Morgan v. Morgan

• Decision Date: 16 March 2007
• Docket Number: No. 2050348.,2050348.
• Citation: 964 So.2d 24
• Parties: Mark S. MORGAN v. Heidi S. MORGAN.
• Court: Alabama Court of Civil Appeals

964 So.2d 24

Mark S. MORGAN v. Heidi S. MORGAN.

No. 2050348.

Court of Civil Appeals of Alabama.

March 16, 2007.

William J. Moore, Enterprise, for appellant.

Robert H. Brogden, Ozark, for appellee.

MOORE, Judge.

Mark S. Morgan ("the father") appeals from the Dale Circuit Court's judgment modifying the parties' judgment of divorce. The father alleges multiple errors by the trial court. We affirm in part, reverse in part, and remand.

The Dale Circuit Court entered a judgment divorcing the father and Heidi S. Morgan ("the mother") on November 9, 2004. The court incorporated into its judgment an agreement of the parties, which had been entered into on November 8, 2004. The agreement dictated that the parties would have joint legal custody and joint physical custody of the only child born of the marriage. The parties also agreed that the father would pay the mother $500 per month in child support that the father would assume responsibility for all of the parties' outstanding joint living expenses at the time of the divorce; that a jointly owned house in North Carolina would be sold and the proceeds applied to the outstanding debts of the parties; that the father would pay $4,000 to the mother as a property settlement to be used as a down payment toward the purchase of a new house; and that no alimony was to be awarded to either party. The agreement made no provision for the future education of the child.

On March 3, 2005, the father filed a petition to modify the divorce judgment, alleging a change in circumstances and requesting that he be awarded sole physical custody of the child. The mother filed an answer and a counterclaim on March 9, 2005, alleging that there had been a material change in circumstances and seeking sole legal custody and sole physical permanent custody of the child and increased child support. The mother also filed a motion for emergency relief on March 9, 2005, asking the court to order that the child be placed in public school and specifying a proposed schedule regarding the child's visitation with each parent; the father filed a response objecting to the relief sought in the mother's motion for emergency relief. The court entered a series of pendente lite orders regarding the issues raised by the parties before entering a final judgment on October 26, 2005, in which the court ordered that the parties should continue to have joint legal custody of the child; vested sole physical custody in the mother, subject to visitation by the father; increased the father's child-support obligation; and required the child to enroll in public school. The father filed two postjudgment motions, which the trial court denied. The father appeals, asserting that the trial court erred (1) by requiring the child to attend public school, (2) by modifying his child-support obligation, (3) by awarding sole physical custody of the child to the mother; and (4) by failing to disclose that the trial judge had formerly been a partner in private practice with the mother's counsel.

Standard of Review

This court has limited review in custody matters when the evidence was presented ore tenus. Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App. 1993). In determining matters of child custody, a trial court is afforded great discretion; its judgment is "presumed correct and will not be disturbed on appeal absent an abuse of discretion or where it is shown to be plainly and palpably wrong." Id. at 434.

Modification of child custody is a matter that falls within the discretion of the trial court. Hester v. Hester, 460 So.2d 1305, 1306 (Ala.Civ.App.1984). In custody cases in which custody has not previously been determined by the court, the appropriate standard of review is the best interest of the child. Ex parte Couch, 521 So.2d 987, 989 (Ala.1988). This standard extends to cases in which the trial court's judgment incorporates an agreement to share custody entered into between the parties. See New v. McCullar, 955 So.2d 431, 435 (Ala.Civ.App.2006).

Additionally, matters of child support, including modifications thereof, are within the discretion of the trial court and "will not be disturbed on appeal, absent a showing that the ruling is not supported by the evidence and, thus, is plainly and palpably wrong." Spears v. Spears, 903 So.2d 135, 136 (Ala.Civ.App.2004).

I.

