Ex parte Tonya BLACKSTOCK. .

• Decision Date: 19 February 2010
• Docket Number: 1061445.
• Citation: 47 So.3d 801
• Parties: Ex parte Tonya BLACKSTOCK. (In re Mark Davis v. Tonya Blackstock).
• Court: Alabama Supreme Court

47 So.3d 801

Ex parte Tonya BLACKSTOCK.(In re Mark Davis

v.Tonya Blackstock).

1061445.

Supreme Court of Alabama.

Sept. 11, 2009.

Rehearing Denied Feb. 19, 2010.

Lindsey Mussleman Davis of Holt, Mussleman, Holt & Morgan, Florence, for petitioner.

Heath F. Trousdale, Florence, for respondent.

PER CURIAM.

This case involves a dispute between Tonya Blackstock (“the mother”) and Mark Davis (“the father”) concerning the custody of their daughter (“the child”).

A. Procedural History

The Court of Civil Appeals in Davis v. Blackstock, 47 So.3d 796(Ala.Civ.App.2007), summarized the history of this case:

“The father and the mother married on November 11, 2000. Four months later, while they were residing in Tennessee, the father and the mother separated. The mother was pregnant with the child at the time of the separation.

Subsequently, a petition for divorce was filed in the Chancery Court for Lawrence County, Tennessee (‘the Tennessee trial court’). Before the Tennessee trial court ruled on the divorce petition filed with that court, the father and the mother moved to Alabama, where the mother gave birth to the child on December 27, 2001.

“On February 15, 2002, the Tennessee trial court entered a judgment divorcing the father and the mother. In essence, the Tennessee judgment granted the father and the mother joint custody, with the mother receiving primary physical custody and child support. In June 2002, while the father, the mother, and the child continued to reside in Alabama, the father petitioned the Tennessee trial court for a modification of its February 15, 2002, judgment with regard to custody. On September 3, 2003, the Tennessee trial court modified its divorce judgment by granting the father equal physical custody on a four-day rotating basis and terminating the father's child-support obligation.”

47 So.3d at 797. The mother appealed, and the Tennessee Court of Appeals affirmed the custody-modification order but remanded the cause for further proceedings relating to ancillary matters. Id. When the parties moved to Alabama, the mother moved to Florence and the father moved to Decatur.

In February 2006, the mother filed a petition in the Lauderdale Circuit Court seeking a modification of custody and child support. ¹ Reiterating statements from her sworn answers to interrogatories, the mother testified at trial as to several allegedly material changes in circumstances that, she claimed, warranted a change in the September 2003 custody award, including that the child would begin attending pre-kindergarten classes (“the pre-K program”) in the fall of 2006; that the pre-K program was a “structured” program and the child would be required to attend every day; ² that the child would need daily “structure and stability” at that time; that the four-day rotating-custody arrangement (“the four/four custody arrangement”) “minimize[d] stability” for the child and would make it more difficult to stay on a routine with regard to the pre-K program; that as “[the child's] gotten older, she's shown increased anxiety over the constant change of environment, and has voiced dissatisfaction with the constant change”; and that the father “told the Tennessee court he would move to Florence when [the child] got older” and he has not done so.

The father opposed the mother's modification petition, and, a few days before trial, he filed a counterpetition seeking “primary physical custody” of the child on the grounds that the mother had attempted to alienate the child from the father and that she had

“involve[d] the four (4) year old child in adult matters as well as proceeding to enroll the child in an educational type program without consulting and receiving permission from the [father] and knowing that in the current custodial arrangement, the child cannot participate. These are all issues that have developed since the filing of this action, although others exist to support the change of custody.”

After an ore tenus hearing, the Lauderdale Circuit Court entered a judgment in September 2006 that (1) maintained the joint-legal-custody award to the parents, (2) awarded the mother primary physical custody, (3) awarded the father “standard visitation,” ³ with the addition of visitation “every Tuesday from when the child is discharged from school until 8:00 p.m.,” and (4) ordered the father to pay child support. The father appealed.

In reversing the judgment of the Lauderdale Circuit Court, the Court of Civil Appeals stated:

“Based on the totality of the evidence, we conclude that the mother failed to meet her burden of showing that a material change of circumstances had occurred that affected the child's welfare since the last custody order. See, e.g., Watters v. Watters, 918 So.2d 913, 916-17 (Ala.Civ.App.2005). The evidence shows that the only change that has occurred has been the natural progression of the child to pre-kindergarten school. However, the mother has not demonstrated how this change, in the context of the joint-custody arrangement, has affected the child's welfare or best interest. The evidence shows that the child could attend pre-kindergarten part-time and that the father could instruct the child on the days she did not attend. The child thrived in a similar arrangement in day care. The mother presented no evidence to indicate that the child would not continue to thrive while in pre-kindergarten under the same arrangement. The only other relevant evidence the mother presented showed that the child expressed anxiety at exchanges and that she would miss school, church, and extracurricular activities if the current custody arrangement was maintained. However, as the father points out, even under the physical-custody arrangement approved by the Alabama trial court, the child would still experience exchanges and would still miss activities.

“Accordingly, we reverse the Alabama trial court's modification of the 2003 custody judgment.”

47 So.3d at 800-01.

In her petition to this Court for a writ of certiorari, the mother contends, in part, that the Court of Civil Appeals' decision conflicts with prior precedent. Specifically, she argues (1) that the Court of Civil Appeals' decision conflicts with Lamb v. Lamb, 939 So.2d 918 (Ala.Civ.App.2006), because, she says, the Court of Civil Appeals improperly reweighed the evidence and did not give effect to the presumption of correctness afforded the trial court's judgment in ore tenus cases and (2) that the decision conflicts with, or misapplies, the holding in Watters v. Watters, 918 So.2d 913 (Ala.Civ.App.2005), on which the Court of Civil Appeals relied. We agree.

B. Standard of Review

[1] [2] 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)).

[3] 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 tenus, 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).

[4] As this Court stated in Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996), quoted in part in Lamb, 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 reweigh the evidence. This 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)).

[5] [6] “ ‘[T]he trial court is in the better position to consider all of the evidence, as well as the many...