Ex parte Bryowsky

• Decision Date: 08 March 1996
• Citation: 676 So.2d 1322
• Parties: Ex parte Angela Dawn Gann BRYOWSKY. (In re Allan Dyoll GANN v. Angela Dawn Gann BRYOWSKY). 1950131.
• Court: Alabama Supreme Court

Page 1322

676 So.2d 1322

Ex parte Angela Dawn Gann BRYOWSKY (In re Allan Dyoll GANN v. Angela Dawn Gann BRYOWSKY).

1950131.

Supreme Court of Alabama.

March 8, 1996.

Jerry F. Guyton of Fite, Davis, Atkinson, Guyton and Bentley, P.C., Hamilton, for Petitioner.

M. Lionel Leathers of Hollis, Leathers & Leathers, P.C., Winfield, for Respondent.

HOUSTON, Justice.

Angela Dawn Gann Bryowsky and Allan Dyoll Gann were divorced in January 1992. The trial court adopted the parties' divorce agreement as part of its judgment of divorce. That agreement granted to the parties the joint legal custody of their minor child; however, physical custody of the child was vested in the mother. ¹ Following the divorce, the parties entered into an informal arrangement whereby the minor child actually spent about half his time with his mother and half with his father. Because of the mother's work schedule, this arrangement benefited the parties and the child. In December 1993, after learning that the mother was planning to remarry and move with the child to Mississippi, the father petitioned to have the divorce judgment modified so as to allow him to have physical custody of the child. After an ore tenus hearing wherein numerous witnesses testified, including the child, both parties, character witnesses, relatives, and professionals who had taught, tested, and worked with the child, the trial court entered a judgment for the mother. The father appealed to the Court of Civil Appeals, which reversed the judgment and remanded the case with instructions for the trial court to enter a judgment awarding custody to the father. See Gann v. Bryowsky, 676 So.2d 1317 (Ala.Civ.App.1995), for a detailed statement of the facts surrounding this case. We granted the mother's petition for certiorari review pursuant to Rule 39, Ala.R.App.P. We reverse and remand.

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 correctness on appeal, Payne v. Payne, 550 So.2d 440 (Ala.Civ.App.1989), and Vail v. Vail, 532 So.2d 639 (Ala.Civ.App.1988), 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 reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So.2d 1343 (Ala.Civ.App.1990); Flowers v. Flowers, 479 So.2d 1257 (Ala.Civ.App.1985).' "

It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. See the cases collected at 3 Ala. Digest 2d Appeal & Error § 846(5) (1993).

There are two different standards for reviewing custody arrangements. If custody has not previously been determined, then the "best interest of the child" standard is appropriate. Ex parte Couch, 521 So.2d 987 (Ala.1988). However, if a judgment has granted custody to one parent, or if one parent has given up legal custody, then custody will be changed only if the change would "materially promote" the child's welfare. Ex parte McLendon, 455 So.2d 863 (Ala.1984). In the present case, the trial court did not state which of these standards it found to be applicable and it made no specific findings that would support its judgment. Emphasizing the fact that the parties had worked out an informal arrangement to share child-rearing responsibilities, and relying on Ex parte Couch, supra, the Court of Civil Appeals held that the "best interest of the child" standard was applicable. The court then reviewed the judgment, using both of the standards, ultimately concluding that the trial court's refusal to award custody to the father was clearly erroneous. ²

The mother contends that the reliance by the Court of Civil Appeals on Ex parte Couch in support of its application of the "best interest of the child" standard was misplaced. She argues that the more stringent McLendon standard should have been applied because she had previously been granted physical custody of the child in the parties' divorce judgment. She also contends that the record does not support the conclusion reached by the Court of Civil Appeals that the trial court's judgment is clearly erroneous. We agree.

The Court of Civil Appeals correctly noted that the McLendon standard does not always apply in joint custody situations. However, Ex parte Couch involved joint legal custody and shared physical custody of the children where no judicial determination had been made preferring either parent. Therefore, when the father in Ex parte Couch sought custody, we applied the "best interest of the child" standard because under the particular facts of that case both parents were on equal ground in attempting to gain custody of the children. In the present case, the parties had joint legal custody, but a previous judicial determination had granted physical custody to the mother. This distinguishes this case from Ex parte Couch. See Blackmon v. Scott, 622 So.2d 393 (Ala.Civ.App.1993), for a case substantially similar to this one, where the Court of Civil Appeals applied the McLendon standard. We further note that it makes no difference that the parties here had worked out an informal arrangement to care for the child. Although the nature of that arrangement and its impact on the child would be factors to be considered in determining whether a transfer of custody from the mother to the father would materially promote the child's welfare, the arrangement itself did not constitute a waiver on the mother's part of her right to preference under the divorce judgment. Ex parte Couch....