C.L.B. v. D.L.O.

61 So.3d 325

C.L.B.

v.D.L.O.

2090737.

Court of Civil Appeals of Alabama.

Oct. 29, 2010.

Tiffin M. Taylor, Huntsville, for appellant.Denise M. Learned, Alisha D. Franklin, and Stacie B. Irwin, Addison, for appellee.PER CURIAM.

C.L.B. (“the mother”) appeals from a judgment awarding D.L.O. (“the father”) and her joint physical custody of their child. Pursuant to the judgment, the child is to spend alternate weeks with each parent.

This is the second time this cause has come before this court. In the first appeal, C.L.B. v. D.L.O., 42 So.3d 1246 (Ala.Civ.App.2010), this court considered the propriety of the judgment of the Winston Juvenile Court entered on June 3, 2009. In that judgment, the juvenile court found that the child was dependent because he was in a condition or surroundings that endangered the child's morals, health, or general welfare. Based upon its findings, the court modified primary custody of the child from the mother to the father. We determined that the finding of dependency was not supported by clear and convincing evidence and that, because the child was not dependent, the juvenile court had applied the incorrect standard in determining whether a custody modification was warranted. Id. at 1249–50. Accordingly, we reversed the judgment and remanded the cause for the juvenile court to apply the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), to determine whether to modify custody. Id.

On February 17, 2010, after this court had remanded the action, the father filed a motion for “temporary” (properly, pendente lite) custody of the child pending the juvenile court's new custody determination. The next day, February 18, 2010, the mother filed her opposition to the father's motion for pendente lite custody. The case-action summary indicates that the juvenile court entered a “temporary order” on February 18, 2010, awarding the father temporary custody of the child until the juvenile court could make a new custody determination. We note that, although it was entered on February 18, 2010, the “temporary order” was dated February 17, 2010, before the mother's opposition to the father's motion had been filed. No appeal was taken from the “temporary order.”

On April 29, 2010, the juvenile court entered an “amended final order” (“the amended judgment”) based on the evidence presented at the May 7, 2009, trial—the same evidence it had relied on in entering the judgment of June 3, 2009. In that amended judgment, the juvenile court set forth new findings of fact. It stated that “[t]he testimony and evidence presented [at the May 7, 2009, trial] was such as to convince this court that a change in custody will materially promote the minor child's best interest and that the benefit(s) derived from the change in custody will more than offset any disruptive effect caused by said change in custody.” The juvenile court then awarded the parties joint physical custody of the child, “with each party exercising visitation every other week for a period of seven (7) days.” The juvenile court instructed the parties to “exchange the minor child every Friday at 6:00 p.m.,” but it also granted the mother visitation every other weekend from Friday evening until Sunday evening. It appears from the amended judgment that the juvenile court intended the parties to each have custody of the child on alternating weeks, beginning on Friday evening. The amended judgment further ordered that the child could not be withdrawn from the Haleyville school system without the express written consent of both parties. At the time of the first appeal, the child had been enrolled in a private religious school in Huntsville.

The amended judgment also included the following statement:

“It is to be noted that while the subject of the [mother's] religious beliefs was brought up during the trial of the above-styled cause the court has not decided this case based upon the religious beliefs of either of the parties to this action. While it is true that there is considerable difference in religious beliefs between the parties, this court does not find it appropriate, legally or otherwise, to base its decision on whether or not the court agrees or disagrees with either of the party's religious beliefs.”

The mother now appeals from the amended judgment. She contends that the juvenile court erred in determining that a change in custody would materially promote the child's best interest. She does not challenge the provision in the amended judgment requiring the child to remain enrolled in the Haleyville school system without the consent of both parties.¹

As previously mentioned, the juvenile court based its decision on ore tenus evidence presented at the May 7, 2009, trial of this case. The standard of appellate review of a child-custody judgment based on ore tenus evidence is deferential.

“ ‘When evidence in a child-custody case has been presented ore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination—it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.’ ”

Burgett v. Burgett, 995 So.2d 907, 912 (Ala.Civ.App.2008) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). An appellate court will not reverse a trial court's judgment as to custody in such a case unless the evidence fails to support the trial court's custody determination so that the appellate court must conclude that that determination 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)).

“ ‘[E]ven under the ore tenus rule, “[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.” ’ B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999) (quoting Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979)).”

Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007).

In C.L.B., we set forth the following facts relevant to our determination of whether the evidence supported the juvenile court's finding that the child was dependent:

“The mother and the father had the child out of wedlock. When the child was born, the mother was 16 years old and the father was 20 years old. On August 5, 2004, the juvenile court, incorporating an agreement of the parties, entered a judgment establishing the father's paternity and awarding custody of the child to the mother. Pursuant to the parties' agreement, the judgment granted visitation to the father and ordered him to pay child support.

“After the birth of the child, the mother went on to graduate from high school and college. The mother moved to Huntsville, without any objection from the father, and she is now a teacher in the Huntsville public schools. The record indicates that the parties had an amicable relationship, and they appeared to work well together in raising the child.

“In 2008, however, a dispute arose between the parties regarding the mother's change in religious beliefs. The mother enrolled the child in a private school in Huntsville affiliated with the mother's religious beliefs. The father filed a petition with the juvenile court seeking to modify custody of the child....

“....

“The father testified that, until the parties' religious differences arose, ‘I thought that [the mother] was one of the best mothers that I had ever met.’ Later, he testified that, although he did not believe that the mother had ‘made the right decision on the religion,’ he believed that she was ‘probably the best mom that I have ever met, as far as getting a bruise or cut on you, probably the best.’

“The juvenile court found that the child was ‘fearful’ of the mother's husband. That finding is also not supported by the evidence. There was testimony indicating that the child was reluctant to talk about the mother's husband in front of the father, but there was no evidence indicating that the child was afraid of the mother's husband. The father testified that he did not believe that the mother would allow the child to be physically harmed. He also said that the mother's new husband, who shares the mother's religious beliefs, is ‘super nice’ and that he did not believe that the mother's husband was harming the child.

“The juvenile court found that the mother's move to Huntsville had had a negative impact on the child and that it had separated the child from his extended family. The record shows that the father did not object to the mother's move to Huntsville. In fact, he stated that he understood that the mother had better job opportunities in Huntsville than in Winston County and that he was also interviewing for jobs outside of Winston County. The evidence was undisputed that the mother had invited her parents to visit in Huntsville, but, because of her religious beliefs, they had refused to visit her. The evidence also was undisputed that the child visited with both his paternal and his maternal grandparents every other weekend when he was at his father's house for visitation.

“In its findings, the juvenile court stated that the mother had lived with her new husband for approximately ten months before they married. The evidence supported that finding. However, the juvenile court did not mention the undisputed evidence that, at the time of the hearing, the father was living with his girlfriend and her child.

“The evidence indicated that the child was doing well in school and that he was healthy, happy, and well-adjusted. There was no contention that the child was anything but well-cared for while in the mother's custody. The father acknowledged that his only complaints against the mother were her religious...