Mcculloch v. Campbell

• Decision Date: 17 September 2010
• Docket Number: 2090169.
• Citation: 60 So.3d 909
• Parties: William McCULLOCHv.Jennifer McCulloch CAMPBELL.
• Court: Alabama Court of Civil Appeals

60 So.3d 909

William McCULLOCH

v.Jennifer McCulloch CAMPBELL.

2090169.

Court of Civil Appeals of Alabama.

Sept. 17, 2010.

J.R. Herring, Dothan, for appellant.Robert H. Brogden, Ozark, for appellee.

MOORE, Judge.

William McCulloch (“the father”) appeals from a judgment transferring custody of B.M. and N.M. (hereinafter sometimes referred to collectively as “the children”) to Jennifer McCulloch Campbell (“the mother”). We reverse.

Background

The Dale Circuit Court (“the trial court”) entered a judgment divorcing the father and the mother on June 6, 2003. The trial court awarded the parties joint legal custody of the two children born of their marriage, with the father receiving primary physical custody of the children and the mother receiving specified visitation rights.

In February 2008, the father, who was an active-duty member of the United States Army, notified the mother he would be deploying to Iraq in May 2008. Shortly before the father's deployment, the mother petitioned to modify custody of the children. On May 5, 2008, the trial court awarded the mother “pendente lite care, custody and control of the children pending further orders of the court.” The mother traveled to Michigan to gain custody of the children from the children's paternal grandparents, with whom the father had left the children. The children returned with the mother to Alabama, where they attended the last two weeks of the 2007–2008 school year. The children remained in Alabama with the mother through the summer and into the following school year.

On February 11, 2009, the father moved to dissolve the pendente lite custody order, asserting that he was scheduled to return from his military tour on April 4, 2009. The trial court denied that motion. On April 30, 2009, the father again moved the trial court to dissolve the pendente lite custody order on the ground that his military service in Iraq had ended. The trial court denied that motion, noting that a final hearing on the mother's modification petition was approximately one month away.

The trial court held a final hearing on the mother's modification petition on June 10, 2009; the trial court received ore tenus evidence at that hearing. On August 10, 2009, the trial court entered its final judgment. In that judgment, the trial court acknowledged that the mother bore the burden of meeting the standard for modifying custody set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984). That standard requires

“ ‘the parent seeking a custody change to demonstrate that a material change in circumstances has occurred since the previous judgment, that the child's best interests will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody.’ ”

C.D.K.S. v. K.W.K., 40 So.3d 736, 739 (Ala.Civ.App.2009) (quoting Dean v. Dean, 998 So.2d 1060, 1065 (Ala.Civ.App.2008)).

In its final judgment, the trial court found that, since the last custody determination, the mother's life had significantly improved and that the parties' son had developed “mental health concerns” that were previously unknown. The trial court held that the counseling and therapy the son had received while in the pendente lite custody of the mother had “greatly improved [the son's] demeanor” and had diminished the physical manifestation of his mental-health problems and that it would be counterproductive to his progress to return the son to the custody of the father. The trial court further concluded that both children were excited about their new schools, that the mother's work schedule allowed her more time to spend with the children than the father's schedule would allow, and that there was no compelling reason to separate the children. In addressing whether the benefits of a change in custody would outweigh the disruptive effects resulting from the change, the trial court stated:

“In reviewing the mother's standard of proof the court finds that the facts of this case are somewhat different from the usual custody modification case in that because of the father's military deployment the children are presently in the home and under the care of the parent seeking to modify custody. Therefore it is the court's belief that if the mother's petition is granted ... there will be little, if any, disruptive effect of changing custody. Stated differently if the court finds that the mother has met her burden of proof there will be no change in the children's physical residence or care and they will remain in the same care they have been in for the last fifteen months.”

The trial court ultimately concluded that the mother had met her burden of proof by demonstrating that “there has been a material change in circumstances; that the good of the change will offset any disruptive effect, if any, and that the change will materially promote the children's best interests.”

