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 ...