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R.D.F. v. R.J.F.

Alabama Court of Civil Appeals

August 10, 2018


          Appeal from Morgan Circuit Court (DR-10-709.03)

          THOMAS, Judge.

         R.D.F. ("the father") and R.J.F. ("the mother") are the parents of four children: N.F., Jon.F., A.F., and Jos.F. The parties were divorced in 2013; the divorce judgment awarded sole custody of the oldest child, N.F., to the father, [1]awarded the mother visitation with N.F.; awarded joint custody of the three younger children to the parents, and required the father to pay child support to the mother; the mother's custodial periods with all four children are quite similar to standard visitation, i.e., every other weekend and alternating Tuesday and Thursday evenings. In July 2015, the mother filed a verified complaint in the Morgan Circuit Court ("the trial court") in which she sought to have the father held in contempt and sought to modify her custodial periods with the children. The father answered the mother's complaint and counterclaimed, seeking to reduce the mother's custodial periods with N.F. by 1 day each custodial weekend and with the younger children by 30 minutes on those Sundays that the mother exercised her custodial periods; the father also sought the termination of his obligation to pay child support to the mother. In December 2015, the father moved to suspend the mother's overnight custodial periods with N.F. and to reduce the mother's daytime custodial periods with N.F. to one-half day. Although the trial court held a hearing on the father's motion in February 2016, it did not address the motion until its issuance of the final judgment.

         The trial commenced on June 14, 2016, and continued through June 17, 2016; however, the trial was not completed until October 28, 2016. The trial court entered a judgment on May 9, 2017, in which it held the father in contempt for certain actions, modified custody by awarding the mother sole legal and sole physical custody of all four children, and ordered the father to pay child support in accordance with Rule 32, Ala. R. Jud. Admin. The father filed a postjudgment motion, which was denied by operation of law, see Rule 59.1, Ala. R. Civ. P. (providing that the failure to render an order on a postjudgment motion within 90 days after its filing results in the automatic denial of the motion), and then filed a timely appeal. On appeal, the father challenges the modification of custody and the award of child support.

         The father first argues that the trial court lacked the authority to modify custody of the children because, he says, the mother sought only an increase in her custodial periods and, therefore, he asserts, he did not have notice that the trial court would consider a full modification of the existing custody arrangement. In her complaint, the mother sought a change to the parties' custodial arrangement, requesting additional time with the children, and utilized language closely mirroring that found in Ex parte McLendon, 455 So.2d 863, 865-66 (Ala. 1984) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala. Civ. App. 1976)), regarding the burden for a change in custody;[2] in his counterclaim, the father sought to reduce the mother's custodial periods with all the children, but especially with N.F. However, at trial, the mother testified that she was asking the trial court to "flip the schedule" or "to give [her] what [the father] now has and give him what [the mother has]."

         The father's attorney objected to the mother's testimony, stating that the mother had asked for only "additional custodial time," not a modification of custody. The mother's attorney indicated that he did not think that the mother had been required to state in her pleadings what the exact custodial arrangement should be, and the trial court agreed, indicating that the mother could testify about what custodial arrangement she thought would be best for the children. The mother stated that she was not seeking sole physical custody, but, when questioned a second time about what she desired, the mother again testified, this time without objection, that she wanted the trial court to "flip the custody" and that she was "asking for more custodial time." In addition, the children's guardian ad litem filed her report before the beginning of the trial in this matter; her recommendation was to award sole physical custody of the children to the mother, indicating that the guardian ad litem was aware that the parties were litigating the proper custodial arrangement for the children. Notably, although his counsel cross-examined the guardian ad litem about the report at the close of the trial, the father did not object to the admission of the guardian ad litem's report or her testimony indicating that she recommended a modification of custody.

"It has been said by the Supreme Court of this state that in a custody proceeding the court 'does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other, or indeed against anyone. [The court] acts as parens patriae to do what is best for the interest of the child. [The court] is not adjudicating a controversy between adversary parties, to compose their private differences. [The court] is not determining rights as between a parent and child, or as between one parent and another.' Cleckley v. Cleckley, 250 Ala. 78, 33 So.2d 338[(1948)]; Ex parte White, 245 Ala. 212, 16 So.2d 500');">16 So.2d 500 [(1944)]. Any matter affecting the rights, interests or welfare of the ward is within the peculiar jurisdiction and discretion of the court. Stephens v. Stephens, 253 Ala. 315, 45 So.2d 153 [(1950)]."

Leigh v. Aiken, 54 Ala.App. 620, 623, 311 So.2d 444, 447 (Civ. App. 1975).

         In addition, our supreme court has explained:

"The circuit court's jurisdiction to [decide custody] is derived from the principles of equity; where a child is physically present within the jurisdiction of a circuit court in this state, the court has inherent authority to act to protect the welfare and best interests of the child. [Ex parte] Handley [, 460 So.2d 167 (Ala. 1984)]. A party need not specifically invoke the circuit court's inherent jurisdiction; rather, any pleading showing on its face that the welfare of a child requires an order with respect to its custody and support is sufficient to invoke the jurisdiction of the circuit court to settle the matter. Handley. Once the circuit court's jurisdiction is thus invoked, any matter affecting a child may become the subject of its adjudication. Handley."

Ex parte Lipscomb, 660 So.2d 986, 989 (Ala. 1994).

         Furthermore, Ala. Code 1975, § 30-3-152(a), requires that a trial court tasked with determining the custody of a child consider joint custody but specifically states that a trial court "may award any form of custody which is determined to be in the best interest of the child." A review of the record indicates that most of the evidence presented concerned the respective parenting abilities of the parties and what amount of parenting time each party should have. Based on the foregoing authorities, we conclude that the question of what custody arrangement would serve the best interest of the children was litigated by the parties, and we find no basis for a conclusion that the trial court exceeded its authority or proceeded to modify custody without notice to the father that a modification of custody was requested.

         A parent seeking modification of any type of custody arrangement must show a material change of circumstances giving rise to a need for a change of custody. Watters v. Watters, 918 So.2d 913, 916 (Ala. Civ. App. 2005); Means v. Means, 512 So.2d 1386, 1388 (Ala. Civ. App. 1987). A material change of circumstances is a change in the circumstances of the parties "'such as to affect the welfare and best interest of the child or children involved.'" Watters, 918 So.2d at 916 (quoting Ponder v. Ponder, 50 Ala.App. 27, 30, 276 So.2d 613, 615 (Civ. App. 1973)). The alleged material changes must "affect[] the best interest and welfare of the child such that a change in the existing custodial arrangement [is] warranted," and mere tangential effects on the child are not sufficient to make changes in circumstances material. Watters, 918 So.2d at 916.

         We note that, in this case, the parties shared joint custody of the three younger children but that the father had sole custody of N.F. Thus, the trial court was required to apply different standards to the custody modification sought by the mother. Regarding N.F., the mother was required to present evidence indicating that a change in N.F.'s custody would materially promote his welfare. See Ex parte McLendon, 455 So.2d at 866-67. Of course, a parent seeking modification of a joint-custody arrangement is not required to meet the standard set out in Ex parte McLendon. See Watters, 918 So.2d at 916; Means, 512 So.2d at 1388. Thus, the mother was not required to show that the three younger children's ...

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