July 17, 2015
Chester W. Matthews
from Elmore Circuit Court. (DR-12-118.02).
Judge. Thompson, P.J., and Thomas, Moore, and Donaldson, JJ.,
Ingram (" the mother" ) appeals from a judgment of
the Elmore Circuit Court (" the trial court" )
modifying a previous custody judgment, which had awarded the
mother sole legal and physical custody of the minor child
(" the child" ) of the mother and Chester W.
Matthews (" the father" ). We reverse the judgment
of the trial court and remand the cause.
and Procedural History
mother and the father were divorced pursuant to a judgment
entered by the trial court in November 2012 (" the
divorce judgment" ). The child was six years old when
the divorce judgment was entered. The divorce judgment, which
was based upon an agreement between the parties, awarded the
mother sole legal and physical custody of the child and
ordered the father to pay child support. In addition, the
divorce judgment stated that the father " remains a
credible threat to the physical safety of the [mother] and
that the [mother] has been the victim of a history of
domestic violence and abuse." Accordingly, the divorce
judgment " permanently restrained and enjoined [the
father] from engaging in abusive conduct toward the
[mother]." The divorce judgment also awarded the father
weekend-visitation rights with respect to the child, although
the divorce judgment stated that the father's visitations
were to be supervised for approximately one month after the
entry of the divorce judgment and prohibited the father from
allowing the child to be in the presence of certain named
to the father, in October 2013, the mother and the father
began living together again in an attempt to reconcile. The
mother, on the other hand, testified that, at that time, she
and the father began living in independent portions of the
same duplex house and that she had lived in that house only
because the child " needed a dad."
mother and the father separated again in January 2014, at
which time the mother and the child moved out of the duplex
and onto property owned by the mother's parents ("
the maternal grandparents" ). According to the father,
the child began living in a house with the maternal
grandparents, while the mother began living in a mobile home
on the maternal grandparents' property. The mother
admitted at the trial that she had lived in the mobile home
at one point, but she stated that the mobile home had since
been sold and that she and the child had been living together
in the maternal grandparents' house for eight months. The
mother testified that, when she and the father were married,
they had lived " a little bit of everywhere,"
including in the maternal grandparents' home. The
mother's father (" the maternal grandfather" )
confirmed that the child had " always lived with [the]
mother" and that, during some of that time, they had
lived with the maternal grandparents.
February 2014, the maternal grandfather filed a pro se
petition in the trial court, in which he requested "
full legal and physical custody" of the child. In his
petition, the maternal grandfather explained that awarding
him custody of the child would qualify the child for "
college benefits" through the United States Army, of
which the maternal grandfather is a veteran. Attached to the
maternal grandfather's petition was an affidavit that had
been executed by the mother, in which the
mother stated that she " agree[d] with the petition that
[the maternal grandfather had filed] for better education and
more secur[ity] in [the child's] future."
maternal grandfather later testified that a counselor
employed by the Department of Veterans Affairs had
recommended to the maternal grandfather that he should
attempt to gain custody of the child so that the child could
be claimed as the maternal grandfather's dependent and
receive government benefits from the military. Both the
maternal grandfather and the mother testified that they had
intended for the maternal grandfather to request that he and
the mother share joint custody of the child, and the mother
testified that the underlying purpose of the petition had
been simply to help provide for the child's future
mother testified that the child's past and present needs
had been, and were being, met and that the maternal
grandfather's petition was not filed because the child
had been deprived of any necessities. Although the maternal
grandfather testified that there had never been a time that
the mother was unable to provide for the child, he did
testify that he had filed the petition, in part, " to
help financially with supporting [the child] because his
child support is always late." The maternal grandfather
testified that the government benefits would have come in the
form of a check in the child's name and would have been
placed in a separate account. The maternal grandfather's
petition was dismissed before the trial took place in this
April 2014, the father filed his own pro se petition
requesting that the trial court award him custody of the
child. In that petition, the father asserted that he loved
the child, that he had supported the child since the
child's birth, and that, " if [the] mother
doesn't want [the child]," then the father did.
