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Childers v. Brewer

Alabama Court of Civil Appeals

April 3, 2015

Lori Childers
Chad Brewer

Appeal from Lawrence Circuit Court (DR-06-215.01)

THOMAS, Judge.

Lori Childers ("the mother") and Chad Brewer ("the father") were divorced by a judgment entered by the Lawrence Circuit Court in 2007. There is one child of the marriage ("the child"), who was born in 2003. The mother has one other child ("the half sister") with a different father. By incorporating the parties' mediation agreement into the divorce judgment, the circuit court had awarded the parties joint "care, custody, and control" of the child but had awarded the mother primary physical custody.[1] The divorce judgment also included a paragraph entitled "Education, health[, ] and welfare of the child" ("the education clause"), which provided in pertinent part: "All questions pertaining to the education, health, summer activities[, ] and welfare of [the child] shall be decided by [the father] and [the mother] jointly and each shall consult the other as often as it may be necessary regarding all such matters." Despite the provisions of the divorce judgment, for a period of years the parties exercised true joint custody. The mother resided in Moulton, the father resided seven miles outside Moulton, and the child attended Moulton Elementary School. By a letter dated February 27, 2013, the mother informed the father that, on May 24, 2013, she intended to relocate the child to Hartselle and that the child would attend Cotaco School in Somerville.

On March 26, 2013, the father filed petitions objecting to the relocation of the child and seeking to prevent the mother from relocating the child. The father requested an order awarding him custody of the child, ordering the mother to pay child support, and awarding the mother visitation. On March 28, 2013, the mother filed a response in opposition to the father's petitions, asserting that she was the physical custodian of the child and that certain provisions of the Alabama Parent-Child Relationship Protection Act ("the Act"), codified at § 30–3–160 et seq., Ala. Code 1975, did not apply because her relocation was within Alabama and was only 41 miles from the father's residence.[2] Thus, the mother asserted, she was entitled to relocate the child as long as she kept the father apprised of certain relocation information. On April 27, 2013, the mother married Ashley Kip Childers ("Kip"), and she subsequently relocated the child to Hartselle.

On August 6, 2013, the father filed a second petition seeking a custody modification in which he asserted that the child had attended, and had received individualized attention at, Moulton Elementary School since kindergarten. The father argued that the mother's marriage and the child's relocation that resulted in a change of schools represented material changes in circumstances and that a transfer of the child's primary physical custody to the father was in the child's best interest. Furthermore, the father alleged that the child had been left alone with Kip's nephew ("the nephew") "in recent weeks." According to the father, there was an indication that, in the past, the nephew had been accused of sexual abuse of Kip's then 3-year-old son ("the stepson"). The father requested an award of primary physical custody of the child and an order requiring the child to remain enrolled in Moulton Elementary School. The father included unverified letters from the Moulton Elementary School principal and its counselor indicating that it would be detrimental to the child to change schools.[3]

A trial was held on September 24, 2013, at which the circuit court heard ore tenus testimony. At that time the child was enrolled in Cotaco School. On May 19, 2014, the circuit court entered a judgment in which it awarded the father primary physical custody of the child, awarded the mother specific visitation with the child, terminated the father's child-support obligation, ordered the mother to pay the father $215.30 per month in child support, and denied all other relief requested. On May 28, 2014, the mother filed a motion to alter, amend, or vacate the modification judgment, and she requested a hearing. On July 29, 2014, the mother filed a motion asserting that the child desired to testify and requested a hearing to receive the child's testimony, to which the father filed an objection. The circuit court denied the mother's request, but permitted the mother to submit an affidavit including a proffer of the child's intended testimony; no such affidavit appears in the record. The mother's postjudgment motion was denied by operation of law on August 26, 2014.

On October 3, 2014, the mother filed a timely notice of appeal seeking this court's review of five issues -- whether the circuit court erred by failing to require the father to meet the custody-modification burden set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), by failing to properly apply the provisions of the Act, by failing to properly interpret the education clause, by awarding the mother standard visitation, and by failing to subtract the cost of the child's health-care insurance that was paid by Kip.

