Reeves v. Fancher

• Decision Date: 20 May 2016
• Docket Number: 2140925.
• Citation: 210 So.3d 595
• Parties: Stephanie Spivey Fancher REEVES v. Robert Allen FANCHER.
• Court: Alabama Court of Civil Appeals

210 So.3d 595

Stephanie Spivey Fancher REEVES

v.Robert Allen FANCHER.

2140925.

Court of Civil Appeals of Alabama.

May 20, 2016.

Terinna S. Moon of Moon & Melvin, LLC, Prattville, for appellant.

Rickman E. Williams III and Valerie K. Chittom of Pitts, Williams & Jones, Selma, for appellee.

PER CURIAM.

Robert Allen Fancher ("the father") and Stephanie Spivey Fancher ("the mother") were divorced by an October 14, 2009, judgment of the Dallas Circuit Court ("the trial court"). Pursuant to the divorce judgment, the parties were awarded joint legal and joint physical custody of the minor child born of their marriage.

On June 19, 2014, the mother notified the father pursuant to the requirements of the Alabama Parent–Child Relationship Protection Act ("the Act"), § 30–3–160 to § 30–3–169.10, Ala.Code 1975, that she intended to relocate with the child to Vicksburg, Mississippi, with her new husband. On July 1, 2014, the father filed a petition in the trial court in which he objected to the proposed change in the principal residence of the child and sought an award of custody of the child. See § 30–3–169, Ala.Code 1975. The mother answered the father's July 1, 2014, petition and counterclaimed, also seeking an award of custody of the child.

The trial court conducted an ore tenus hearing on the parties' claims. The record indicates that during the course of the testimony, the hearing was recessed and the parties reached a settlement agreement. On October 6, 2014, the trial court entered a judgment incorporating the terms of that agreement. Pursuant to the October 6, 2014, judgment, the parties were awarded joint legal custody of the child, but the mother was awarded "primary physical custody."¹ The judgment specified that the mother and the child were permitted to relocate to Vicksburg, established a standard schedule of visitation for the father, and ordered the father to pay child support.

On November 6, 2014, the father filed a postjudgment motion in which he asserted arguments pertaining to the income-withholding order entered to enforce his child-support obligation. The trial court denied that motion on November 10, 2014. Neither party appealed.

On December 2, 2014, the father filed what he characterized as a "motion to reconsider" the October 6, 2014, judgment. In that "motion," the father sought an award of custody of the child. On December 4, 2014, the trial court entered an order in which it scheduled the father's "motion" for a hearing. Also on December 4, 2014, the mother moved to vacate the trial court's December 4, 2014, order, arguing that the father's request for a modification of custody required the initiation of a new action and the payment of a filing fee. The record does not indicate that the trial court ruled on the mother's motion to vacate.

However, on December 4, 2014, the father initiated a new modification action in which he sought an award of custody of the child. The trial court conducted an ore tenus hearing on the father's December 2014 modification petition on February 11, 2015. During that hearing, the father offered in support of his custody-modification claim only the testimony of the parties' young child. After the child testified and the father rested his case, the mother moved for a "judgment as a matter of law" or to dismiss the action, arguing that the evidence presented by the father did not meet the evidentiary burden set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), necessary to warrant a modification of the October 6, 2014, judgment that had awarded the mother primary physical custody of the child. The trial court denied the mother's motion. For reasons not explained in the record, the trial court did not enter a judgment until six months later, on August 12, 2015. In that August 12, 2015, judgment, the trial court found, among other things, that there had been a material change in circumstances and awarded custody of the child to the father. The mother timely appealed.