After engaging legal counsel, the father later amended his
petition to assert that a change in circumstances justified
modification of the custody provisions in the divorce
judgment. Specifically, the father pointed out in his amended
petition that the mother had consented to a petition to award
the maternal grandfather custody of the child, and the father
asserted that the mother " is no longer able or willing
to care for [the child]."
after filing his original petition requesting an award of
custody, the father moved to Florida where, at the time of
the trial in this matter in September 2014, the father lived
in a three-bedroom, one-bathroom house with his sister.
According to the father's testimony and other filings in
this matter, the father's new home in Florida is
approximately 600 miles from where the mother and the child
were residing at the time of the trial. The father, however,
claimed that he believed his sister's home is
approximately a two-hour drive from some unnamed members of
the mother's family.
father testified that, at the time of the trial, he had been
working as a welder for one month and that, before that time,
he had worked at various other jobs he had obtained through a
temporary-employment agency. There is no testimony in the
record regarding how much income the father earns as a welder
or how much he earned when the parties were divorced.
father also testified that his sister's house is big
enough for the child, that he is able to provide the child
with the care he
needs, and that he had heard that the school system in the
relevant area in Florida was " excellent."
father testified that the mother had not cooperated with the
father regarding decisions affecting the child and had failed
to keep the father informed regarding the child's health
care and education. He asserted that the mother had insisted
that the father get information regarding the child from the
maternal grandparents and not from the mother herself. The
mother admitted that she had not allowed the father to
participate in decisions regarding the child's health,
education, and welfare and that she had required the father
to communicate through the maternal grandparents because, she
said, every time she speaks with the father, he " curses
father also testified that the mother had interfered with the
father's visitation rights by insisting that the
father's visitations take place on the maternal
grandparents' property. The mother testified that that
had occurred only once because, she claimed, the father had
threatened to abscond with the child. The father admitted
that, since he had moved to Florida approximately five months
before the trial, he had attempted to visit the child only
father also testified that the mother had insisted that the
child use a " speaker phone" when talking to the
father on the telephone and that the mother had, at times,
attempted to cut short the father's telephone
conversations with the child. The father also testified,
however, that the child had acted as if he did not like
talking to the father on the telephone. The mother denied
that she had interfered with the father's telephone
conversations with the child.
father has a criminal record. Specifically, eight years
before the trial in this matter and before the divorce
judgment was entered, the father was incarcerated after a
domestic-violence incident against the mother while the
mother was pregnant with the child; that incident had
involved the use of a weapon. The father was arrested again
on a misdemeanor domestic-violence charge in 2012, although
it is not clear from the record whether that arrest occurred
before or after the divorce judgment had been entered. With
respect to the 2012 arrest, the father testified that, while
arguing with the mother, he had pushed her against their
mobile home, that she had retreated to the bathroom, and that
he had stabbed a sword through the bathroom door. The charges
stemming from the 2012 incident were dismissed. The father
denied having ever had anger or violence problems with anyone
other than the mother.
mother testified that, in January 2014, the father had hit
her and had threatened to kill her in the presence of the
child and that the father is verbally abusive to the mother
and the child. The father denied that he had threatened to
kill the mother or that he was verbally abusive to the child.
father testified that he had spanked the child with a belt
but that he had not been physically abusive. The mother
testified that, in her opinion, the father's discipline
rises to the level of abuse. The maternal grandfather
testified that he had witnessed the father whip the child
with a belt and leave marks on the child.
father admitted that, at the time of the trial, there was at
least one outstanding warrant for his arrest, which, the
father testified, had been issued in Massachusetts
approximately 20 years earlier in connection with a charge
against the father alleging the receipt of stolen property.
