Ex parte Johnson

• Decision Date: 26 August 1994
• Citation: 673 So.2d 410
• Parties: Ex parte Sharon S. JOHNSON. (Re Sharon S. BREEDLOVE v. Gregory B. BREEDLOVE). 1930494.
• Court: Alabama Supreme Court

Page 410

673 So.2d 410

Ex parte Sharon S. JOHNSON (Re Sharon S. BREEDLOVE v. Gregory B. BREEDLOVE).

1930494.

Supreme Court of Alabama.

Aug. 26, 1994.

David B. Byrne, Jr. and J. Elizabeth Kellum of Robison & Belser, P.A., Montgomery, for petitioner.

Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, E.E. Ball, Bay Minette, for respondent.

PER CURIAM.

This is a custody dispute.

The parties were divorced in 1987. The record does not contain a copy of the original divorce judgment or a copy of the agreement regarding custody. However, testimony in the record reveals that the parties had joint custody but that the mother had primary physical custody and that the child lived with the mother in Baldwin County. The father, who lived in Mobile County, had extensive visitation rights. Additionally, there was a provision in the judgment prohibiting removing the child from Baldwin or Mobile County.

The father first petitioned the court for primary custody in May 1990; it was denied. In April 1991, the father filed a petition to modify the custody arrangement, stating that he was taking a mandatory sabbatical from work and wanted to take the child with him as he traveled. No action had been taken on this petition when in August 1991, the mother filed a petition to modify the custody order because she had remarried and her new husband had accepted employment in another state. The mother's motion requested that the trial court modify the divorce judgment's restriction against removing the child from Baldwin or Mobile County. In response, the father filed a motion requesting that he be awarded primary physical custody of the child.

After an ore tenus hearing, the trial court awarded primary physical custody of the child to the father. In its order, the trial court stated: "[I]f the primary physical custody is left with the mother, the child will be subjected to a move from Alabama to Missouri, a change in schools, churches and other activities and an adjustment to a new stepfather and a new brother or sister, inasmuch as the mother has become pregnant." C.R. 45.

The mother filed a "motion to reconsider," stating, among other things, that "the change in primary physical custody to the father would result in many major alterations in the child's life, including a change in residence to Mobile from Baldwin County, a change in schools, a change in church and other activities, and a possible adjustment to a new sibling since the father and stepmother are of child-bearing ages." C.R. 32.

After holding a hearing on the mother's motion, the trial court reversed its modification order and readopted the original custody arrangement of joint custody, with the mother having primary physical custody of the child and the father having extensive visitation rights, and keeping in place the restriction on removing the child from Mobile or Baldwin County. The mother appealed and the father cross appealed.

The Court of Civil Appeals held that the trial court abused its discretion in granting the mother's motion and reversing its modification order, with no additional evidence having been filed in support of the mother's motion. The Court of Civil Appeals then discussed the trial court's award of primary physical custody to the father. Using the "best interests of the child" standard applicable in joint custody cases, the court held that a complete review of the record supported the trial court's previous order awarding primary custody to the father.

First, we must determine whether the Court of Civil Appeals erred in holding that additional evidence must be submitted on a "motion to reconsider." We note that the mother styled her motion as a "motion to reconsider" the order granting the father the primary physical custody. The Alabama Rules of Civil Procedure make no reference to a "motion to reconsider." However, this Court treats a motion so styled as a Rule 59(e) motion to "alter, amend, or vacate" a judgment, if it complies with the guidelines for such post-trial motions set out in Rule 59. See, McAlister v. Deatherage, 523 So.2d 387 (Ala.1988).

Rule 59(e) imposes no requirement that a party present additional evidence in support of a motion to alter, amend, or vacate a judgment. Additionally, no case law requires that additional evidence be submitted on such a motion. In Continental Grain Co. v. Beasley, 628 So.2d 319 (Ala.1993), the plaintiffs argued that this Court could not consider the additional evidence submitted in support of the defendant's motion to vacate or "reconsider" the trial court's order denying a motion to compel. We stated in Beasley that "the plaintiffs waived any objection to the additional evidence by not objecting or moving to have it excluded at the time it was offered." 628 So.2d at 321. Clearly, additional evidence may be submitted, but, if it is, it is subject to being excluded by the trial court upon timely objection. Certainly, our case law imposes no requirement that additional evidence be submitted on a motion to alter, amend, or vacate.

Although Rule 59(e) does not use the word "reconsider," that rule does contemplate that a court will be asked to "reconsider" the evidence it has heard or the ruling it has entered. The word "reconsider" is defined as "to consider again esp. with a view to changing or reversing" and as "to consider something again." Merriam Webster's Collegiate Dictionary 977 (10th ed. 1993). To require that the party moving the court to reconsider its ruling present evidence in addition to what the trial court had originally considered would contradict the meaning of the word "reconsider."

The Court of Civil Appeals erred in holding that a party must present additional evidence on a motion to "reconsider," i.e., on a Rule 59(e) motion. The mother's motion to alter, amend, or vacate the judgment awarding custody to the father was properly before the trial court, and the Court of Civil Appeals should have reviewed the trial court's ruling on that motion. Accordingly, we remand this case to the Court of Civil Appeals for it to review the order entered by the trial judge on the mother's motion.

We must now decide what standard of review the Court of Civil Appeals should apply in reviewing that order.

There are different standards for a trial court to use in ruling on questions of child custody. If one parent has previously been granted primary physical custody or if one parent has "given up" legal custody, then an existing custody arrangement will be modified only if the modification materially promotes the best interests and welfare of the child. Ex parte McLendon, 455 So.2d 863, 865-66 (Ala.1984). If neither parent has previously been given primary physical custody, then the "best interests of the child" standard applies. Ex parte Couch, 521 So.2d 987, 989 (Ala.1988).

One reason for applying a stricter standard after primary physical custody has been awarded to one parent is that uprooting and moving a child can be very traumatic. Therefore, the benefit to be gained in moving the child away from what the child knows as "home" must outweigh the potential harm in doing so.

We must now...