On September 4, 2009, the father moved to alter, amend, or vacate the judgment; on that same date, the father separately moved for a new trial. On October 5, 2009, the trial court denied the father's request for a new trial, but it granted in part the father's motion to alter, amend, or vacate the judgment. The trial court amended the visitation awarded to the father and amended certain other rights and responsibilities set forth in the trial court's August 10, 2009, judgment; the trial court denied all other aspects of the father's motion to alter, amend or vacate. The father timely filed his notice of appeal to this court.

I. Rule 10(d), Ala. R.App. P., Statement of the Evidence

On his notice of appeal, the father indicated that a transcript of the proceedings in the trial court was unavailable and that a statement of the evidence would be provided, pursuant to Rule 10(d), Ala. R.App. P. The trial court ultimately filed a statement of the evidence with this court. However, the father asserts that the trial court did not substantially comply with Rule 10(d) in providing that statement of the evidence. Rule 10(d) provides:

“If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. If the appellant prepares such a statement, the appellant shall serve it on the appellee within 28 days (4 weeks) after filing the notice of appeal; the appellee, within 14 days (2 weeks) after service, may serve on the appellant objections or proposed amendments to the statement. If the appellee serves no objection or proposed amendments then, within 21 days (3 weeks) after the statement was served on the appellee, the appellant shall file the statement with the trial court for approval. If the appellee serves on the appellant any objections or proposed amendments, then, within 7 days (1 week) after service, the appellant shall file the statement and any objections or proposed amendments with the trial court for settlement and approval. Within 21 days (3 weeks) after the filing, the trial court shall rule, settling any questions regarding the objections and proposed amendments, and issuing an approved statement of the evidence or proceedings. The statement, either as approved by the court or as issued by the court after its ruling, shall be filed with the clerk of the trial court, who shall include it in the record on appeal.”

On December 7, 2009, the father served the mother with his statement of the evidence. On that same date, the father filed, by facsimile transmission, his statement of the evidence with the trial court. The following day, the father filed with the trial court, presumably by mail or by hand delivery, another copy of his statement of the evidence.

On December 22, 2009, the mother submitted her “Objections to Statement of Evidence Filed by Father.” In her filing, the mother indicated that she objected to the father's entire statement of the evidence and that, because of the breadth of her objections, she could not provide a line-by-line objection to the father's proposed statement. As a result, the mother provided her own 24–page version of the evidence.

On December 28, 2009, the father again filed his “Notice of Filing Statement of the Evidence” with the trial court. In his filing, the father stated that the mother,

“having failed to file objections or proposed amendments to [the father's] statement of the evidence filed on December 7, 2009, as provided by ... Rule [10(d), Ala. R.App. P.], [the father] hereby submits said statement of the evidence for approval by the trial court.”

The father did not include in his statement any of the mother's objections or her version of the evidence.

The mother moved to strike the father's December 28, 2009, notice of filing, asserting that she had fully complied with Rule 10(d). The mother asserted that her response to the father's statement of the evidence had been timely filed because the father's facsimile filing on December 7, 2009, was not a valid filing under the Alabama Rules of Civil Procedure and that the mother's time for response ran from December 8, 2009, which, she asserted, was the date the father properly filed his statement of the evidence with the trial court.

In response to the parties' multiple filings and their dispute as to the evidence presented at the trial, the trial court prepared its own statement of the evidence. On February 4, 2010, the father moved to supplement the trial court's statement of the evidence, pursuant to Rule 10(f), Ala. R.App. P. Although the mother objected to that motion, the trial court, relying on Bobo v. Bobo, 585 So.2d 54 (Ala.Civ.App.1991) (implicitly recognizing that a trial court's statement of the evidence, prepared pursuant to Rule 10(d), Ala. R.App. P., may be supplemented pursuant to Rule 10(f), Ala. R.App. P.), granted the father's motion and ordered the mother to...