The father testified that, at the time
he was arrested in Massachusetts, he was homeless and that a
person had asked him to hold a bag of coins that had been
stolen from a newspaper-vending machine.
father testified that he had had a drug problem in the past
but that the last time he had abused drugs was eight months
before the trial, when he had used methamphetamine while
living with the mother. The father testified that he had also
witnessed the mother using drugs at that time, although the
mother denied that she had ever used illegal drugs.
father is a diabetic. The mother testified that, on one
occasion, the father had choked the mother while she was
sleeping and that he had later claimed that his actions had
been caused by a diabetic " attack." The mother
testified that the father had not properly monitored his
blood sugar, that he had not taken care of his health, and
that she had had to call paramedics for him approximately 10
times in the past.
mother testified that, at the time of the trial, she was
earning approximately $1,000 per month working as a
housekeeper. There is no testimony indicating how much income
the mother was earning at the time of the parties'
divorce. As noted, the mother testified that, at the time of
the trial, she was no longer living in a mobile home on the
maternal grandparents' property and that she and the
child were living with the maternal grandparents. The mother
testified that the child's needs are being met. The
maternal grandfather confirmed that the mother always makes
sure that the child's needs are met and that, if the
mother needs help, she gets it from the maternal grandfather.
It is undisputed that the child is excelling in school. At
the time of the trial, the mother was nine months'
pregnant and unmarried.
conclusion of the trial, the trial court indicated that it
was going to find that the mother, by consenting to the
maternal grandfather's petition, had intended to
relinquish her custody rights to the maternal grandfather and
had essentially " walk[ed] away from the child."
Thereafter, the trial court entered a judgment awarding the
mother and the father joint legal custody of the child, with
the father being awarded primary physical custody, awarding
the mother visitation rights, and ordering the mother to pay
the father child support. In its judgment, the trial court
specifically noted that the mother had consented to the
maternal grandfather's request for custody; that the
mother was pregnant, unmarried, and living with her parents;
and that the father was employed and living with his sister
in a home in Florida with sufficient space for the child.
appeal, the mother argues that the evidence did not satisfy
the standard for modifying custody that was recognized in
Ex parte McLendon, 455 So.2d 863 (Ala. 1984).
" 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.
Smith v. Smith, 865 So.2d 1207, 1209 (Ala.Civ.App.
2003). See also West v. Rambo, 786 So.2d 1138, 1140
(Ala.Civ.App. 2000). A judgment based on ore tenus evidence
is presumed to be correct and will be affirmed if
supported by competent evidence. N.G. v. L.A., 790
So.2d 262, 265 (Ala.Civ.App. 2001). The trial court's
opportunity to observe witnesses is especially important in
child-custody cases because the trial court is in the unique
position to directly observe the witnesses and to assess
their demeanor and credibility. Fell v. Fell, 869
So.2d 486, 494 (Ala.Civ.App. 2003). However, when this court
is presented with an issue of law, we review the judgment of
the trial court de novo, without affording it any presumption
of correctness. See Barber v. Moore, 897 So.2d 1150,
1153 (Ala.Civ.App. 2004)."
Patrick v. Williams, 952 So.2d 1131, 1137-38
(Ala.Civ.App. 2006). The ore tenus rule does not cloak with a
presumption of correctness a trial court's incorrect
application of law to the facts. Hartin v. Hartin,
[Ms. 2130500, Jan. 9, 2015] 171 So.3d 45, 47, *6
" A parent seeking to modify a previous custody order
bears a heavy burden of proof. The parent must prove that a
material change in circumstances has occurred since the prior
judgment, and that a change of custody will materially
promote the child's best interest and that the benefits
of the change will more than offset the inherently disruptive
effect caused by uprooting the child. Ex parte
McLendon, 455 So.2d 863, 866 (Ala. 1984)."
