Clark v. Clark, 2171013

• Decision Date: 12 July 2019
• Docket Number: 2171013
• Citation: 292 So.3d 1054
• Parties: George Donald CLARK, Jr. v. Rebecca Rutland CLARK
• Court: Alabama Court of Civil Appeals

292 So.3d 1054

George Donald CLARK, Jr.

v.Rebecca Rutland CLARK

2171013

Court of Civil Appeals of Alabama.

July 12, 2019

Jacquelyn D. Tomlinson and Dana M. Delk of Delk & Tomlinson, Attorneys at Law, Montgomery, for appellant.

Joshua B. James, Montgomery, for appellee.

On Application for Rehearing

THOMPSON, Presiding Judge.

This court's opinion of April 19, 2019, is withdrawn, and the following is substituted therefor.

On February 28, 2017, Rebecca Rutland Clark ("the mother") filed in the Montgomery Circuit Court ("the trial court") a petition seeking to modify a judgment of the trial court that had divorced her from George Donald Clark, Jr. ("the father"). The parties' divorce judgment is not contained in the record on appeal, but the pleadings and testimony of the parties before the trial court indicate that that divorce judgment provided that the parties shared joint legal custody of their three minor children. Pursuant to the divorce judgment, the parties shared joint physical custody of the two older children, who are both boys, and the divorce judgment awarded the mother sole physical custody of the parties' youngest child, a daughter.¹

In her February 28, 2017, modification petition, the mother sought an award of sole physical custody of all three children, an increase in the father's periodic-alimony obligation, a determination that the father was in contempt for his alleged failure to comply with certain terms of a pendente lite order and the divorce judgment, and an award of an attorney fee. The father answered and counterclaimed, seeking an award of sole physical custody of all three of the parties' children, a modification of child support, to have the mother held in contempt for her alleged failure to pay certain amounts as required in the divorce judgment, and an award of an attorney fee.

The father also filed a motion requesting pendente lite relief, arguing that he had stored a horse trailer on property belonging to the mother's father but that the mother's father had refused to allow him to retrieve it. The father sought an order declaring his right to retrieve that trailer. The mother responded to that motion by arguing that the horse trailer had been a gift from the father to her. The trial court determined that it would rule on the father's motion during the final hearing in this action. On January 10, 2018, the father filed an amended counterclaim, seeking, in addition to his earlier claims, the termination of his child-support obligation for the parties' oldest child, who had reached the age of majority in November 2017, and the termination of his periodic-alimony obligation because the mother had remarried.

The trial court conducted an ore tenus hearing on March 8, 2018. On March 30, 2018, the trial court entered a judgment in which it denied both parties' requests for a modification of child custody, granted the father's request that his periodic-alimony obligation be terminated, and modified the father's child-support obligation. In addition, the trial court found that each party was in arrears in reimbursing the other for certain child-related expenses. After offsetting those amounts, it awarded the mother a total of $7,103.47; in doing so, the trial court declined to hold either party in contempt for his or her failure to reimburse the other for those expenses. The trial court also determined that the father was entitled to possession of the horse trailer, and it ordered that the father turn over to the mother any remaining keepsakes and photographs in his possession. The trial court denied the parties' other requests for relief.

The father filed a postjudgment motion on April 5, 2018, challenging several rulings of the trial court and the evidentiary support for those rulings. On April 20, 2018, the mother filed a postjudgment motion. On July 16, 2018, the trial court entered a postjudgment order. In that postjudgment order, in response to the relief requested by the mother, the trial court, among other things, altered the provision in the March 30, 2018, judgment concerning the father's child-support obligation. The trial court also addressed other matters that are not at issue on appeal. The father timely appealed.

