Pickett v. Pickett

• Citation: 792 So.2d 1124
• Parties: Andrea PICKETT v. Anthony M. PICKETT.
• Decision Date: 20 April 2001
• Court: Alabama Court of Civil Appeals

792 So.2d 1124

Andrea PICKETT v. Anthony M. PICKETT.

2990879.

Court of Civil Appeals of Alabama.

April 20, 2001.

Richard L. Chancey of Ezell & Chancey, L.L.P., Phenix City, for appellant.

Connie Cooper, Phenix City, for appellee.

PER CURIAM.

Andrea Pickett (the "mother") and Anthony M. Pickett (the "father") were divorced in 1993. The mother was awarded custody of the parties' minor child. In October 1999, the father filed a petition to modify the custody order. After receiving ore tenus evidence, the trial court entered a judgment that awarded the father custody of the child, subject to the child's finishing the school year at the school he had attended while residing with the mother. The mother appeals.

There is no transcript of the March 21, 2000, hearing on the father's petition to modify custody. However, the trial court approved a statement of the evidence, pursuant to Rule 10(d), Ala. R.App. P. The mother argues that the statement of evidence is incomplete and that using it as a substitute for a transcript in this case violates her "due process rights guaranteed by the state and federal constitutions." The mother cites no authority to support her argument; thus, she has not complied with Rule 28, Ala. R.App. P. However, out of an abundance of caution, we will consider her request that we remand the case for another trial so that a complete transcript may be developed. The hearing was taped-recorded, but the recording was inaudible. The mother prepared a proposed statement of the evidence, pursuant to Rule 10(d), Ala. R.App. P. The father objected to the mother's statement of the evidence and filed amendments to that statement. The mother then filed a document entitled a "Final Rule 10(d) Statement of the Evidence," which contained her objections to the father's proposed amendments to her Rule 10(d) statement of the evidence. The trial court issued an approved statement of the evidence that adopted the mother's statement of the evidence as amended by most of the father's objections and amendments. See Rule 10(d), Ala. R.App. P.; Bobo v. Bobo, 585 So.2d 54 (Ala.Civ.App.1991).

The mother disagrees with the trial court's approved statement of the evidence. "On review, [this court] will accept the approved statement of the evidence as true." Mobley v. Turner, 346 So.2d 427, 428 (Ala.1977). No Alabama caselaw addresses whether a party to an appeal may challenge a trial court's approved statement of the evidence. Alabama's Rule 10(d), Ala. R.App. P., is equivalent to Rule 10(c), Fed. R.App. P. See Mobley v. Turner, 346 So.2d at 428. There is authority in the federal courts for a challenge of the approved statement of the evidence and for remanding the case for a new trial. See Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d 1210 (9th Cir.1990).

The federal courts allow a challenge to a statement of the evidence. Bergerco, 896 F.2d at 1214-15. If a federal court is faced with such a challenge, it determines "whether a resolution of the disputed factual issues is essential to allow ... meaningful appellate review of the [trial] court's decision." Bergerco, 896 F.2d at 1215. The Bergerco court, after discussing other federal cases involving requests for a new trial based on the lack of an original transcript, explained that an appellant seeking a new trial so that a complete record can be developed must: "1) make a specific allegation of error; 2) show that the defect in the record materially affects the ability of the appeals court to review the alleged error; and 3) show that a Rule 10(c) [Fed. R.App. P.] proceeding has failed or would fail to produce an adequate substitute for the evidence." Bergerco, 896 F.2d at 1217. After setting forth these factors, the Bergerco court stated, "We believe these factors would be presented only in rare circumstances." Id.

In this case, the mother's complaint that the statement of the evidence is incomplete and inadequate does not sufficiently demonstrate how the defect materially affects this court's ability to review the case. We decline, based on the lack of authority in the mother's brief and on the requirements set forth in Bergerco, to remand this case for a new trial.

The trial court's approved statement of the evidence indicates that the parties were divorced in 1993, when the parties' child was three years old. In January 1995, the parties' child began living with the father in the paternal grandparents' home. In the summer of 1995, the father and the child moved out of the paternal grandparents' home. However, the child frequently stayed with the paternal grandparents, particularly when the father had to work.