Vick v. Vick, 688 So.2d 852, 855 (Ala.Civ.App.
the trial court based its ruling, in part, on the facts that
the father had obtained a job and a place to live and that
the mother was unmarried and had become pregnant, as shown by
the trial court's statements at the conclusion of the
trial, the trial court's primary concern appears to have
been the fact that the mother had consented to the maternal
grandfather's filing of a petition seeking sole custody
of the child.
both the maternal grandfather and the mother testified at the
trial that they had intended to share joint custody of the
child so that the child might receive government benefits,
the petition itself clearly and undisputedly requested the
trial court to award sole custody of the child to the
maternal grandfather. The trial court was in the best
position to judge the credibility of the witnesses and to
resolve any conflict in the evidence presented. Accordingly,
the trial court did not err to the extent it made a factual
finding that the mother was willing to give up all of her
custody rights in favor of the maternal grandfather.
" In order to prove a material change of circumstances,
the noncustodial parent must present sufficient evidence
indicating (1) that there has been a change in the
circumstances existing at the time of the original custody
judgment or that facts have been revealed that were unknown
at the time of that judgment, see Stephens v.
Stephens, 47 Ala.App. 396, 399, 255 So.2d 338, 340-41
(Civ. App. 1971), and (2) that the change in circumstances is
such as to affect the welfare and best interests of the
C.D.K.S. v. K.W.K., 40 So.3d 736, 740 (Ala.Civ.App.
that the mother's willingness to relinquish custody to
the maternal grandfather, as well as her pregnancy and the
facts that the father had obtained a job and a place to live
in Florida, affect the welfare and best interest of the child
and are, therefore, material changes in circumstances under
the McLendon standard, it still remains that " [a] mere
change in circumstances is not enough to support a change in
custody from the custodial parent to the petitioning
parent." King v. King,
636 So.2d 1249, 1253 (Ala.Civ.App. 1994). The father also had
the " heavy" burden of proving that a change in
custody would materially promote the child's best
interests to such an extent that the change would more than
offset the inherently disruptive effect caused by uprooting
the child. Vick, 688 So.2d at 855. " [I]n the context of
child-custody proceedings, the dominant consideration is
always the best interest of the child," Ex parte
Fann, 810 So.2d 631, 638 (Ala. 2001), and "
stability is inherently more beneficial to a child than
disruption." Ex parte Cleghorn, 993 So.2d 462,
468 (Ala. 2008).
was no evidence indicating that a change in custody would
materially promote the child's best interests. The
testimony establishes that, at the time of the trial, the
child's needs were being met by the mother, with help
from the maternal grandparents. There is no evidence
indicating that the father's situation had improved to
such an extent that the child would be better off living with
the father. Indeed, there was no evidence indicating that the
job the father had obtained as a welder allowed him to earn
more income than he had in the past or that the house in
which the father was living was an improvement over his prior
situation or the maternal grandparents' home, where the
child was living at the time of the trial.
" It is not enough that the parent show that the parent
has reformed his or her lifestyle or improved his or her
financial position; the parent must show both that he or she
is fit and that the custody change materially promotes the
best interests and welfare of the child. McLendon,
455 So.2d at 866."
Gamble v. Segers, 833 So.2d 658, 661 (Ala.Civ.App.
2002). Likewise, there is no evidence indicating that the
prospect of the mother having another baby would prevent her
from being able to care for the child.
there was no evidence indicating that any alleged benefits to
the child of a change in custody would more than offset the
inherently disruptive effect caused by uprooting the child,
taking him out of his current school where he was
undisputedly doing well, and moving him to another state 600
miles away from his mother, with whom the child had lived his
entire life, to live with the father and the father's
sister. Accordingly, we conclude that the trial court erred
in modifying the custody provisions set out in the divorce
judgment. We therefore reverse the trial court's judgment
and remand the cause for the entry of a judgment consistent
with this opinion.
P.J., and Thomas, Moore, and Donaldson, JJ., concur.
There is no explanation in the record as to
why those individuals were not to be allowed to be in the
presence of the child.
The father claimed that the mother did not
give him notice of the maternal grandfather's petition
and that he had learned about it from a " third
party." The mother testified that she had indeed
informed the father about the petition.
The mother testified that she had become
pregnant while living in the duplex with the father after the
parties had been divorced but that the child was not the