Dean v. Dean

• Citation: 998 So.2d 1060
• Decision Date: 18 January 2008
• Docket Number: 2060809.
• Parties: Lisa Dianne DEAN v. Donald Gordon DEAN.
• Court: Alabama Court of Civil Appeals

998 So.2d 1060

Lisa Dianne DEAN v. Donald Gordon DEAN.

2060809.

Court of Civil Appeals of Alabama.

January 18, 2008.

As Modified on Denial of Rehearing June 20, 2008.

Thomas H. Nolan, Jr., of Wright, Green, P.C., Mobile, for appellant.

Peter J. Palughi, Jr., Mobile, for appellee.

PITTMAN, Judge.

Lisa Dianne Dean ("the mother") appeals from a judgment of the Mobile Circuit Court granting a custody-modification petition filed by Donald Gordon Dean ("the father") and awarding him sole physical custody of the parties' child, Deana Alline Dean ("the child").

The mother and the father were divorced in November 1998; although the divorce judgment awarded the father and the mother joint legal custody of the child, the mother was awarded sole physical custody of the child. In addition, that judgment ordered the father to pay child support to the mother and to provide health-insurance coverage for the child. The father subsequently married another woman, Teresa Ann Hart.

In January 2003, the mother enrolled in a medical-assistant program at a college to improve her job opportunities.¹ The mother testified that the time demands of her school curriculum and her work schedule had prevented her from adequately caring for the child at that time. As a result, in January 2003, the mother and the father entered into an informal agreement in which the father consented to care for the child while the mother completed the medical-assistant program. The parties agreed that, after the mother completed that program, the father would return the child to the mother. While the father was caring for the child, the mother exercised visitation with the child every other weekend and occasionally on Wednesdays.

The father did not withdraw the child from her then-current school during the academic year that he began caring for the child; however, he did enroll her in a school located in the district of his residence during the following academic year. While in the father's care, the child was placed on the A/B honor roll every semester. The father testified that he had been very active in the child's academic and extracurricular activities. The mother admitted, however, that she had been unable to participate in any of the child's school activities during the three and a half years preceding the trial. The child testified that she would rather live with the father instead of the mother because, she said, the father spends more time with her.

During the proceedings, the father and Hart were divorced, and the father and the child moved into the home of the child's paternal grandfather. Shortly before trial, however, the paternal grandfather became ill, and the father and the child moved from the paternal grandfather's home to a home of their own. The father's employment schedule required him to leave for work before the child left for school and to return home after school hours. The child's paternal grandmother, however, transported the child to school in the mornings, picked up the child after school, and cared for the child until the father returned home.

There was conflicting evidence as to whether the mother sought the child's return to her home after the mother had graduated from the medical-assistant program in July 2004. The father claimed that the mother had not requested the return of the child until he asked her to relinquish custody of the child to him in September 2005, almost a year and a half after she had completed the program. The mother, on the other hand, testified that, shortly after she graduated, she had repeatedly requested that the father return the child to her, but that the father had refused. The mother stated that she had made several attempts to secure the child's return but that she had been unable to afford an attorney and that the father had intimidated her to the point that she was unable to seek the assistance of an attorney. Notwithstanding her fear of the father, the mother continued to exercise visitation with the child every other weekend and on Wednesdays. The mother did eventually seek the assistance of an attorney; on October 5, 2005, she removed the child from her school. On October 12, 2005, the father filed an instanter motion for pendente lite custody, a motion seeking to require the parties undergo drug testing, and a petition to modify custody.

On October 26, 2005, the trial court held an ex parte hearing on the father's request for pendente lite custody. The trial court awarded the father pendente lite custody of the child pending service of his pleadings upon the mother. On October 31, 2005, service was perfected on the mother. The mother filed an answer, denying a majority of the allegations, and a counterclaim, alleging that the father had obstructed her attempts to regain custody of the child.

After a hearing on December 12, 2005, regarding the father's request for pendente lite custody of the child, the parties reached an agreement under which the father would retain pendente lite custody of the child, the mother would exercise visitation, and both parties would submit to hair-follicle testing. The trial court then entered an order reflecting that agreement. The mother, however, refused to undergo the hair-follicle test until the court granted the father's motion to compel approximately eight and a half months later.

The case proceeded to trial on December 4, 2006; the following evidence was adduced at trial. During the mother's career she had worked in several different occupations, and the evidence was contradictory as to whether she had been discharged or had resigned from those jobs. The mother testified that she had been employed at an office-equipment company and had voluntarily resigned from that position to pursue the medical-assistant program. The mother denied that she had been discharged from that position. However, the mother's testimony was impeached by documentary evidence indicating that she had, in fact, been discharged by the office-equipment company because of poor performance and poor attendance. The mother then gained employment at a medical-management company. The mother admitted, however, that she had been discharged from that employment because she had tested positive for a controlled substance for which she had not had a recent prescription. The mother then obtained employment at a real-estate company, but, she stated, she had resigned because she was no longer able to cope with her personal issues and adequately perform her job. At the time of trial, the mother had been steadily employed for approximately six months at her current job.

Moreover, evidence adduced at trial indicated that the mother may have had a substance-abuse problem. The father's sister testified that she had seen the mother at the child's soccer game in October 2004 and that the mother had acted as if she was under the influence of drugs. The father, similarly testified that, on several occasions at the child's sporting events and when he had picked the child up from the mother on the weekends, he had witnessed the mother acting as if she was under the influence of a controlled substance.

Following the parties' divorce, the mother had married another man. The mother, the mother's new husband, and her 15-year-old daughter (a child from a previous relationship with another man) lived in a two-bedroom apartment. The mother testified that, if she were awarded custody, the child would share a room with her teenage half sister and that the half sister would care for the child after school until the mother returned home from work. The half sister, however, had not been in the mother's care between the ages of 8 and 13, had been diagnosed with attention deficit/hyperactivity disorder, and had failed the sixth grade.

After the ore tenus hearing on the merits, the trial court recognized in its judgment that the mother had filed a counterclaim and had orally sought a finding of contempt; that court's judgment "granted" the father's petition to modify custody without expressly adjudicating the mother's oral motion to hold the father in contempt for failing to pay child support.²

The trial court's judgment cited no case law, but the father's petition had specifically alleged that "the good brought about by modifying custody of said minor far outweighs any disruptive effects, in fact returning the child to her familiar homeplace. Further, modification of custody will materially promote the best interest of said minor child." The trial court awarded sole physical custody of the child to the father, awarded the mother visitation, and ordered the mother to pay child support. The mother filed a postjudgment motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. After a hearing on the motion, the trial court denied her motion, and the mother timely appealed to this court.

On appeal, the mother contends that the trial court exceeded its discretion in transferring custody of the child to the father because, she says, the father failed to satisfy the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984).

We note that our standard of review is highly deferential:

"`When evidence in a child custody case has been presented ore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination—it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994), wherein this Court, quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ.App.1993), set out the well-established rule:

"`"`Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of...