Ex parte Perkins

• Decision Date: 17 June 1994
• Parties: Ex parte Debi Taylor PERKINS. (Re Joseph W. PERKINS, Jr. v. Debi Taylor PERKINS). 1930577.
• Court: Alabama Supreme Court

Page 46

646 So.2d 46

Ex parte Debi Taylor PERKINS (Re Joseph W. PERKINS, Jr. v. Debi Taylor PERKINS).

1930577.

Supreme Court of Alabama.

June 17, 1994.

Kathryn McC. Harwood, Tuscaloosa, for petitioner.

Jack Drake of Drake & Pierce, Tuscaloosa, for respondent.

HOUSTON, Justice.

Joseph and Debi Perkins were divorced in 1987, when their daughter was four years old. The court adopted the Perkinses' divorce agreement, which granted custody of the child to the mother, as part of its judgment of divorce. In 1991, the father filed a petition to modify the custody agreement. The mother maintained that the child was perfectly happy and well-adjusted. The father, who had since remarried and had had another child by this second marriage, testified that the child was behaving oddly and was not properly cared for by the mother. The facts of the case were vigorously disputed, and there was conflicting testimony both from experts and from the many lay witnesses. The trial court denied the father's petition, stating:

"[T]he court does not find the evidence to be clear and convincing to the point that there has been a material change in circumstances justifying a change in custody, nor does the court find that the Plaintiff has proven the Defendant to be unfit to continue to have custody of the minor child...."

The father appealed. The Court of Civil Appeals held that the trial court had applied the wrong standard. We agree. The standard cited by the trial court was not the standard it should have applied in this case. The standard applied appears to be the standard set out in Ex parte Terry, 494 So.2d 628 (Ala.1986), which applies in the case of a nonparent seeking to overcome the superior right of a parent to custody of his or her child. A parent seeking to gain custody of the child that he or she has previously given up, either voluntarily or because of a judgment, must show, by a preponderance of the evidence, that the change would materially promote the child's welfare. This would include a showing that the benefit gained by the change would more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, 455 So.2d 863 (Ala.1984); Ex parte Couch, 521 So.2d 987 (Ala.1988).

The Court of Civil Appeals properly held, as a matter of law, that the trial court had applied the wrong standard to the facts of this case. Having so held, that court should have reversed the judgment and remanded the cause to allow the trial court to make its determination from the disputed evidence, using the correct standard. However, a majority of the Court of Civil Appeals reviewed the evidence that had been presented ore tenus at trial, and held:

"After a complete review of the record ..., we conclude that the best interests of the child would be served by granting the father's requested modification of the custody order. In applying the McLendon standard, and taking into consideration the presumptions that apply to evidence presented ore tenus, this court holds that the trial court abused its discretion in not awarding custody to the father."

Perkins v. Perkins, 646 So.2d 43, 45 (Ala.Civ.App.1993).

The trial court heard this case without a jury. When evidence is presented ore tenus to the trial court, the court's findings of fact based on that evidence are presumed to be correct. However, in this case, the ore tenus rule had no application because the question presented to the Court of Civil Appeals was not based on a finding of fact; rather, it was one of law--whether the trial court had applied the correct standard of review.

Once the Court of Civil Appeals answered that question, it should have remanded the case for the trial court to consider the evidence in light of the McLendon standard. See, e.g., Ex parte McLendon, supra; Ex parte Jones, 620 So.2d 4 (Ala.1992); Phillips v. Phillips, 622 So.2d 410 (Ala.Civ.App.1993); Clayton v. Clayton, 598 So.2d 929 (Ala.Civ.App.1992). The trial court is in the best position to make a factual 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. Curtis White Construction Co. v. Butts &...