In January 1996, the mother moved to Montgomery to attend college. The mother states in her Rule 10(d) statement that in September 1996, the parties "agreed" that the child would live with the father while the mother moved to Atlanta to attend college. However, the father's objection to the mother's statement of the evidence regarding that contention states that the mother relinquished custody to him; the father did not state that the parties entered into an alleged temporary agreement regarding custody of the child. The trial court adopted the father's amendment to that portion of the mother's statement of the evidence.

In 1996, the parties obtained a court order that suspended the father's child-support obligation because the child was living with the father; the mother was not ordered to pay child support. The 1996 court order did not address the issue of the custody of the parties' child. The record indicates that the mother visited the child "sporadically, usually every two months," and on birthdays and holidays.

In 1999, the mother moved with her boyfriend to Colorado. In the summer of 1999, the child visited the mother in Colorado. After the summer visitation ended, the mother informed the father that she would not return the child to Alabama. On October 14, 1999, the father filed a petition to modify custody. The trial court conducted a hearing on the father's petition to modify custody, on March 21, 2000. On April 26, 2000, the trial court entered a judgment in which it awarded custody of the child to the father.

Where a trial court makes a custody determination following an ore tenus proceeding, its judgment based on the evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Ex parte Jones, 620 So.2d 4 (Ala.1992); Durham v. Durham, 555 So.2d 1093 (Ala.Civ.App. 1989). The noncustodial parent must show that since the most recent custody order there has been such a material change in circumstances that a change in custody will materially promote the child's best interests and welfare; the noncustodial parent must also demonstrate that the benefits of the change in custody will outweigh the disruptive effect of uprooting the child. Ex parte McLendon, 455 So.2d 863 (Ala.1984). The primary concern in custody cases is the best interests of the child. Brown v. Brown, 602 So.2d 429 (Ala.Civ.App.1992). This court's review of the trial court's judgment modifying custody is limited to determining whether there is evidence to support that judgment. Ex parte Patronas, 693 So.2d 473 (Ala.1997).

"`This case, like all disputed custody cases, turns on the trial court's perception of the evidence. The trial court is in the better position to evaluate the credibility of the witnesses ... and the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.'"

Ex parte Patronas, 693 So.2d at 475 (citations omitted).

In his proposed amendments to the mother's Rule 10(d) statement of the evidence, the father stated that at the conclusion of the hearing on his petition to modify custody, the court had ruled:

"A. That a material change of circumstances had occurred since the last custody order in this cause and that a transfer of custody of the minor child to the [father] would materially promote the child's best interests; and

"B. A material change in circumstances had occurred when the [mother] voluntarily relinquished custody and allowed the minor child to reside with the father...."

The mother objected to that amendment. However, the trial court overruled the mother's objection.

The mother argues that the trial court erred in determining that she had relinquished custody of the child to the father in 1996 and that that action constituted a material change in circumstances that would justify a change in custody pursuant to Ex parte McLendon, supra. The mother, citing Ex parte Couch, 521 So.2d 987 (Ala.1988), argues that an agreement between parents to alter a custody arrangement does not constitute a waiver of the custodial parent's custody rights. See also Curl v. Curl, 526 So.2d 26 (Ala.Civ.App. 1988) (mother, the custodial parent, did not relinquish her right to custody of the parties' children by agreeing to allow the children to live with the father during one school semester). Our supreme court, noting that amicable alterations to custody arrangements can benefit the parties and their children, has declined to discourage parties from entering into temporary custody arrangements by holding that such agreements constitute a waiver of the custodial parent's custody rights. Ex parte Couch, 521 So.2d at 990.

In this case, however, the record contains evidence to support a conclusion that the trial court determined that the parties did not enter into an agreement to temporarily alter the existing custody arrangement. Although the mother claims that the parties "agreed" the child would live with the father while she attended college, the father's objection to that contention indicates that the mother relinquished custody of the child to him. In issuing its approved Rule 10(d) statement...