e q u i r e s t h e p a r e n t s e e k i n g a c u s t o d y change t o demonstrate that a material change i n c i r c u m s t a n c e s has occurred s i n c e the p r e v i o u s judgment, t h a t the c h i l d ' s best i n t e r e s t s w i l l be m a t e r i a l l y p r o m o t e d b y a c h a n g e o f c u s t o d y , and t h a t t h e b e n e f i t s o f t h e change w i l l more t h a n o f f s e t t h e i n h e r e n t l y d i s r u p t i v e effect resulting from the change i n custody. Ex parte M c L e n d o n , 455 So. 2 d a t 8 6 6 . " Dean v. In Dean, 998 So. 2d order to prove noncustodial parent indicating (1) circumstances that existing 1060, 1064-65 ( A l a . C i v . App. 2008). a m a t e r i a l change of c i r c u m s t a n c e s , must present there at has the time sufficient been of a the the evidence change original in the custody judgment o r t h a t f a c t s have been r e v e a l e d t h a t were unknown a t the time App. 396, 2 of t h a t judgment, 399, 255 So. 2d The d i v o r c e judgment see S t e p h e n s v. 338, 340-41 Stephens, ( C i v . App. i s not p a r t of the 7 47 1971), record. Ala. and 2071115 (2) that t h e change welfare and b e s t i n circumstances interests Ala. 7 4 3 , 310 S o . 2 d 234 not have to adversely satisfy the the f i r s t change At in parties' weight expressed with those According has b u t he o r s h e father's the the that best that, since the the entry circumstances had was had experienced hygiene and parenting of issues, the the mother had the had style, visitation, and child a t o r e s i d e w i t h t h e f a t h e r and t o a t t e n d School. regarding promotes may to the father, the c h i l d health a negative a preference findings, does of the c h i l d , judgment, associated the 293 parent s u b j e c t s , " the c h i l d The fact g e n e r a l l y support contention Ford, circumstances in materially the Id. divorce changed. with Pelham High change the father t e s t i f i e d mother had assumed interfered v. The n o n c u s t o d i a l the circumstances i n h i s core gain Ford e l e m e n t o f t h e McLendon t e s t by p r o v i n g 2002 "drastically" "failing that of the c h i l d . trial, the c h i l d . (1975). a f f e c t e d the welfare interests the prove of i s s u c h as t o a f f e c t trial court's extensive findings of a l l the father's assertions except the the mother's p a r e n t i n g trial court 8 concluded style. that a Based on "material 2071115 change in circumstances has change i n p h y s i c a l c u s t o d y The many of [the first argues that its mother making factual of academic achievement of child's academic circumstances. We mother first to The mother before been the the because further entry tested had Disorder with dyslexia, not comprehension testing, but the a the trial and reading i n concluding testified in the the change in the evidence r e l a t i n g to the a material contradiction that, for again and an the before father had year of extra without the judgment, child toward with and the part child could in response to not the that, child had that the "Attention The 9 the dyslexia. but needs. dispute, psychologist backwards, problems." regarding child's special learning clinical tendency erred that 2002 d i v o r c e diagnosed a he court back testified, of by psychologist the child. child of a [the f a t h e r ] . " constituted the necessitates child] to 2002 d i v o r c e j u d g m e n t , she hold kindergarten child consider of which determinations t e s t i f i e d without the e n t r y of the agreed the record academic performance The occurred Deficit When I say where he has recall trial that court's 2071115 questioning years o l d and At in that eyes had been that his vision was school school, he had the mother been a t t e n d i n g school. A f t e r nine informed that weeks the child's child paternal elementary-school to return to his the new was in danger school, of h i s eighth-grade the mother year, termed guidance counselor but he managed o n l y a v e r a g e by the and