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Weaver v. Jefferson

Alabama Court of Civil Appeals

May 19, 2017

Seth Weaver
Jessi Jefferson

         Appeal from Etowah Circuit Court (DR-14-900237.01)

          THOMAS, Judge.

         Seth Weaver ("the father") and Jessi Jefferson ("the mother") are the parents of a child ("the child"). The parents were divorced by a judgment entered by the Etowah Circuit Court in December 2014. Although the divorce judgment does not appear in the record, certain orders of the circuit court, which do appear in the record, indicate that it had awarded the father "primary" physical custody of the child.[1] According to the mother, before she relocated from Georgia to Alabama in March 2015, she had exercised visitation with the child one weekend per month.

         On April 19, 2016, the mother filed a modification petition seeking an award of custody of the child, and an ex parte motion seeking immediate custody, because, she asserted, the father had been arrested on outstanding warrants that had been issued in Georgia. That same day, the circuit court entered an ex parte order awarding the mother temporary custody of the child based on its determination that the father was currently incarcerated in the Etowah County Detention Center. On April 27, 2016, the father filed a motion requesting that the circuit court set aside the ex parte order. The record demonstrates that on June 9, 2016, the circuit court held a hearing at which it heard arguments of counsel, and, that same day, it entered an order setting aside the ex parte order. The June 9, 2016, order reads, in pertinent part:

"As [the father] is now on bond status regarding the charges in Georgia, the grounds upon which the emergency petition was granted are no longer present.
"Therefore, primary physical custody shall revert back to the [father], per the original decree, pending the Court hearing the petition of [the mother] for the modification of primary physical custody."

         However, because the mother was entitled to exercise custody of the child pursuant to the summer-visitation schedule in the divorce judgment, the child remained with the mother and had been in the mother's custody for more than three months when the modification hearing occurred on July 26, 2016.

         On August 8, 2016, the circuit court entered a judgment ("the modification judgment") determining that the mother had met the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984) ("the McLendon standard"), "by sufficiently addressing the issues of concern discussed in the original decree" and by achieving stability. It awarded, among other things, "primary physical care, custody, and control" of the child to the mother, joint legal custody of the child to the parents, and visitation to the father. The circuit court's findings include, as material changes of circumstances, that the father had encountered "a catastrophic medical condition of a new child" and "some pending out-of-state legal issues." The father filed a postjudgment motion, which circuit court granted in part; however, the amendment to the modification judgment is not pertinent to this appeal. The father filed a timely notice of appeal seeking this court's review of whether the circuit court "correctly appl[ied]" the McLendon standard.

"On appeal, this court presumes the correctness of a judgment based upon evidence presented ore tenus. Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala. 1996).
"'"[W]e will not reverse [the judgment] unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow."'
"Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993)). However, this court reviews the interpretation and application of the McLendon standard, which involve pure questions of law, de novo. Gallant v. Gallant, 184 So.3d 387, 401 (Ala. Civ. App. 2014)."

K.U. v. J.C., 196 So.3d 265, 268-69 (Ala. Civ. App. 2015).

         At the time of the modification hearing, the child was four years old. The mother testified that her circumstances had improved because she had achieved stability. She testified that she had married, had relocated to Alabama, had given birth to another child, and had obtained employment.[2] According to the mother, if the circuit court awarded custody of the child to her, the child would have her own bedroom in a two-bedroom house and would attend day care and a preschool program. The mother testified that the child loves the mother's husband ("the stepfather") and that the child enjoyed the support of the mother's family and the stepfather's family. The mother's father-in-law testified that he and his wife were "always available." The mother's mother-in-law testified that the child is "very attached" to the stepfather. The mother said that after the ex parte custody order had been entered the child had visited the father for only one week but that the mother had routinely allowed him to "FaceTime" with the child.[3]

         The father agreed that the mother had achieved stability, and he requested that the circuit court award the mother increased visitation. However, he testified that there had been no material change in circumstances. He said that, if the circuit court did not modify the child's custody, she would continue to live in the same four-bedroom house with his wife ("the stepmother"), her son, the child's younger half sibling ("the child's half brother"), and the child's paternal grandparents; that the child would continue to attend the same preschool; that she would continue to have ...

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