Machado v. Machado
| Decision Date | 16 October 2020 |
| Docket Number | 2190068, 2190069 |
| Citation | 329 So.3d 634 |
| Parties | Aysha MACHADO v. Peter MACHADO |
| Court | Alabama Court of Civil Appeals |
David Paul Coates, Huntsville, for appellant.
Bill G. Hall and Catherine E. Garland of Bill G. Hall & Associates, P.C., Huntsville, for appellee.
Aysha Machado ("the mother") appeals from a judgment entered by the Madison Circuit Court ("the trial court") in postdivorce proceedings involving her and Peter Machado ("the father").
The parties were divorced by a judgment entered by the trial court in 2013. The divorce judgment awarded the father sole physical custody of the parties’ older child, R.M., and awarded the mother sole physical custody of the parties’ younger child, L.M. ("the child"). The divorce judgment did not require either party to pay child support, but it did order the father to pay the mother periodic alimony. On May 2, 2018, the mother filed in the trial court a petition to modify child support ("the child-support action"), alleging that the parties’ older child had reached the age of majority and requesting that the trial court order the father to pay child support for the child, who was still a minor and who remained in the mother's physical custody.
On October 10, 2018, the father filed in the trial court a petition to modify the custody of the child and to modify his periodic-alimony obligation; he also requested that the trial court hold the mother in contempt for failing to pay certain medical expenses of the child ("the modification action").
The trial court consolidated the two actions and tried them together based on the petitions and answers thereto. The trial court entered a single judgment referencing both the child-support action and the modification action on September 9, 2019. That judgment provides, in part:
(Capitalization in original.)
On September 26, 2019, the mother filed a postjudgment motion. On October 2, 2019, each party submitted a proposed parenting plan. The mother's proposed parenting plan stated that the parties had been unable to reach an agreement on a final plan. On October 12, 2019, the mother filed her notice of appeal.1 Appeal number 2190068 involves that part of the judgment addressing the child-support action; appeal number 2190069 involves that part of the judgment addressing the modification action.
On appeal, the mother challenges the trial court's judgment to the extent that it denied her petition to modify child support and granted the father's petition to modify custody.
With regard to custody, this court has explained:
McCormick v. Ethridge, 15 So. 3d 524, 527 (Ala. Civ. App. 2008).
" "
Burgett v. Burgett, 995 So. 2d 907, 912 (Ala. Civ. App. 2008) (quoting Ex parte Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996) ).
The mother testified that it had been extremely difficult to parent the child, who has autism, without family support and that she desired to move to California where her family lived. The father, on the other hand, testified that he wanted custody of the child. He testified that he was concerned that the child, who was 16 years old at the time of trial, was not progressing so that he could become an independent adult and that the child had become obese while in the mother's custody. The father testified that, although the child is nonverbal, the father had purchased an iPad tablet computer for the child that had enabled the child to communicate. He testified that, in his opinion, the child needs additional applied-behavioral-analysis ("ABA") therapy and physical therapy. According to the father, he had begun the process of taking course work to provide the child with ABA therapy himself. The father testified that the mother had vetoed his suggestions regarding additional therapy for the child. He also testified that the mother had refused to communicate with him for many months leading up to the trial.
Based on the foregoing evidence, the trial court could have concluded that the child's lack of progress and weight gain to the point of obesity, as well as the mother's difficulty in parenting the child, were material changes in circumstances. Moreover, the trial court could have determined that ordering the parents to share joint physical custody of the child would provide the mother with support while allowing the father more time to implement additional therapies to assist the child with becoming more independent, thus materially promoting the child's welfare and outweighing any disruption from the change. Although there was other evidence weighing against the change in custody, considering our ore tenus standard of review, Burgett, 995 So. 2d at 912, we cannot reweigh the evidence in this case. Therefore, we affirm the trial court's judgment as to the custody modification.
The mother also argues that the trial court erred in sustaining the objections of the father's attorney to the mother's responses while testifying, which the attorney argued were unresponsive. However, the mother has failed to explain how the sustaining of those objections prejudiced her case. " ‘The burden of establishing that an erroneous ruling was prejudicial is on the appellant.’ " Middleton v. Lightfoot, 885 So. 2d 111, 113–14 (Ala. 2003) (quoting Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165, 167 (Ala. 1991) ). Because the mother has failed to meet her burden on this issue, we cannot reverse the judgment on this point.
With regard to child support, the mother argues that the trial court erred in dismissing her action. When the mother rested her case at trial, the father moved to dismiss the child-support action, arguing that the mother had not proven that she had been awarded sole physical custody of the child in the divorce judgment and that the mother had not proven a material change of circumstances to support a child-support modification. The...
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