the school's mother Christian of for Alabama b e f o r e Academy private a grade A.K., who of had under "horrible once served a plan I n the child semester. who "regular pace" to child first The 1.0 B a s e d on school in with school's child, grade-point the t e s t i f i e d at to semester started off a an designed grades." h i s grades was as f o r the the mother attempted to help the raise from failing counselor, a child mother however, the that guidance searched southern end to still the the mother arranged school 11 After consulting with grandmother old was a l e s s expensive at principal, he c h i l d was t r a n s f e r r e d the compensate f o r h i s l e a r n i n g d i s a b i l i t y . what when "okay." to because of h i s p o o r math s c o r e s . the examined some p o i n t a f t e r t h e d i v o r c e w h i l e t h e elementary the his advice of trial, the central and d e c i d i n g to p l a c e the c h i l d i n Evangel ("Evangel"). 10 2071115 The child achieved a algebra. completed 2.2857 The he first s e m e s t e r and the second average, at Evangel at but Evangel; he failed for his for a yearly grade-point end "Algebra 1," of the ninth necessitating his i t s 2007 o r d e r , the grade, attending trial court the the end of average of first child child summer pre- of Although the mother employed a t u t o r f o r the semester he ninth-grade a 2.2857 g r a d e - p o i n t a v e r a g e a t t h e semester, second In continued grade e a r n e d a 2.4286 g r a d e - p o i n t a v e r a g e a t t h e 2.3571. the eighth grade-point child year; the in failed school. stated: "The [mother] c o n s i s t e n t l y a s s e r t e d t h a t [the child] has Attention Deficit Disorder with a tendency to Dyslexia. Confusingly, she explained t h a t t h e d y s l e x i a was n o t r e l a t e d t o c o m p r e h e n s i o n . " (Emphasis added.) That finding contradicts the mother's testimony t h a t the d y s l e x i a a f f e c t s the c h i l d ' s comprehension. The trial court then stated: "No documents were p r o d u c e d or a d m i t t e d i n t o evidence which would document any bona fide d i a g n o s i s by a p h y s i c i a n , p s y c h i a t r i s t or clinical p s y c h o l o g i s t s u c h as w o u l d s u p p o r t t h e [mother's] assertion. Nevertheless, i t is clear that [the child] struggles with some form of learning disability. The Court is troubled that no educational t e s t i n g has been done f o r t h i s child a n d , f u r t h e r , t h a t no p s y c h o l o g i c a l o r o t h e r allied t e s t i n g has b e e n done t o d e t e r m i n e t h e n a t u r e o f any such learning disability, together with 11 2071115 recommendations for connecting or managing the learning disability. 1n a d d i t i o n , [ t h e c h i l d ] has n o t u n d e r g o n e a c o m p r e h e n s i v e e y e e x a m i n a t i o n b y an ophthalmologist to determine whether or not v i s i o n problems are related to his lack of academic success. The [mother] continues to rely on i n f o r m a t i o n s e v e r a l y e a r s o l d w h i c h she supposedly o b t a i n e d f r o m Dr. R o s e m a r y Wool J o n e s , a respected c l i n i c a l p s y c h o l o g i s t i n M o n t g o m e r y . As previously s t a t e d , no d o c u m e n t s w e r e o f f e r e d i n t o e v i d e n c e t o s u p p o r t t h e [ m o t h e r ' s ] a s s e r t i o n o f an [ a t t e n t i o n deficit-disorder] diagnosis." Apparently from the use of the word "supposedly," the court d i s c r e d i t e d the mother's t e s t i m o n y t h a t she child evaluated However, Cameron, the counselor, testified and d i a g n o s e d by father's cousin testified that Dr. as dispute is the that documentation disorder medical not the however, father d i d not dispute that believed explained ADD and a l s o i n d i c a t e s t h a t the he being the the child that learning c h i l d had 12 the Edwina school guidance Cameron tested child's had father. the offer prescribed he having for had the merely long-time