Barber v. Moore

• Decision Date: 30 April 2004
• Citation: 897 So.2d 1150
• Parties: Kimberly L. BARBER v. Andrew P. MOORE.
• Court: Alabama Court of Civil Appeals

897 So.2d 1150

Kimberly L. BARBER v. Andrew P. MOORE.

2030038.

Court of Civil Appeals of Alabama.

April 30, 2004.

C. Nelson Gill of Copeland Franco Screws & Gill, P.A., Montgomery, for appellant.

Submitted on appellant's brief only.

THOMPSON, Judge.

On April 2, 1996, Andrew P. Moore ("the father") and Kimberly L. Barber ("the mother") were divorced by a judgment of the trial court. Two children, Brock Moore ("Brock") and Drake Moore ("Drake"), were born of the parties' marriage. Pursuant to the divorce judgment, the mother was awarded custody of the children and the father was ordered to pay $512.72 per month in child support.

On June 5, 1997, the mother filed a petition seeking to modify the father's visitation with the children, asking the court to order the father not to smoke around the children and also seeking to have the father held in contempt for his alleged failure to pay one-half of the children's medical expenses and a portion of the parties' marital debt, as required by the 1996 divorce judgment. The husband answered on June 24, 1997, and on February 23, 1998, he filed a counterclaim seeking joint custody of the parties' children and requesting a modification of child support. On March 30, 1998, the trial court entered an order based on an agreement reached by the parties in which it, among other things, ordered that the mother and the father not place the children in a smoke-filled environment or otherwise subject them to cigarette smoke. The trial court reserved its ruling on the issues of child support, contempt, and visitation; those issues not specifically addressed or reserved in the trial court's March 30, 1998, order, including custody, were deemed resolved by an agreement of the parties. On May 29, 1998, the trial court entered an order in which it addressed the remaining issues by finding the father in contempt, increasing the father's child-support obligation to $577 per month, modifying the father's visitation with the children, and denying any further relief.

On April 9, 2002, the father filed a petition for a modification, seeking custody of the parties' children. The father alleged that the mother was providing an "unsavory living environment" for the children. The mother answered on May 17, 2002, and counterclaimed, requesting that the trial court find the father in contempt for his failure to pay overdue child support and for smoking in the presence of the children and requesting an increase in the father's child-support obligation.

The trial court conducted hearings on October 24, 2002, February 17, 2003, May 30, 2003, September 16, 2003, and September 30, 2003; the trial court received ore tenus evidence at each hearing. Following the October 24, 2002, hearing, the trial court awarded the father custody of the parties' older child, Brock, pending further proceedings, and it awarded the mother scheduled visitation; Drake, the younger child, remained in the custody of the mother. At the close of testimony at the hearing on May 30, 2003, the trial court made an unconventional ruling by entering a "temporary order" from the bench in which the father was awarded custody of both children for 100 days and the mother was awarded scheduled visitation with the children every other weekend. Thereafter, the trial court entered a written order on June 4, 2003, in which it stated, in part:

"Temporary alteration of the parties' prior domestic judgments appears to be appropriate in that respect, and various relief is consequently set out in the remaining provisions of this document. It is specifically noted, however, that all modifications of earlier orders as made below are expressly based upon a determination that the circumstances of the parties have materially changed since said earlier orders were entered, and to an extent justifying the instant [order].

"For the present, the father is awarded the care, custody and control of the minor children....

"The foregoing reflects a change in child custody status. However, the positive good brought about thereby will more than offset the inherently disruptive effect that is caused. Additionally, this [order] is in the best interests of [the children].

"....

"Notwithstanding the former provisions in this document, this order shall not be deemed the final [judgment] in this case. Some issues of the parties are thus not addressed by it. Further, some of the relief allowed above may have to be reviewed and/or changed after further testimony. Jurisdiction is consequently reserved for all such purposes, and so that the Court may hold a `follow-up hearing'...."

