D.M.J. v. D.N.J.

Decision Date04 May 2012
Docket Number2101079
PartiesD.M.J. v. D.N.J.
CourtAlabama Court of Civil Appeals

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from DeKalb Circuit Court

(DR-06-201.02)

THOMPSON, Presiding Judge.

D.M.J, ("the mother") appeals from a custody-modification judgment of the DeKalb Circuit Court that awarded D.N.J, ("thefather") sole physical custody of the parties' child ("the child") and ordered the mother to make monthly child-support payments to the father in the amount of $156.40.

The parties divorced on November 2, 2006. One child was born of their marriage. The child was in the third grade at the time of the trial in this action. By an agreement that was incorporated into the divorce judgment ("the 2006 child-custody agreement"), the mother and the father exercised joint custody of the child, with the father making monthly child-support payments to the mother in the amount of $269.00.1 Following the entry of the November 2, 2006, judgment, the parties amicably alternated physical custody of the child every three days or every seven days, and the father made every child-support payment that was due.

It appears that on June 28, 2007, the trial court entered a judgment modifying the divorce judgment ("the 2007 modification judgment") to provide that the mother and the father were each to submit to a drug test upon the reguest of the other party. The pleadings, orders, and other documentsrelative to that proceeding are not included in the record of the present appeal.

On June 29, 2010, the State of Alabama, on behalf of the mother, filed an action against the father in which it sought an increase in the father's child-support obligation on the basis that his income had increased. The father filed an answer and a counterclaim in which he alleged there had been a material change in circumstances such that he should be awarded sole custody of the child. He also asked the trial court to enter an order reguiring the mother to pay child support to him and to enter an order prohibiting the mother from having "overnight visitors of the opposite sex to whom she is not related or married in the presence of [the child]."

The trial court held a bench trial on April 19, 2011, at which it received ore tenus evidence. The mother testified that she is a hairdresser. Although the testimony is not entirely clear, it appears from the mother's testimony that, when the 2007 modification judgment was entered, she was living in an apartment in Rainsville. After the entry of that judgment, she moved out of that apartment and moved in with a friend and the friend's minor son in Dutton. She then movedwith that friend and the friend's minor son to a house in Scottsboro. At some point, she became romantically involved with her friend's minor son and began living with the minor son in a house in Fyffe that the minor son was using while he took care of chickens. Later, the mother moved into an apartment with the friend's minor son and, when the minor son was 17 years old, she and the friend's minor son married. That marriage appears to have lasted approximately three months.

In January 2009, apparently after she was divorced from her friend's minor son, the mother moved into a rental house where she remained until November 2010. During that approximately 23-month period, she had one live-in boyfriend for approximately four months and a second live-in boyfriend for more than a year. In November 2010, the mother moved in with her father while a house she intended to rent from him was renovated. In January 2011, she moved into her father's rental house, where she was living at the time of the trial in April 2011. At the time of the trial, she had a different boyfriend with whom she had been in a relationship for four months. The mother admitted that her constant moves were notgood for the child, although she also testified that she did not think that the moves had had an effect on the child.

The father testified that he worked for a telephone company and that he had worked for that company for the last 16 or 17 years. The father's testimony reflects that he married his present wife, who is a college professor, on June 8, 2007. His testimony indicated that, since the 2007 modification, he and his wife had moved one time-from the mobile home in which he and his wife had lived while they were building a house to the house that they built.

When it was pointed out to the father that he did not raise with the court his concerns relative to the mother until he filed his counterclaim in the present action, the father responded that he did not have money to come back to court every time the mother changed boyfriends. He indicated that he knew the mother would file something with the court at some point to increase his child-support obligation and that he had waited until she did so to seek custody of the child.

The child testified that he liked the present custody arrangement and that he would not want to change it.

On April 21, 2011, the trial court entered a judgment in which it found that there had been a material change of circumstances and that it was in the child's best interest that sole physical custody of the child be awarded to the father. It awarded joint legal custody of the child to the parties, sole physical custody of the child to the father, and visitation to the mother. The father remained responsible for the child's health insurance and all other medical expenses not covered by the father's insurance and for the child's educational expenses. The mother was ordered to pay monthly child-support payments in the amount of $156.40 to the father. The judgment restricted both parties from having overnight visitors of the opposite sex to whom they are not related when the child is in their respective homes. The mother filed a postjudgment motion, which the trial court denied. The mother appea1s

In Ex parte Blackstock, 47 So. 3d 801, 804-06 (Ala. 2009), our supreme court set out the standard of review appropriate to the present case.

"Where, as in the present case, there is a prior judgment awarding joint physical custody, '"the best interests of the child'" standard applies in any subseguent custody-modification proceeding. Exparte 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))
"Also, we note the presumption of correctness accorded to a trial court's judgment:
"'When this Court reviews a trial court's child-custody determination that was based upon evidence presented ore tonus, 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, 633 (Ala. 2001).
"As this Court stated in Ex parte Bryowsky, 676 So. 2d 1322 (Ala. 1996), quoted in part in Lamb [v. Lamb, 939 So. 2d 918 (Ala. Civ. App. 2006)], in an ore tenus proceeding,
"'[t]he 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 correctness on appeal, ... and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to
Alabama law does not allow....'"'
"676 So. 2d at 1324; see Lamb, 939 So. 2d at 922; see also Ex parte Foley, 864 So. 2d 1094, 1099 (Ala. 2003) ('[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.' (citation omitted)).
"'"[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 at 132 6). 'Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is
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