"It is well settled that when a trial court receives ore tenus evidence in a child-custody-modification proceeding and bases its judgment on its findings of fact, that judgment will not be reversed absent an abuse of discretion or a showing that the findings are plainly and palpably wrong. West v. Rambo, 786 So.2d 1138 (Ala. Civ. App. 2000); E.M.C. v. K.C.Y., 735 So.2d 1225 (Ala. Civ. App. 1999). A judgment based on ore tenus evidence is presumed correct and will be affirmed if supported by competent evidence. N.G. v. L.A., 790 So.2d 262 (Ala. Civ. App. 2001)."

Smith v. Smith, 865 So.2d 1207, 1209 (Ala. Civ. App. 2003).

The father testified that, before the mother relocated the child, the parties' relationship was "as good as it could be." He said that the parties had easily cooperated and that they, along with members of the paternal family, had, for example, eaten dinner together to celebrate the child's birthday. He said that he had never failed to meet his child-support obligation. At the time of the trial the child resided with the mother in Hartselle in a three-bedroom trailer on Kip's family's property; the child shared a bedroom with the half sister. The mother said that Kip would someday inherit the property and that they planned to build a house in the future. The father testified that he lived in a two-bedroom trailer and that, although the child had her own room at his residence, she slept in the same bed in which he slept. The mother said that the child had never slept in the same bed with her. The mother agreed that the father was a good father, and the father agreed that the mother was a good person, but, according to the father, there was no positive reason for the relocation.

The child was enrolled as a fourth-grade student at Cotaco School, which was located eight miles from the mother's residence. The father testified that he desired that the child return to Moulton Elementary School because that was where the child's family was known and where a "special program" had been developed to help the child with her reading skills. Paige Terry, the principal of Moulton Elementary School, testified that the child had been diagnosed with a learning disability that had affected her reading ability and that an individualized educational plan ("IEP") had been developed and implemented for the child at Moulton Elementary School. Terry said that Cotaco School also had a copy of the child's IEP and that its staff also had the ability to implement the child's IEP. The mother testified that Cotaco School had implemented the child's IEP, that the child had made friends, and that the child wished to remain at Cotaco School. Don Murphy, the retired superintendent of education of Morgan County, testified that Cotaco School was "very good" and that the school's test scores were "always good, " "in the top, " or "considerably above average." He said that a specific state evaluation of which he was aware had indicated that Moulton Elementary School had not performed at a proficient level in the area of special education.[4] Terry denied that Moulton Elementary School had performed at a less than proficient level in any area. Terry said that the child had a "strong support system" at Moulton Elementary School and that the parties had been beneficially involved in the child's education in the past.

The father testified that, after the child relocated, the child's relationships with him and with other relatives had changed because she did not spend the same amount of time with them as she had in the past. The father testified that many of the child's relatives, including both sets of grandparents, resided within a seven-mile radius of Moulton. The father testified that, before the mother had relocated the child, the child had enjoyed daily interaction with her paternal grandparents and two sets of paternal aunts and uncles at school and at the paternal grandfather's business that was located one block from the school.[5] According to the father, he had incurred $600 per month in additional gasoline expenses for traveling to pick up the child for his visitation periods and that the child was burdened by "that long of a trip." The mother, who was unemployed, testified that she had refused to meet the father at a halfway point because, she said, if she had a job, doing so would be impossible.

The mother admitted that the nephew had been accused of sexually abusing the stepson, but that the nephew had not been prosecuted, and that she was comfortable with the presence of the nephew. Steve Shadden, the stepson's maternal grandfather, testified that the stepson had been sexually abused when he was three years old.[6] Shadden said that he and several other family members had taken the stepson to a children's clinic upon his return from a visit with Kip because they had observed a severe rash and swelling of the child's rectum. Although Shadden admitted that there was a dispute regarding who had sexually abused the stepson, Shadden said that he had observed that the stepson was "scared to death" of the nephew. Kip testified that the alleged sexual abuse had not happened. Kip intimated that the stepson's maternal family had made a false allegation when he and the stepson's mother were in the midst of a divorce; Kip said:

"[A]nd we all know why it's brought up now."[7] Kip said that the stepson still saw the nephew at family occasions and that the stepson was not afraid of the nephew. When asked if the nephew would visit the house when the child was present, the Kip said: "Yeah, he could come. I don't have any problem with him. Never had any problem with him after I got all the ...

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