On July 17, 2003, the mother petitioned this court for a writ of mandamus seeking review of the trial court's June 4, 2003, custody order; that petition was subsequently denied without an opinion. We note that the burden is on the petitioner seeking a writ of mandamus to demonstrate that their "petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy." Ex parte Dillard Dep't Stores, Inc., 879 So.2d 1134, 1137 (Ala.2003)(citing Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala.1992)).¹ The trial court held a "follow-up" hearing on September 16 and 30, 2003. After receiving further ore tenus evidence, the trial court entered a final judgment on October 2, 2003, awarding custody of the parties' children to the father.² The mother timely appealed.

The mother raises several issues on appeal. We find the resolution of the following issue to be dispositive. The mother contends that the trial court erred in awarding custody of the children to the father because, she says, the trial court misapplied the burden of proof set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), necessary to justify a change in custody. Specifically, the mother contends that the trial court impermissibly shifted the burden of proof of the McLendon standard to her after it issued its June 4, 2003, order awarding the father custody of both of the parties' children for 100 days; she contends the effect of that order was to require her to meet the McLendon standard in order to regain custody. After carefully reviewing the record on appeal, we agree that the trial court erred.

A detailed recitation of the facts in this case would serve no useful purpose. The parties in this case made a number of allegations against each other with regard to their respective parenting abilities. The father alleged that the mother exposed the children to sexually explicit materials that were sold in the mother's novelty store. The mother alleged that the father continued to smoke around the children in violation of the trial court's orders and that the father took no interest in the children's education. The mother and the father both alleged that they were subjected to physical violence during the marriage.

Initially, we note that the ore tenus rule only applies to questions of fact and that where the trial court resolves a factual issue in a custody action its determination on that issue is afforded a presumption of correctness on appeal. Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991). However, when this court is presented with an issue of law, such as the application of the correct child-custody-modification standard, we review the judgment of the trial court de novo, without affording it any presumption of correctness. Ex parte Perkins, 646 So.2d 46 (Ala.1994).

In Ex parte McLendon, supra,

our supreme court held that the proper standard to be applied in child-custody cases wherein a parent has either voluntarily forfeited custody or has lost custody due to a prior judgment is whether there has been a material change in circumstances since the prior judgment; whether a change in custody will materially promote the best interests of the child; and whether the benefits of the change in custody will more than offset the inherently disruptive effect caused by uprooting the child. 455 So.2d at 865. The McLendon standard also applies to those cases wherein a parent temporarily loses custody of a child. See Davis v. Moody, 459 So.2d 914 (Ala.Civ.App.1984).

In Sims v. Sims, 515 So.2d 1 (Ala.Civ.App.1987), this court distinguished an award of temporary custody from an award of pendente lite custody:

"[T]emporary custody awards are generally intended to last until one of the parties petitions the court to modify the [order or judgment] granting temporary custody. Pendente lite orders, on the other hand, are generally entered only during the pendency of the litigation, and are usually replaced by a final order or [judgment] which is entered at the end of the litigation. Therefore, a pendente lite order, whether entered ex parte or after notice and hearing, clearly envisions a temporary disposition of custody pending a later final determination of the custody dispute. A second distinction that can be drawn between temporary custody awards and pendente lite awards lies in the manner by which the two orders may be reviewed....

"A third reason that pendente lite orders are distinguishable from temporary orders is that a trial court's judgment in a final [order or judgment] following a pendente lite order must be determined on the basis of evidence submitted to the court in support of the final [order or judgment]. It cannot be based on evidence of changed circumstances submitted in a hearing to modify a temporary [order or judgment]. Thus, the burden of proof in final [orders or judgments] following pendente lite orders is different from the burden of proof required to modify a previous temporary [order or judgment]."

Sims v. Sims, 515 So.2d at 2-3 (citations omitted). This court concluded "as a matter of law that pendente lite orders, unlike other temporary orders or [judgments], do not activate the McLendon rule." Sims, 515 So.2d at 3.

In the instant case, the mother was awarded primary physical custody of the children by an April 2, 1996, judgment of the trial court. The father...