indeed, did ("ADD") d i a g n o s i s ; doctors Jones. such t e s t i n g had supporting Moreover, between that mother a witness J o n e s had, f a t h e r d i d not true a and Dr. had trial the child. The taken place. into evidence 1t any attention-deficitrecord shows medication the there child is disabled. a that for ADD. has ADD; difference The record passed a v i s i o n examination, 2071115 and no o n e p r e s e n t e d a n y e v i d e n c e s u g g e s t i n g learning mention trial problems may i n the record court's The trial be 1n the c h i l d ' s fact, the only of the c h i l d ' s v i s i o n r e s u l t s from the questioning court vision-related. that also of the c h i l d stated on t h a t i n i t s 2007 subject. order: "The [ f a t h e r ] e n t e r e d i n t o e v i d e n c e [ f a t h e r ' s ] E x h i b i t #14 w h i c h d o c u m e n t s [the c h i l d ' s ] grades f r o m [ E v a n g e l ] f o r s c h o o l y e a r 2 0 0 6 - 2 0 0 7 . The r e p o r t lists [ t h e c h i l d ' s ] a c a d e m i c GPA a t 2 . 3 5 7 1 , w h i c h includes grades for History, Physical Science, E n g l i s h , A l g e b r a 1, A r t , PE a n d B i b l e . The [ f a t h e r ] p o i n t e d o u t t h a t i f y o u r e m o v e A r t , PE a n d B i b l e , leaving only the core subjects, [the c h i l d ' s ] average i n h i s core subjects i s a 0.25. The [father] asserted that these grades i n the core s u b j e c t s were d e p l o r a b l e and c l e a r l y t h e c h i l d needs assistance other t h a n s i m p l y h i r i n g a t u t o r . The [ f a t h e r ] s t a t e d t h a t he d i d n o t b e l i e v e t h a t ' m a k i n g p r o g r e s s ' c o u l d b e d e f i n e d a s b r i n g i n g up a n a l g e b r a g r a d e f r o m a f a i l i n g g r a d e o f 30 t o a f a i l i n g g r a d e of 50." Actually, child in had had a the witness, that the father .25 g r a d e - p o i n t 2006-2007 school had had a However, of t h a t a l l e g e d f a c t . when c o n s i d e r i n g a t any p o i n t average year. the father's attorney the c h i l d subjects. d i d not t e s t i f y i n h i s core During that subjects questioning a s k e d i f t h e w i t n e s s was .25 g r a d e - p o i n t the witness stated average that only classes other 13 of a aware i n h i s core h e was The c h i l d ' s g r a d e r e p o r t s the n o t aware reflect that, than a r t , B i b l e Study, and 2071115 physical education, the child average in his core father did not characterize subjects as progress" algebra to merely subjects. "deplorable" "making a by grade that child to the child ever The trial court that pass the or he in 1.67 his grade-point testimony, up a 50 that in his core child the failing was not grade algebra. child and that t u t o r i n g had record i n the 30's further stated could that 30 not no evidence algebra. " [ i ] tis undisputed [ t h e c h i l d ] ... i s l e s s than s u c c e s s f u l academically" that "[t]here doubt h a r d i n an effort unfortunately, child's] failing." 3 grades that the [mother] has to assure academic success f o r despite from any efforts [Evangel] by indicate the that worked [the [mother], the court further child found: "The [mother] and h e r c u r r e n t h u s b a n d , [K.S.], b o t h t e s t i f i e d t h a t t h e y h a d i n v e s t i g a t e d some 10 h i g h s c h o o l s f o r p o s s i b l e placement of [the c h i l d ] p r i o r t o s e l e c t i n g [ E v a n g e l ] . They v i s i t e d schools in Lee C o u n t y and as f a r s o u t h as Fairhope in 14 and very child], 3 The t r i a l his enabled that i s no in father improve contains in of The the The the in felt algebra. scored a c h i l d ' s grades state of grades i n h i s core subjects the Also, pulling failing indicated carried [the is 2071115 The mother a c t u a l l y d i s p u t e d child was n o t a c a d e m i c a l l y that the c h i l d that he child's had the father's successful. had s t r u g g l e d "shined" transcript contention The m o t h e r a t times because since transferring from Envangel testified o f h i s ADD b u t to Evangel. f o r t h e 2006-07 s c h o o l does n o t i n d i c a t e t h a t t h e c h i l d f a i l e d any s u b j e c t Algebra 1. t e s t i f i e d that had "F" an transcript Although the father i n some other contradicts that that the unidentified assertion. core other subject, the 1t appears from i t s p e r f o r m i n g more p o o r l y i n school that the t r i a l failure portrays has occurred. 