George Donald Clark, Jr.
Rebecca Rutland Clark
from Montgomery Circuit Court (DR-16-900095.01)
ON APPLICATION FOR REHEARING
THOMPSON, PRESIDING JUDGE
court's opinion of April 19, 2019, is withdrawn, and the
following is substituted therefor.
February 28, 2017, Rebecca Rutland Clark ("the
mother") filed in the Montgomery Circuit Court
("the trial court") a petition seeking to modify a
judgment of the trial court that had divorced her from George
Donald Clark, Jr. ("the father"). The parties'
divorce judgment is not contained in the record on appeal,
but the pleadings and testimony of the parties before the
trial court indicate that that divorce judgment provided that
the parties shared joint legal custody of their three minor
children. Pursuant to the divorce judgment, the parties
shared joint physical custody of the two older children, who
are both boys, and the divorce judgment awarded the mother
sole physical custody of the parties' youngest child, a
February 28, 2017, modification petition, the mother sought
an award of sole physical custody of all three children, an
increase in the father's periodic-alimony obligation, a
determination that the father was in contempt for his alleged
failure to comply with certain terms of a pendente lite order
and the divorce judgment, and an award of an attorney fee.
The father answered and counterclaimed, seeking an award of
sole physical custody of all three of the parties'
children, a modification of child support, to have the mother
held in contempt for her alleged failure to pay certain
amounts as required in the divorce judgment, and an award of
an attorney fee.
father also filed a motion requesting pendente lite relief,
arguing that he had stored a horse trailer on property
belonging to the mother's father but that the
mother's father had refused to allow him to retrieve it.
The father sought an order declaring his right to retrieve
that trailer. The mother responded to that motion by arguing
that the horse trailer had been a gift from the father to
her. The trial court determined that it would rule on the
father's motion during the final hearing in this action.
On January 10, 2018, the father filed an amended
counterclaim, seeking, in addition to his earlier claims, the
termination of his child-support obligation for the
parties' oldest child, who had reached the age of
majority in November 2017, and the termination of his
periodic-alimony obligation because the mother had remarried.
trial court conducted an ore tenus hearing on March 8, 2018.
On March 30, 2018, the trial court entered a judgment in
which it denied both parties' requests for a modification
of child custody, granted the father's request that his
periodic-alimony obligation be terminated, and modified the
father's child-support obligation. In addition, the trial
court found that each party was in arrears in reimbursing the
other for certain child-related expenses. After offsetting
those amounts, it awarded the mother a total of $7, 103.47;
in doing so, the trial court declined to hold either party in
contempt for his or her failure to reimburse the other for
those expenses. The trial court also determined that the
father was entitled to possession of the horse trailer, and
it ordered that the father turn over to the mother any
remaining keepsakes and photographs in his possession. The
trial court denied the parties' other requests for
father filed a postjudgment motion on April 5, 2018,
challenging several rulings of the trial court and the
evidentiary support for those rulings. On April 20, 2018, the
mother filed a postjudgment motion. On July 16, 2018, the
trial court entered a postjudgment order. In that
postjudgment order, in response to the relief requested by
the mother, the trial court, among other things, altered the
provision in the March 30, 2018, judgment concerning the
father's child-support obligation. The trial court also
addressed other matters that are not at issue on appeal. The
father timely appealed.
father first argues that the trial court erred in denying his
claim seeking the modification of custody of the parties'
two minor children, a son ("the son") and a
daughter ("the daughter").
"Before we begin our analysis, we first consider the
applicable standards of review. When this Court reviews a
trial court's child-custody determination that was based
upon evidence presented ore tenus, we presume the trial
court's decision is correct: '"A custody
determination of the trial court entered upon oral testimony
is accorded a presumption of correctness on appeal, and we
will not reverse unless the evidence so fails to support the
determination that it is plainly and palpably
wrong...."' Ex parte Perkins, 646 So.2d 46,
47 (Ala. 1994), quoting Phillips v. Phillips, 622
So.2d 410, 412 (Ala. Civ. App. 1993) (citations omitted).
This presumption is based on the trial court's unique
position to directly observe the witnesses and to assess
their demeanor and credibility. This opportunity to observe
witnesses is especially important in child-custody cases.
'In child custody cases especially, the perception of an
attentive trial judge is of great importance.'
Williams v. Williams, 402 So.2d 1029, 1032 (Ala.
Civ. App. 1981)."