The father initially argues that the trial court exceeded its discretion in ordering that the child attend a public school. Specifically, he claims that the "trial court stepped in the shoes of the parents and decided what school was proper for the minor child" and thereby superseded "the rights given to the parents by the Constitution of the United States" to choose what school their child would attend. The father does not argue that the trial court erroneously concluded that the child should attend public school; rather, he argues that the trial court had no authority to even consider the issue. In essence, the father argues that the trial court had no subject-matter jurisdiction over the dispute between the parents regarding the education of their child.

The father filed an objection to the trial court's pendente lite order requiring the child to attend public school, but he did not argue that the trial court lacked jurisdiction over the matter. He also failed to raise the argument in his postjudgment motions. However, challenges to subjectmatter jurisdiction may be raised for the first time on appeal, because "a lack of jurisdiction cannot be waived." Takao v. Zoning Bd. of Adjustment of Birmingham, 656 So.2d 873, 874 (Ala.Civ.App. 1995).

The facts pertinent to this issue are as follows. The mother and the father agreed to homeschool the child beginning in August 2004. Their decision was based largely on the fact that the child was diagnosed with attention-deficit/hyperactivity disorder and post-traumatic stress disorder, but it was also based on the mother's belief that the child's public-school teacher at the time did not seem concerned about the child's emotional needs. From August until December 2004, the mother directed the child's homeschooling, with the father tutoring him only in math. At that time, the mother was engaged in part-time employment that began at 3:00 p.m. Beginning in January 2005, the mother began working full-time, and the father took over the child's homeschooling. (R. 118). On March 9, 2005, the mother filed a motion requesting that the child be placed in public school because he could no longer be adequately homeschooled due to the working schedules of the parents. On March 30, 2005, the trial court heard ore tenus evidence regarding the motion. The father testified that the child was doing much better in homeschooling than he had done at public school. He stated that he did not consider it to be in the best interest of the child to stop homeschooling and to resume the child's attendance at public school due to the parents' work schedules. On the other hand, the mother stated that she believed the child would benefit from enrolling in public school. She testified that the parents' work schedules did not give them ample opportunity to adequately homeschool the child and that the child would advance socially by being around other children. The mother testified that since March 2, 2005, the child had been doing very little homeschooling. The child testified that he was up-to-date on his school work, that he was happy with homeschooling, and that he did not want to go to public school because of troubles he had had in the past in public school. He further testified that he did not mind being alone at times when he would normally be in school and that he still mingled with friends in a nonschool environment. He believed that his father was homeschooling him as well as his mother had. He also stated that he would be willing to go back to public school and that he felt he would do well there.

At the conclusion of the hearing, counsel for both parties asked the court to postpone any decision on the change-of-school issue because only two months remained in the academic year. Accordingly, the court issued a pendente lite order reserving a ruling on the issue until after the final hearing in this matter.

On June 28, 2005, the trial court set the matter for a final hearing to take place on September 6, 2005. The mother moved the trial court to expedite the final hearing because public school was set to commence on August 8, 2005. Instead, on July 6, 2005, the court entered another pendente lite order in which it concluded that it had heard sufficient evidence to make a determination regarding the school issue. The court ordered the child to be enrolled in public school, pending the final hearing and the entry of further orders of the court. When the father objected to this order, the trial court set a hearing on the matter for August 12, 2005. The court subsequently ordered that it would hear the father's objection to the July 6, 2005, order at the final hearing, which had been postponed to October 5, 2005.

On October 5, 2005, the trial court conducted the final ore tenus hearing in this case. At that hearing, the father testified that the child had enrolled in public school as directed and seemed to be doing well, although several of his friends had been expelled for drug use. Nevertheless, he still wanted to homeschool the child. The mother testified that the child, who had been homeschooled only during his seventh-grade year, had failed the seventh-grade math and language placement tests; she stated that the child had been placed in the eighth-grade class based on his honor-roll performance in the sixth grade. Although he thought he had done an excellent job tutoring the child, the father was not aware that the child had failed the seventh-grade math and language placement tests. One of the child's teachers testified that the child had adjusted to public school, was making good grades, and had friends. The child...