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Johnson v. Johnson

Alabama Court of Civil Appeals

January 26, 2018

Stephen P. Johnson
Sara W. Johnson

          Appeal from Baldwin Circuit Court (DR-14-901588.01)

          PER CURIAM

         The Alabama Supreme Court has repeatedly held that improved circumstances of a noncustodial parent, without more, are insufficient to warrant a change in physical custody of children. Stephen P. Johnson ("the father") appeals from a judgment of the Baldwin Circuit Court ("the trial court") granting the petition of Sara W. Johnson ("the mother") to modify a judgment that had awarded sole physical custody of the parties' two children to the father. Because the evidence presented to the trial court was not sufficient to modify the physical custody of the children, we reverse the judgment.

         Procedural History

         The father and the mother had two children during their marriage. C.J. ("the daughter") was born on September 15, 2010, and W.J. ("the son") was born on May 11, 2012 (C.J. and W.J. are hereinafter sometimes referred to collectively as "the children"). The parties were divorced in September 2015 following a trial. In the divorce judgment ("the September 2015 judgment"), the trial court ordered that the mother and the father would share joint legal custody of the children. The father was granted sole physical custody, and the mother was granted specified rights of visitation with the children.[1]

          In November 2016, the mother filed a petition in the trial court seeking to modify physical custody of the children. A trial was held on May 3, 2017, less than two years after the entry of the September 2015 judgment. On June 7, 2017, the trial court entered a judgment modifying the September 2015 judgment by granting the mother sole physical custody and granting the father rights of visitation with the children ("the custody-modification judgment"). In the custody-modification judgment, the trial court stated, in part:

"On May 3, 2017, the Court conducted a hearing on the merits on the [mother's] [petition] to modify physical custody of the two children of the parties, a girl (C.J.)[, age] 6[, ] and a boy (W.J.)[, age] 4. In the Judgment of Divorce (entered September 1, 2015), this Court awarded joint custody to both parties, with the [father] being awarded primary physical custody, subject to visitation rights of the [mother].
"In awarding custody to the [father] following the divorce trial, the Court considered the fact that the [mother] had an addiction which resulted in the divorce, but had been to treatment, had been in recovery and had seemingly thrown off her addiction. However, at the time of the trial she had been clean for only eight months. Had there been a longer period of time, sufficient for the Court to determine that in all probability she would not relapse, the Court, considering the ages of the children and all other relevant factors[, ] would have awarded custody to the [mother].
"At the time of this hearing, [the mother] has been successful in her recovery for over two years. She is also now a leader in the recovery community and actively assists others with problems of addiction. The Court finds that both parties are excellent parents, love and nurture their children and are well able to provide for them. The Court finds, however, that the remarriage of the [father], and the addition of three new children to the household (for a total of six, ages 13, 12, 9, 6, 6 and 4, making C.J. and W.J. the youngest in the home), [2] are important factors for the Court to consider and represents a material change in circumstances.
"The Court finds that the [mother] is in a position to devote more time to these younger children and that considering all of the circumstances a change in custody to the mother would materially promote the best interests of the children, more than offsetting any inherently disruptive effect caused by the change, thereby meeting the three-pronged test set forth in Ex parte McLendon, 455 So.2d 663');">455 So.2d 663 [(Ala. 1984)].
"This is not an easy decision for the court to make, but it seems apparent that the mother is able to devote more time and attention to these young children who need considerable attention at this time in their lives. The father is a prominent full-time practicing attorney and has depended upon a nanny to assist with child care. The mother, also an attorney, has a flexible schedule and would not be dependent upon someone to raise the children. Additionally, the recent addition of a step-mom (who is a full time business owner/operator) and three more children present new challenges for the household of the [father]. It is impossible for this Court to see how the two minor children would not receive more time and attention from the [mother] which would materially promote the best interests of the children.
"It is therefore ORDERED that the [petition] to modify is hereby GRANTED and custody of the minor children C.J. and W.J. is hereby awarded jointly to the parties, with primary physical custody being awarded to the [mother], subject to the rights of visitation of the [father] set forth in Schedule 'A' attached hereto."[3]

         "Schedule A" referenced in the trial court's custody-modification judgment grants the father visitation with the children every other weekend and specified visitation during the summer and on holidays.

         The same day the custody-modification judgment was entered, the father filed a motion to alter, amend, or vacate that judgment, pursuant to Rule 59, Ala. R. Civ. P. On June 21, 2017, the father filed an amended motion seeking to alter, amend, or vacate the custody-modification judgment.

         On June 30, 2017, the father filed in the trial court a motion seeking to stay enforcement of the custody-modification judgment pending an appeal. The trial court held a hearing on both of the father's motions, and, on July 13, 2017, the trial court entered an order denying the father's postjudgment motion and the motion to stay. The father then filed his notice of appeal to this court, and, on July 25, 2017, the father filed in this court a motion to stay the implementation of the custody-modification judgment. On August 4, 2017, this court issued an order that entered a stay and explained that, in determining whether to enter a stay in a proceeding involving the custody of children, this court considers

"(1) [w]hether the movant has made a showing of likelihood of success on the merits; (2) whether the movant has made a showing of irreparable injury if the stay is not granted; (3) whether the granting of the stay would substantially harm the other parties; and (4) whether the 'best interests' of the child would be served by the stay."

See also Ex parte Krukenberg, [Ms. 2160817, Oct. 13, 2017] So. 3d, n. 1 (Ala. Civ. App. 2017)(discussing the factors considered by this court when considering a motion to stay).


         The entirety of the evidence presented in support of the custody-modification judgment includes an 82-page transcript; exhibits submitted by the mother consisting of a picture of the house recently purchased by the mother's aunt, the mother's tax returns, and various pictures of the mother and the children; and exhibits submitted by the father, consisting of pictures of himself with the children, pictures of the children's bedrooms, and documentary evidence of text messages between himself and the mother.

         The mother testified that she had been employed as an attorney working for her aunt earning between $60, 000 and $66, 000 annually. The mother testified she was currently living in a rental house but that she anticipated moving into a three-bedroom house that her aunt had recently purchased once the city approved a permit. The mother testified that she and her aunt intend to add three bedrooms and bathrooms to the house.

         The mother testified that she attends approximately three Alcoholics Anonymous ("AA") meetings each week. When asked who would care for the children while she attended meetings, the mother testified: "[w]hen I have the children, I frequently don't go to meetings." The mother then testified that, if granted custody, she would still "absolutely" need to go to AA meetings and that she has "a roomful of ...

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