1n B r o o k s ( A l a . C i v . App. 2 0 0 8 ) , t h i s academic performance Baldwin may be court County and Mobile failure that academic a material change o f v. Brooks, held considered was proved. of academic i n i t s order, would not n e c e s s a r i l y prove that circumstance 293 court the evidence d i d show t h e l e v e l than had c o u r t was c o n v i n c e d t h a t t h e c h i l d Even i f t h e r e c o r d year the c h i l d findings that the t r i a l than The that 991 S o . 2 d a child's a material poor change i n schools." Actually, the father testified that when the c h i l d was experiencing p r o b l e m s i n t h e e i g h t h g r a d e , t h e m o t h e r was considering schools as f a r s o u t h as B a l d w i n and M o b i l e c o u n t i e s ; no one t e s t i f i e d t h a t t h e m o t h e r a n d h e r c u r r e n t husband had v i s i t e d those schools. 15 2071115 circumstances entry of only the i f that the entry of the record trial back" 1n court i f the child was at the them the time trial in the court those problems w i l l not original knew o f i t s custody the father did not those judgment, considered be a a court present any child at the academic p e r f o r m a n c e of the the on 2002 d i v o r c e that in point indicates kindergarten addition, the specifically judgment. because parties be borne of obviously 10 the aware p r o b l e m when i t d e c i d e d that the w o u l d be served placed mother. Consistent with use parents. of best the in in had been learning the 2002 years old, 1n 2002, child's that a o f t u t o r s whose i n t e r e s t s of hold the s u f f e r e d from the learning the child i n the p h y s i c a l custody of B r o o k s , we 16 child the of special that the was by b e i n g his time child agree found that by the evidence evidence only c h i l d was when t h e equally The that d i s a b i l i t y that necessitated would trial and for judgment, entered learning cost of case, the divorce Obviously, circumstances. this needs. entered accounted regarding "left the difficulties mere c o n t i n u a t i o n 1n after learning and in arose judgment. c u s t o d y j u d g m e n t was change performance original experiencing problems poor the trial the court 2071115 erred by c o n s i d e r i n g child t o be a material change o f custody. to retry the continued change l e a r n i n g problems i n circumstance That e r r o r l e d the t r i a l the issue of which parent a d d r e s s t h e e d u c a t i o n a l needs o f t h e c h i l d decided i n favor o f t h e mother warranting court would of the best a essentially be s u i t e d t o -- a n i s s u e i n the parties' 2002 already divorce judgment. The mother next findings regarding must c o n s i d e r argues that the wishes the wishes order, 3 6 1 S o . 2 d 17 the t r i a l court court of the child. of a c h i l d m a t e r i a l change i n c i r c u m s t a n c e s Sherrod, the t r i a l A erred i ni t s trial court i n determining has o c c u r r e d . ( A l a . C i v . A p p . 1978 ) . found t h a t , during whether a See S h e r r o d 1n i t s 2 0 0 7 the t r i a l , the c h i l d had made a " f o r t h r i g h t s t a t e m e n t t h a t h e w i s h e s t o r e s i d e the father." testified father. same l i n e Upon q u e s t i o n i n g at trial court, with the child t h a t he " k i n d o f " w a n t e d t o l i v e w i t h t h e However, t h e c h i l d of questioning "THE COURT: dad a t r y ? by t h e t r i a l v. subsequently t e s t i f i e d during the as f o l l o w s : And you want t o give living with your "[THE C H I L D ] : Y e s . 