Ex parte Fann, 810 So.2d 631, 632-33 (Ala. 2001).
parties' divorce judgment provided for differing
custodial awards for the son and the daughter, and,
therefore, the burden the father bore in seeking to modify
custody was different for each child. The divorce judgment
awarded the parties joint legal custody and joint physical
custody of the son. Therefore, in order to modify physical
custody as it pertained to the son, the father was required
to present evidence of a material change in circumstances
such that an award of sole physical custody to him would be
in the son's best interests. Ex parte
Blackstock, 47 So.3d 801, 804-05 (Ala. 2009). The
divorce judgment awarded the mother sole physical custody of
the daughter. In order to prevail on his claim seeking an
award of sole physical custody of the daughter, the father
was required to demonstrate that a material change of
circumstances exists, that the change in custody would
materially promote the child's best interests, and that
the benefits of the change in custody would more than offset
the inherently disruptive effect of uprooting the child.
Walker v. Lanier, 180 So.3d 39, 42 (Ala. Civ. App.
2015). See also Ex parte McLendon, 455 So.2d 863,
865-66 (Ala. 1984).
evidence is undisputed that the parties do not work together
to parent the children and that they communicate only rarely.
The father testified that he wanted a change in custody in
order to spend more time with the daughter. Each party
presented evidence concerning incidents that brought into
question the other party's judgment. The mother presented
evidence indicating that the son suffered an eye injury while
playing baseball in the father's custody and that,
immediately thereafter, the father left the child at the
mother's house without communicating with her about that
injury. The father presented evidence indicating that, on one
occasion, the mother had allowed an unsupervised, 15-year-old
unlicensed driver to drive the son and the daughter a short
distance to her home.
mother presented evidence indicating that the son left the
father's home without the father's knowledge and was
discovered in the bedroom of the son's girlfriend. The
father admitted that that incident occurred, and he stated
that no similar incident had since occurred. The father
alleged that the mother had left the son and the daughter
home alone late at night on one occasion. The mother denied
that allegation, and she stated that the children had been
home with their older brother.
the evidence in the record was disputed, and it is the
function of the trial court to resolve factual disputes.
Wells v. Tankersley, 244 So.3d 975, 982 (Ala. Civ.
App. 2017) ("[T]he trial court, as the trier of fact,
was in the best position to resolve the disputes in the
evidence."). During the ore tenus hearing, each party
also attempted to bolster his or her allegations against the
other with references to the testimony of the parties'
three children. At the beginning of the hearing, the trial
court conducted in camera interviews with each of
the parties' children outside the presence of the
parties. Those interviews were not transcribed, and neither
party has submitted a Rule 10(d), Ala. R. App. P., statement
of the evidence setting forth the content of the
children's testimony. "[W]hen an in camera interview
with a child is conducted by the trial court and no record is
made of the interview, this court will presume that the
interview supports the findings of the trial court."
Reuter v. Neese, 586 So.2d 232, 235 (Ala. Civ. App.
1991). It is the burden of the father, as the appellant, to
ensure that the record contains sufficient evidence to
warrant a reversal on appeal. Griffin v. Griffin,
159 So.3d 67, 71 (Ala. Civ. App. 2014). Given the evidence in
the record, together with the presumption that evidence heard
by the trial court but not set forth in the record supports
the trial court's judgment, we conclude that the father
has failed to demonstrate on appeal that he met his
respective burdens to warrant a change in custody of either
child and that, therefore, he has failed to establish that
the trial court erred in denying his claims seeking a
modification of custody of the son and the daughter. M.B.
v. L.B., 154 So.3d 1043, 1048 (Ala. Civ. App. 2014).
father also argues that the trial court erred in its
determination of child support. In its March 30, 2018,
judgment, the trial court ordered the father to pay the
mother $483 per month in child support. The trial court
incorporated into its judgment the child-support forms
required by Rule 32(E) of the Rule 32, Ala. R. Jud. Admin.,
"'A noncustodial parent's child-support
obligation is governed by the mandatory application of Rule
32, Ala. R. Jud. Admin.; Smith v. Smith, 587 So.2d
1217 (Ala. Civ. App. 1991). Rule 32(E), Ala. R. Jud. Admin.,
states that "[a] standardized Child Support Guidelines
form and a Child Support Obligation Income
Statement/Affidavit form shall be filed in each
action to establish or modify child support obligations and
[that those forms] shall be of record and shall be deemed to
be incorporated by reference in the court's child support
order." (Emphasis added.) The filing of the
child-support-guidelines forms required under Rule 32(E) is
mandatory. Martin v. Martin, 637 So.2d 901 (Ala.
Civ. App. 1994). This court has consistently held that the
failure to file the required child-support-guidelines forms
in compliance with Rule 32(E) where child support ...