The mother first argues that the trial court erred in failing to grant her motion for a "judgment as a matter of law" following the father's presentation of evidence in his case-in-chief. The trial court received ore tenus evidence without a jury, and, in such a case, a motion for a "judgment as a matter of law" is properly referred to as a motion for a "judgment on partial findings." See Rule 52(c), Ala. R. Civ. P.; Lawson v. Harris Culinary Enters., LLC, 83 So.3d 483, 495 n. 7 (Ala.2011).² See also City of Prattville v. Post, 831 So.2d 622, 627 (Ala.Civ.App.2002) ( "A motion for a ‘judgment as a matter of law’ asserted in a bench trial is actually a motion for a judgment on partial findings by the trial court."). A motion for a judgment as a matter of law, formerly referred to as a motion for a directed verdict, in a nonjury action was formerly treated as a Rule 41(b), Ala. R. Civ. P., motion for an involuntary dismissal until Rule 41(b) was replaced by Rule 52(c), Ala. R. Civ. P. Hales v. Scott, 473 So.2d 1028 (Ala.1985) (treating a "motion for a directed verdict" as a Rule 41(b) motion); Stroupe v. Beasley, 549 So.2d 15, 16–17 (Ala.1989) (same). Our supreme court has explained:

" Rule 52(c), Ala. R. Civ. P., supplanted the involuntary-dismissal procedure in nonjury trials set forth in Rule 41(b), Ala. R. Civ. P. Loggins v. Robinson, 738 So.2d 1268 (Ala.Civ.App.1999). Thus, we will treat ... [a] motion for involuntary dismissal as one for a judgment on partial findings under Rule 52(c). Rule 52(c) provides:

" ‘If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence.’

"Caselaw addressing involuntary dismissals under former Rule 41(b) is equally applicable to a judgment on partial findings entered pursuant to Rule 52(c). Loggins, supra. This court in Loggins set forth the applicable standard of review in such a case, as follows:

" ‘ "[S]ince the Judge is the trier of fact in a nonjury action, he or she may weigh and consider the evidence on a motion for an involuntary dismissal. The normal presumptions of correctness attach to a trial court's ruling on an involuntary dismissal. The trial court's ruling need only be supported by credible evidence and will not be set aside unless it is clearly erroneous or palpably wrong or unjust." ’

" 738 So.2d at 1271, quoting Feaster v. American Liberty Ins. Co., 410 So.2d 399, 402 (Ala.1982)."

King Power Equip., Inc. v. Robinson, 777 So.2d 723, 726 (Ala.Civ.App.2000).

In King Power Equipment, supra, the defendant, King Power Equipment, Inc., argued on appeal, among other things, that the trial court in that case had erred in denying its "motion for involuntary dismissal," which this court noted was properly made pursuant to Rule 52(c), after the close of the plaintiff's evidence. 777 So.2d at 726. In addressing that issue, this court set forth and considered only the evidence that was before the trial court in that case at the time King Power Equipment moved for the judgment on partial findings; in other words, this court analyzed the issue considering only the evidence presented by the plaintiff in her case-in-chief. 777 So.2d at 727 ("When King Power Equipment moved for the involuntary dismissal, the court had the following evidence before it...."). This court ultimately concluded in that case that, "at the time King Power Equipment moved the court for a judgment on partial findings, the court had before it sufficient credible evidence" that supported its denial of that motion and that "the court's denial of King Power Equipment's motion for a judgment on partial findings was not clearly erroneous." 777 So.2d at 727.

In this case, in order to address the mother's argument that the trial court erred in denying her motion for a judgment on partial findings, this court must consider the evidence that was before the trial court at the time the mother made that motion. See King Power Equip., 777 So.2d at 727. In considering that evidence, this court may not reverse the trial court's ruling unless it is clearly erroneous. See King Power Equip., 777 So.2d at 727.

The October 6, 2014, judgment that the father sought to modify awarded the mother primary physical custody of the child. Accordingly, in order to prevail on a claim seeking to modify that custody award, the father was required to meet the McLendon standard:

"A parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon. Under that standard, the parent seeking to modify custody of a child must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the child's best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra. A parent seeking to modify a previous custody order bears a heavy burden of proof. Vick v. Vick, 688 So.2d 852 (Ala.Civ.App.1997)."

Adams v. Adams, 21 So.3d 1247, 1252 (Ala.Civ.App.2009).

In support of his custody-modification claim, the father presented as evidence the testimony of only one witness, the parties' minor child, who was nine years old at the time of the February 11, 2015, hearing; after the child finished testifying, the father rested his case. The transcript indicates that the father's attorney, in his direct examination, repeatedly had to remind the child to answer out loud; the child repeatedly either nodded or shook her head or failed to respond to questioning. The vast majority of the responses the child did make during the father's direct examination were "yes" or "no"...