1 mean, l i k e r e a l l y i f 1 h a d t o c h o o s e , 1 w o u l d c h o o s e t o g o l i v e i n T r o y w i t h my grandmother because t h e n i t w o u l d n ' t be they 17 2071115 wouldn't t h e y w o u l d n ' t b e f i g h t i n g o v e r who 1 s t a y w i t h . And, 1 mean, 1 c o u l d do t h e t h i n g w h e r e 1 s e e h e r one w e e k a n d h i m t h e o t h e r w e e k . " During the the trial, c h i l d had the trial court a c t u a l l y acknowledged expressed a preference grandmother. Nevertheless, the to l i v e with h i s trial court, that paternal without any e v i d e n t i a r y b a s i s , found that "apparently [the c h i l d ] has told anyone to [the who father]." would listen that wants ore tenus r u l e , a t r i a l of f a c t f o l l o w i n g a t r i a l presumed the (Ala. to a be correct. judgment evidence. 2007). wishes as with based one custody of the See court's findings at which o r a l testimony i s taken However, on an findings appellate that p a l p a b l y wrong, c l e a r l y e r r o n e o u s , or a g a i n s t of live 4 Pursuant to the reverse he F r i e d m a n v. 1n this case, the of i t s primary c h i l d to the Friedman, trial court considerations father. court can plainly are and the great 971 are So. cited 2d the weight 23, 28 child's for transferring Because the trial court's The f a t h e r d i d t e s t i f y t h a t the c h i l d had told him c o n s i s t e n t l y t h a t he w a n t e d t o r e s i d e w i t h t h e f a t h e r . The r e c o r d a l s o i m p l i e s t h a t the c h i l d had i n d i c a t e d t o the mother t h a t he w a n t e d t o r e s i d e w i t h t h e f a t h e r . H o w e v e r , t h e r e c o r d contains no evidence indicating that the c h i l d had told " a n y o n e who w o u l d l i s t e n " t h a t he w a n t e d t o l i v e w i t h the father. 4 18 2071115 finding as t o t h e c h i l d ' s evidence, is t h e judgment, based due t o be The on material trial next change interfered with the t r i a l visitation the v i s i t a t i o n exhibits showing plans exceptions, coinciding requesting problems Those dinners hosted specifically 1n i t s 2 0 0 7 of the father that point, the t r i a l made b y t h e m o t h e r notifying with the father the father's events, by which others, to interfere instance, order to i n find order, a the "throughout the court referred to f o rthe c h i l d t o stay t h e mother home t o s e t up included social visitation obviously with h i s room the father scheduled i n their 19 were the father's notified for a dances, parties, not visitation new home. and those and scheduled visitation. that a testimony o f upcoming weekend that With only the father t o arrange for the c h i l d t o attend events. wanted erred those e x h i b i t s bear out t h e mother's s h e was m e r e l y events finding, court on t h e weekends o f t h e f a t h e r ' s v i s i t a t i o n . that one on t h a t by t h e c i t e d evidence t h a t t h e mother had " c o n s i s t e n t l y " To i l l u s t r a t e few that i n circumstances. years." fell i n large part argues unsubstantiated court i s not supported reversed. mother relying testimony 1n the child weekend i n On another 2071115 occasion, schedule the mother conflicted instances, the visitation notified with schedule with the trial assure or that her vacation visitation. offered the court also father referred to supposedly u n i l a t e r a l l y visitation 4, scheduled requested to father to did 1n both rearrange not lose the time child. The mother mother his the 2003, in pertinent e x h i b i t i n which changed and on W e d n e s d a y n i g h t s . states, an denied That e x h i b i t , the the father d a t e d November part: "Until [the c h i l d and his brother's] grades i m p r o v e we n e e d t o t a k e t h e s c h o o l n i g h t sleepovers on a w e e k b y w e e k b a s i s d e p e n d i n g on t h e h o m e w o r k , special projects, extra curricular activities and test schedules. T h i s was the recommendation of a l l t h r e e o f [ t h e c h i l d ' s ] t e a c h e r s . ... You a r e w e l c o m e t o g e t t h e k i d s on e x t r a w e e k e n d s , i f y o u w a n t , o r on some s c h o o l h o l i d a y s t o make up t h e t i m e y o u ' v e m i s s e d . 