Nauditt v. Haddock

• Decision Date: 05 December 2003
• Citation: 882 So.2d 364
• Parties: Jeffery L. NAUDITT v. Regina M. Nauditt HADDOCK. Regina M. Nauditt Haddock v. Jeffery L. Nauditt.
• Court: Alabama Court of Civil Appeals

882 So.2d 364

Jeffery L. NAUDITT v. Regina M. Nauditt HADDOCK.

Regina M. Nauditt Haddock v. Jeffery L. Nauditt.

2020579.

Court of Civil Appeals of Alabama.

December 5, 2003.

Michael L. Weathers, Florence, for appellant/cross-appellee Jeffery L. Nauditt.

Lindsey Mussleman Davis of Holt, Mussleman, Holt & Morgan, Florence, for appellee/cross-appellant Regina M. Nauditt.

CRAWLEY, Judge.

Jeffery L. Nauditt ("the father") and Regina M. Nauditt Haddock ("the mother") were divorced in 1998. Pursuant to their divorce judgment, they shared joint custody of their three sons, alternating physical custody each week. In July 2002, the mother remarried. Around that same time, the children spoke with their father about their desire to live full-time with him. The father filed a petition to modify custody, seeking sole physical custody, in August 2002. After a trial, the trial court entered a judgment stating:

"[T]his Court concludes that the recommendations of the Northwest Alabama Children's Advocacy Center are reasonable and offer an adjustment in the time that each parent can spend with the children.

"The evidence presented shows that the children are well adjusted, well behaved, doing excellent work in school, and giving the appearance of thriving; all of this, in spite of the fact that the parents can't seem to communicate or work well together for the betterment of their children."

The judgment adopted the recommendations of the Northwest Alabama Children's Advocacy Center. The report from the Northwest Alabama Children's Advocacy Center stated, in part:

"1. No changes to the joint custody arrangement will be made, as no significant issues were presented that would fall under the guidelines of significant changes that would warrant a change in custody.

"2. A modification as to the current visitation situation as follows: the children would reside with the mother every other Thursday, Friday, Saturday, and Sunday. We are recommending that standard visitation guidelines be followed regarding holidays, birthdays, etc. This would allow the children to be with the mother approximately 1/3 of the time and with the father approximately 2/3 of the time. This is taking into consideration all issues presented by all parties involved."

Both parents appeal from this judgment. The father argues that the trial court erred in not modifying child support despite the fact that, he says, he is, in essence, the sole physical custodian of the children. He also argues that the record does not contain the appropriate child-support forms, which, he says, necessitates a reversal. The mother argues that the trial court erred by modifying the "visitation" provisions of the prior custody judgment because, she says, the father failed to prove a material change in circumstances warranting such a modification. We affirm the judgment.

The mother asserts that the father's arguments on appeal are without merit. She says that the father did not request a modification of child support until he filed his postjudgment motion and that, because of that fact, the modification of child support was not an issue before the trial court. The mother is correct. The father's petition to modify custody alleges that the children expressed a desire to live with him "all of the time" and that he desired that the children live with him "all of the time." The petition sought sole physical custody of the children. The petition does not contain a reference to child support. Interestingly, the mother's answer and counterpetition does request a modification in the amount of child support, in addition to requesting that the trial court award her sole physical custody. At trial, however, the only issue tried was custody, and the testimony and evidence admitted pertained only to that issue. In fact, when the trial court questioned the parties regarding the issues to be tried, the only issue mentioned was child custody.

This court has reversed judgments modifying a child-support obligation "[w]here there is no pleading, either written or oral, seeking modification of the amount of child support, and the issue is not tried by consent of the parties, expressly or impliedly." State ex rel. Vickers v. Vickers, 684 So.2d 1327, 1329 (Ala.Civ.App.1996); see also State ex rel. Thompson v. Thompson, 586 So.2d 7, 8 (Ala.Civ.App.1991)

; and Roberson v. Roberson, 558 So.2d 946, 947 (Ala.Civ.App.1990). Based on the absence of any testimony or evidence of either party's income and on the exchange between the trial court and counsel for the parties at the opening of the trial, it is apparent that the mother did not pursue her request for a modification of child support at trial. If the trial court had entered a judgment modifying the father's existing child-support obligation, this court would have reversed it if the mother had appealed and argued the law set forth above. Accordingly, despite the husband's arguments and his postjudgment submission of evidence relevant to the issue of child support, we cannot reverse the trial court for its failure to modify child support when neither party requested such relief at trial.

The mother's argument on appeal is more complex. She argues in the first instance, in response to the husband's characterization of the trial court's judgment as one granting him sole physical custody, that the trial court's judgment does not truly modify the prior judgment under which the parties were granted joint custody but that it instead only modifies the "visitation" provisions of that judgment. She bases this assertion on the trial judge's statements at trial and on the language in the judgment indicating that the parties' situation had not changed significantly and that the joint-custody arrangement had worked out well and produced well-adjusted children. In addition, she points to the language contained in the report from the Northwest Alabama Children's Advocacy Center, which the trial court adopted in its judgment. That report, as quoted above, indicates that the Center did not recommend a change in the joint-custody arrangement; rather, it urged a change in the "visitation" provisions of the judgment, providing that the mother would have physical custody of the children approximately one-third of the time, while the father would have physical custody two-thirds of the time.

Despite the institution of a joint-custody statute in 1997, see Ala.Code 1975, § 30-3-150 et seq., the bench and bar have not consistently used the appropriate terminology in drafting custody judgments. As we have commented before, the new terms — joint custody, joint legal custody, joint physical custody, sole legal custody, and sole physical custody — are the proper terms to describe the various forms of custody. Although, as a practical matter, this court can easily determine that a judgment granting the parties "joint custody," but giving primary physical custody to the mother is in essence an award of joint legal custody to the parties with a grant of sole physical custody to the mother, see, e.g., Harris v. Harris, 775 So.2d 213, 214 (Ala.Civ.App.1999),

the interchanging of the various terms serves to perpetuate the handling of joint-custody cases under caselaw predating the adoption of our joint-custody statute.

In this case, which involves a true joint-custody arrangement where the parents share both joint legal custody and joint physical custody, see Ala.Code 1975, § 30-3-151(1), we must determine whether a change in the length of one parent's period of physical custody is a change of custody, if it is a change in visitation, or if it is neither of those options. Our joint-custody statute does not expressly answer this question. However, the statute does provide that when one parent is awarded sole physical custody, that parent is favored...