Nave v. Nave

• Citation: 942 So.2d 372
• Decision Date: 30 December 2005
• Docket Number: 2040252.
• Parties: Clayton J. NAVE, Jr. v. Angela D. NAVE.
• Court: Alabama Court of Civil Appeals

Page 372

942 So.2d 372

Clayton J. NAVE, Jr. v. Angela D. NAVE.

2040252.

Court of Civil Appeals of Alabama.

December 30, 2005.

Rehearing Denied March 10, 2006.

Certiorari Denied May 12, 2006 Alabama Supreme Court 1050852.

Tiffin M. Taylor, Huntsville, for appellant.

Norman Bradley, Jr., Huntsville, for appellee.

MURDOCK, Judge.

Clayton J. Nave, Jr. ("the father"), appeals from a judgment denying his request for a modification of custody of the parties' two younger children, holding him in contempt for failing to pay child support and certain college expenses of Angela D. Nave ("the mother"), and denying his request for retroactive child support.

The parties were divorced in November 2000. Pursuant to an agreement of the parties, the divorce judgment provided that the parties would have joint legal and physical custody of the parties' three children, two sons who were 15 and 10 years of age, respectively, at the time of the trial of this action in October 2004, and a daughter who was 8 years of age at that time. The agreement provided that the children would reside with each parent during alternating months; that the father would pay the mother child support in the amount of $1,200 per month until six months after the anticipated date of the mother's graduation from a technical college; and that the father would pay the cost of the tuition and books associated with the mother's course of study at the technical college.

At the time the divorce judgment was entered, the father was employed as a design drafter at an aerospace firm, earning in excess of $100,000 per year. In approximately April 2003, the father was laid off from his employment and was unemployed for approximately one year. By the time of the trial in this matter in October 2004, the father was again employed as a design drafter, earning approximately $54,000 per year.

At the time the divorce judgment was entered, the mother was attending J.F. Drake State Technical College ("J.F. Drake") and was studying computer information systems technology. In May 2002, the mother completed her course work and received an associate degree in applied technology (a two-year degree). At the time of the trial in this matter in October 2004, the mother was working part-time for a computer firm as a systems engineer, earning approximately $33,000 per year. She was also attending Athens State University and pursuing a bachelor degree.

The parties live in the same community, and the children are able to attend the same school and participate in the same activities regardless of which parent has physical custody during a given month. Since the divorce, the children have resided with the parents in alternating months as provided in the divorce judgment, but the parents have demonstrated an inability to cooperate in raising the children. In general, the father refuses to talk to the mother by telephone, and the father has, on several occasions, refused to accept certified letters from her. The trial court observed, however, that the parties were equally responsible for the absence of effective communication between the parties.

In December 2002, the mother determined that the older son, who was then 13 years old, was too rebellious for her to control, and she abruptly decided to grant the son his wish to live with the father. Accordingly, the mother took the older son to his paternal grandmother's house and left him with the grandmother until the father could pick him up later that same day. Since that day, the older son has lived exclusively with the father and has had no contact with the mother except in court. The mother has expressed a desire to restore the relationship, but the son has refused all contact with the mother.

In January 2003, the father filed a petition to modify the custody of the children, in which he alleged a material change of circumstances, including use of marijuana and neglect of the children by the mother. The petition requested sole custody of the children and that the mother be ordered to pay child support. In April 2003, the mother filed an answer and counterclaim that requested that she be awarded sole custody of the two younger children; that the older son be allowed to live with the father; that the father be required to pay child support; and that the father be held in contempt for failing to pay child support and for violating certain other provisions of the divorce judgment.

A pendente lite hearing was held on April 17 and 23, 2003, during which the trial court heard ore tenus testimony from the parties, the older son, and others. The trial court entered a pendente lite order, granting the father sole custody of the oldest child, leaving the custody of the two younger children unchanged, providing for telephone contact between the parties and the children, requiring both parties to undergo anger-management counseling, and requiring both parties to submit to periodic drug tests.

The action was tried ore tenus on October 19 and 20, 2004, and the trial court heard testimony from the parties, the parties' two older children, teachers, school counselors, friends of the parties, and others. On November 5, 2004, the trial court entered a judgment that awarded the father sole legal and physical custody of the older son; continued the joint physical and legal custody of the two younger children, with the children living with each parent during alternating months; ordered the mother to pay prospective child support of $424.26 per month with respect to the older son; found the father in contempt for failing to pay child support and certain college expenses of the mother; sentenced the father to 5 days of incarceration for each of 8 instances of contempt, or a total of 40 days incarceration, and suspended the sentence for 2 years; and entered an award against the father totaling $10,873.68 with respect to the past-due child-support obligation and unpaid college expenses. The father did not file a timely postjudgment motion, but he did file a motion to set a supersedeas bond that was denied as untimely filed. The father appealed.

The father contends that the trial court erred (1) in failing to award him sole custody of the two younger children, (2) in finding him in contempt for failure to pay child support, (3) in finding him in contempt for failure to pay certain of the mother's college expenses, and (4) in failing to award him retroactive child support with respect to the older son.

The touchstone for custody decisions is the "welfare and best interests of the child." Willing v. Willing, 655 So.2d 1064, 1065 (Ala.Civ.App.1995). 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).

To the extent that the trial court did not make detailed written findings of fact, we must assume that "`the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.'" Ex parte Fann, 810 So.2d at 636 (quoting Lemon v. Golf Terrace Owners Ass'n, 611 So.2d 263, 265 (Ala.1992)). Moreover, we note that it is not the role of the appellate courts to reweigh the evidence. Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

Because the parties had joint custody, this case is governed by Ex parte Couch, 521 So.2d 987 (Ala.1988), which held that the best-interest standard applies to the modification of an existing joint-custody arrangement. However, although the material-promotion standard of Ex parte McLendon, 455 So.2d 863, 866 (Ala.1984), does not apply, the father is required to prove that "a change in circumstances has occurred such that it was in the [children's] best interests that the [judgment] be modified to transfer [sole] physical custody." Means v. Means, 512 So.2d 1386, 1388 (Ala.Civ.App.1987).

The father argues that he should be awarded sole custody of the two younger children because (1) the mother was frequently using marijuana, (2) the mother neglected the children and was not a proper parent, and (3) the joint-custody arrangement is untenable and is not in the best interest of the children.

We have reviewed the record and must conclude that there is substantial evidence to support the trial court's judgment on this issue. There was conflicting evidence of drug use by both parties. The evidence in the record shows, however, that, between the pendente lite hearing in April 2003 and the trial in October 2004, both parties took several drug tests, all of which were negative. Thus, the trial court could reasonably have found that the mother had stopped using drugs by the time of the trial.

The father also presented evidence of the mother's shortcomings as a parent, including the mother's lack of participation in, or indifference to, the children's school and extracurricular activities, and the mother's general failure to properly care for the children's physical needs. The mother presented evidence, including testimony from her friends and coworkers, showing that she was...