1 t ' s up t o you." The parties provide 1n the the that father with addition, notifying let agree the the reside The t r i a l court "[d]espite her 5 any 2002 divorce midweek trial f a t h e r on child the court criticized 16, 2006, t h a t with the father stated insistence 20 did not mother for visitation. May also judgment for she a the would agree "trial period" that, that in order for to [the 5 2071115 from June 1, 2006, through July 9, 2006. The trial court stated: "The [ f a t h e r ] i s a 26-year veteran of the Department o f P u b l i c S a f e t y and, as s u c h , has a s s i g n m e n t s t h a t a r e s c h e d u l e d t h a t c a n n o t e a s i l y be c h a n g e d . His wife ... i s an e m p l o y e e o f t h e F e d e r a l B u r e a u o f 1 n v e s t i g a t i o n . A n d a l t h o u g h t h e r e was no t e s t i m o n y from her, i t i s l o g i c a l t h a t she too would have a s s i g n m e n t s t h a t c o u l d n o t be d r o p p e d o r changed w i t h a two-week n o t i c e . W h i l e t h e [mother] a p p e a r s t o be w i l l i n g t o s e n d [ t h e c h i l d ] t o l i v e w i t h h i s f a t h e r , i n a c t u a l i t y , t h e p l a n as e s t a b l i s h e d by t h e [ m o t h e r ] was s e t up t o f a i l . (See [the father's] E x h i b i t #29)." The father because he because of testified itself the was a going father's wife he out conflicting noted, the visitation that record of r e j e c t e d the town work no mother's that As the because of the record does not introduced the father. The trial offer period, trial not court evidence i n d i c a t i n g that comply w i t h the mother's Furthermore, by during schedule. contains c o u l d not schedule had suggested employment obligations. contain "Exhibit 29" also noted that the court an child] to reside with [ t h e ] f a t h e r he m u s t h a v e a t r i a l period, the [mother] d i d not have a trial period three y e a r s ago when she m a r r i e d her new h u s b a n d a n d m o v e d [ t h e c h i l d ] i n t o t h e same r o o m with ... her new husband's son, o f whom he had custody." The record contains no evidence 21 to support that finding. 2071115 f a t h e r had taken steps to enroll P e l h a m i n 2007 b u t t h a t child to reside with enrolling provided during i n a private only the extent visitation divorce the t r i a l beyond that judgment court periods amounted to the t r i a l court supreme recently decided court no l e g a l visitation child. 2008). mother's visitation of sufficient alleged i n judgment visitation 1n C o c h r a n , s u p r a , parties' amounted court of 2002 change i n as a m a t t e r o f law. Our a custodial voluntary of such parent i s supplemental visitation custody does of a 5 So. 3d 1220, 1228-29 ( A l a . the t r i a l the t r i a l the the denial grounds to t r a n s f e r to court concluded with interference schedule that material that the termination the extent circumstances, a erred See C o c h r a n v . C o c h r a n , To i n o b l i g a t i o n to continue and t h a t constitute found established circumstances, not organization t h e 2002 d i v o r c e two two-week instead t h e summer. To under to allow the t h e summer," tutoring The p a r t i e s a g r e e t h a t the father i n summer s c h o o l i n the mother had "refused [the]father during the child Montgomery. the child the a material also erred that the court-ordered change as a m a t t e r in of law. t h e supreme c o u r t h e l d t h a t m o d i f i c a t i o n o f 22 2071115 custody i s not disputes. 