D.M.J. v. D.N.J.
| Decision Date | 07 September 2012 |
| Docket Number | 2101079. |
| Citation | 106 So.3d 393 |
| Parties | D.M.J. v. D.N.J. |
| Court | Alabama Court of Civil Appeals |
OPINION TEXT STARTS HERE
Alabama Supreme Court 1111468.
Christopher K. Croft, Rainsville, for appellant.
Angela Cochran Morgan, Fort Payne, for appellee.
On Application for Rehearing
The opinion of May 4, 2012, is withdrawn, and the following is substituted therefor.
D.M.J. (“the mother”) appeals from a custody-modification judgment of the DeKalb Circuit Court that awarded D.N.J. (“the father”) 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. 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, among other things, that the mother and the father were each to submit to a drug test upon the request of the other party. The pleadings, orders, and other documents relative to the divorce action and the 2007 modification proceeding are not included in the record of the present appeal.
On June 29, 2010, the State of Alabama (hereinafter “the State”), 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. On October 20, 2010, 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 requiring 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 moved with 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.1 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, after she 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. The mother testified that her landlord notified her that he had sold the house she was renting, and, therefore, 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; that boyfriend was not living with the mother. The mother admitted that her constant moves were not good for 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 three and a half years after the most recent modification, the father responded that he did not have money to come back to court “every time the mother changed boyfriends.” The father testified that he “knew” the mother would file something with the court at some point to increase his child-support obligation. The father repeatedly stated that, while he waited for that to happen, he noted the mother's conduct so that when he returned to court, he “would have all my ducks in a row” in order to assert a custody claim. We note that, according to the child-support forms incorporated into the trial court's judgment, the father's annual income was $82,685, and the mother's annual income was $15,600.
The mother testified that she requested the State's assistance in filing the child-support action after the father withdrew the child from the private school in which the child had been enrolled for several years. The divorce judgment had provided that the father pay “all educational fees and expenses, including school lunches, clothing, extracurricular activities.” The mother acknowledged that that provision did not specifically require that the father pay private-school tuition, but she stated that the father had agreed to pay that tuition. The father admitted that he had decided he could no longer afford to send the child to private school because he and his new wife had constructed “a house that ended up being a whole lot bigger than we was expecting” and because he and his new wife had had a child together.
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, all other medical expenses not covered by the father's health 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 appeals.
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 subsequent custody-modification proceeding. Ex parte 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:
“
“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 custodyhearing. 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...
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