The father first argues that the trial court erred in denying his claim seeking the modification of custody of the parties' two minor children, a son ("the son") and a daughter ("the daughter").²

"Before we begin our analysis, we first consider the applicable standards of review. When this Court reviews a trial court's child-custody determination that was based upon evidence presented ore tenus, we presume the trial court's decision is correct: ‘ "A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong...." ’ Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994), quoting Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993) (citations omitted). This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So. 2d 1029, 1032 (Ala. Civ. App. 1981)."

Ex parte Fann, 810 So. 2d 631, 632–33 (Ala. 2001).

The parties' divorce judgment provided for differing custodial awards for the son and the daughter, and, therefore, the burden the father bore in seeking to modify custody was different for each child. The divorce judgment awarded the parties joint legal custody and joint physical custody of the son. Therefore, in order to modify physical custody as it pertained to the son, the father was required to present evidence of a material change in circumstances such that an award of sole physical custody to him would be in the son's best interests. Ex parte Blackstock, 47 So. 3d 801, 804-05 (Ala. 2009). The divorce judgment awarded the mother sole physical custody of the daughter. In order to prevail on his claim seeking an award of sole physical custody of the daughter, the father was required to demonstrate that a material change of circumstances exists, that the change in custody would materially promote the child's best interests, and that the benefits of the change in custody would more than offset the inherently disruptive effect of uprooting the child. Walker v. Lanier, 180 So. 3d 39, 42 (Ala. Civ. App. 2015). See also Ex parte McLendon, 455 So. 2d 863, 865–66 (Ala. 1984).

The evidence is undisputed that the parties do not work together to parent the children and that they communicate only rarely. The father testified that he wanted a change in custody in order to spend more time with the daughter. Each party presented evidence concerning incidents that brought into question the other party's judgment. The mother presented evidence indicating that the son suffered an eye injury while playing baseball in the father's custody and that, immediately thereafter, the father left the child at the mother's house without communicating with her about that injury. The father presented evidence indicating that, on one occasion, the mother had allowed an unsupervised, 15-year-old unlicensed driver to drive the son and the daughter a short distance to her home.

The mother presented evidence indicating that the son left the father's home without the father's knowledge and was discovered in the bedroom of the son's girlfriend. The father admitted that that incident occurred, and he stated that no similar incident had since occurred. The father alleged that the mother had left the son and the daughter home alone late at night on one occasion. The mother denied that allegation, and she stated that the children had been home with their older brother.

Thus, the evidence in the record was disputed, and it is the function of the trial court to resolve factual disputes. Wells v. Tankersley, 244 So. 3d 975, 982 (Ala. Civ. App. 2017) ("[T]he trial court, as the trier of fact, was in the best position to resolve the disputes in the evidence."). During the ore tenus hearing, each party also attempted to bolster his or her allegations against the other with references to the testimony of the parties' three children. At the beginning of the hearing, the trial court conducted in camera interviews with each of the parties' children outside the presence of the parties. Those interviews were not transcribed, and neither party has submitted a Rule 10(d), Ala. R. App. P., statement of the evidence setting forth the content of the children's testimony. "[W]hen an in camera interview with a child is conducted by the trial court and no record is made of the interview, this court will presume that the interview supports the findings of the trial court." Reuter v. Neese, 586 So. 2d 232, 235 (Ala. Civ. App. 1991). It is the burden of the father, as the appellant, to ensure that the record contains sufficient evidence to warrant a reversal on appeal. Griffin v. Griffin, 159 So. 3d 67, 71 (Ala. Civ. App. 2014). Given the evidence in the record, together with the presumption that evidence heard by the trial court but not set forth in the record supports the trial court's judgment, we conclude that the father has failed to demonstrate on appeal that he met his respective burdens to warrant a change in custody of either child and that, therefore, he has failed to establish that the trial court erred in denying his claims seeking a modification of custody of the son and the daughter. M.B. v. L.B., 154 So. 3d 1043, 1048 (Ala. Civ. App. 2014).

The father also argues that the trial court erred in its determination of child support. In its March 30, 2018, judgment, the trial court ordered the father to pay the mother $483 per month in child support....