515 So. Smith, Cochran, 2d relied So. on the 1260 2d mother 97, next indicated "gained t h a t the 50 1987), and court Smith hygiene problems 1n i t s j u d g m e n t , t h e t h a t the pounds year's g a i n , and there are hygiene within a directly issues related " h e a l t h i s s u e s were a l a c k v. erroneously f a t h e r contended high blood pressure Carden, 1984)). trial h e a l t h and of the c h i l d . approximately "Other App. t h a t the alleged visitation ( c i t i n g F o s t e r v. ( A l a . C i v . App. developed stated: resolve simple (Ala. Civ. 100 child's to 3 d a t 1228 argues t r a n s f e r r i n g custody court remedy 5 So. 1258, 464 The a proper trial child time, to the in had ha[d] weight The trial court also of cleanliness. The [ f a t h e r ] was concerned about u n c l e a n f i n g e r n a i l s and toenails, g r o o m i n g and t h a t the child and/or orthodontist." approximately The 50 the other and some summarizing over "a court stated. findings c h i l d d i d develop a dentist f a t h e r t e s t i f i e d t h a t the c h i l d had pounds y e a r , as t h e t r i a l needed t o see of the trial couple of years," However, the r e c o r d c o u r t on these evidence, including the mother's own the o p i n i o n of the c h i l d ' s p e d i a t r i c i a n , 23 gained not one supports issues. e l e v a t e d blood pressure i n the f a l l an of The 2006, testimony indicates 2071115 that the c h i l d ' s weight had trial court pressure did specifically problem child's had the court's but should future health problems. child, unclean, h i s weight but who the r e g u l a r l y took father did testify i t also blood- be The monitored mother and disputes two showers per day, as s e t out i n the was trial findings. However, we cannot accuracy of the t r i a l affirm court's the judgment findings 1n i t s j u d g m e n t , indicated not that i t had relied a l s o on t h e c h i l d ' s a c a d e m i c and t h e v i s i t a t i o n d i s p u t e s child to the f a t h e r . 6 only on performance, i n deciding Based based regarding h e a l t h and h y g i e n e p r o b l e m s . the child's of type, "rectified," the in reduced to avoid that that The found, body been find to that problem. the testimony of the f a t h e r , t h a t , because accordance with the contributed the on child's the t r i a l those the court factors, but the c h i l d ' s wishes, to t r a n s f e r custody of on o u r r e v i e w o f t h e record, 1n f a c t , i f a n y t h i n g , the judgment i m p l i e s t h a t the t r i a l c o u r t c o n s i d e r e d t h e c h i l d ' s w i s h e s and h i s academic needs t o be t h e f o r e m o s t c o n s i d e r a t i o n s f o r i t s t r a n s f e r o f c u s t o d y . The t r i a l c o u r t s t a t e d a t t h e c o n c l u s i o n o f i t s f i n d i n g s o f fact: 6 "This Court b e l i e v e s t h a t [the c h i l d ] ' s f o r t h r i g h t s t a t e m e n t t h a t he w i s h e s t o r e s i d e w i t h h i s f a t h e r , the s u p e r i o r e d u c a t i o n a l o p p o r t u n i t i e s which e x i s t 24 2071115 we conclude child's that the t r i a l academic material and performance changes custody, judgment. court erred and t h e v i s i t a t i o n i n circumstances we, therefore, We a l s o r e v e r s e justifying reverse we cannot the the disputes as change of a trial court's t h e judgment b e c a u s e i t i s b a s e d on c l e a r l y erroneous findings regarding Because i n considering conclude the wishes of the c h i l d . that the t r i a l court would h a v e r e a c h e d t h e same d e c i s i o n a b s e n t t h e e r r o r s o f l a w a n d o f fact o u t l i n e d i n our opinion, court for i t to opinion. evidence of reconsider On r e m a n d , we r e m a n d t h e c a s e t o t h e t r i a l i t s judgment the t r i a l court of the c h i l d ' s circumstances custody in July 2007 transferred custody essentially on a p e n d e n t e because, to the father lite of our i s not to consider any following the transfer when i n July basis i n light for a the trial 2007, "trial court i t d i d so period." 7 at Pelham High School, and t h e [ f a t h e r ' s ] concern and d e s i r e t o i n t e r v e n e and a s s i s t t h i s c h i l d i n r e c t i f y i n g d e f i c i e n c i e s c l e a r l y indicate that the McLendon s t a n d a r d has been met." The mother does n o t r a i s e any i s s u e regarding the p r o p r i e t y o f t h a t p r o c e d u r e , b u t o u r c a s e l a w makes i t p a t e n t l y c l e a r t h a t a t r i a l c o u r t may n o t t r a n s f e r c u s t o d y t o a p a r e n t on a " t r i a l b a s i s . " S e e B a r b e r v . M o o r e , 897 S o . 2 d 1 1 5 0 , 7 25 2071115 See Barber v. (treating compare similar Rich (plurality v. In o f two However, the 8 97 So. judgment Rich, decision) judgment). custody Moore, 2d the final. court At determined c h i l d r e n based, custody court court lite the that custody conclusion that the custody Consistent with Barber, precluded court 2004 ) order); App. judgment as awarded the Mr. Moore a final Mr. Moore the should lower 897 court 100 had days the Mr. Moore. the t r i a l So. 100 days, have 2d custody should the be be lower custody of the the pendente lite a t 1154-55. This erred in c h i l d r e n had 897 wife. hearing would determination e v i d e n c e o f how worked. of of but 2004) award of days a f t e r which a review evidence r e l a t i n g to the pendente lite (Ala. Civ. a similar indicated i n p a r t , on that 289 App. from h i s marriage to h i s former arrangement had held (Ala. Civ. pendente lower conducted to determine i f the made 1150 a (treating children w o u l d l a s t o n l y 100 as So. 8 87 Barber, lower 2d So. considering been i n 2d court i n the present from d e c i d i n g whether the McLendon s t a n d a r d at the 1155. case i s has been 1155 ( A l a . C i v . A p p . 2 0 0 4 ) ("The s u p r e m e c o u r t ' s h o l d i n g i n E x p a r t e McLendon does not a l l o w a t r i a l c o u r t t o m o d i f y custody on a t r i a l b a s i s o r , a s t h e m o t h e r a r g u e s o c c u r r e d i n t h i s c a s e , a l l o w t h e t r i a l c o u r t t o e x p e r i m e n t w i t h an a w a r d o f custody."). 26 2071115 satisfied based the o f t h e J u l y 2007 entry on e v i d e n c e related to the period following order. Our r e v e r s a l o f t h e j u d g m e n t o f t h e t r i a l custody of the child moots separation of the s i b l i n g s standard the issues therefore, we for the order did not court to vacate pretermit to relating that i t s award of c h i l d file, we at the action that time the and, t h e r e f o r e , she has n o t p r e s e r v e d review. See L o l l a r 2008); (Ala. see C i v . App. 2000) raised f o r the f i r s t Both p a r t i e s ' on v. L o l l a r , also appeal are McCoy, ( " T h i s c o u r t may on requests 777 order was that issue f o r So. 2d (Ala. C i v . 141, 143 n o t c o n s i d e r any i s s u e appeal."). f o r the award of a t t o r n e y ' s fees REMANDED. P.J., and Bryan, Thomas, concur. Pittman, the mother 991 S o . 2 d 7 5 8 , 760 v. As denied. R E V E R S E D AND Thompson, Somers time the support; issues. note entered, App. to The r e v e r s a l a l s o any d i s c u s s i o n o f t h o s e s e a l i n g the case object regarding and t h e a p p l i c a t i o n o f t h e McLendon t o the mother's emergency motion. requires the t r i a l court J . , dissents, with 27 writing. and Moore, J J . , 2071115 Pittman, Judge, Because I dissents. believe the reweighs the evidence i n t h i s Patronas, 693 Bryowsky, 67 6 respectfully So. So. 2d 473, 2d dissent. majority case, 474-75 1322, opinion impermissibly i n derogation ( A l a . 1997), 1324-26 o f Ex and ( A l a . 1996), I believe the testimony request and weight-control to " t r y " l i v i n g constitutes judgment; sufficient therefore, somewhere evidence I would judgment. 28 issues, else to support affirm and than I with must the early-onset the child's h i s mother the t r i a l the parte regarding c h i l d ' s i n c r e a s i n g academic s t r u g g l e s , the c h i l d ' s blood-pressure Ex parte trial court's court's
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