Michalak v. Peterson

382 So.3d 1234

Timothy MICHALAK

v.Jessica PETERSON

CL-2022-0629

Court of Civil Appeals of Alabama.

March 3, 2023

Austin Burdick of Burdick Law Firm, Bessemer, for appellant.

A. Freeman Fite IV of The Fite Law Firm, LLC, Anniston, for appellee.

PER CURIAM.

Timothy Michalak ("the father") appeals from a judgment entered by the Calhoun Circuit Court ("the trial court") in favor of Jessica Peterson ("the mother"), denying his petition for a modification of custody and modifying his visitation schedule. We affirm the judgment.

The parties’ child was born in June 2016, apparently when the father resided in the State of Washington and the mother resided in California. Eventually, the mother and the child moved to Oxford, Alabama; the father remained in Washington. At some point, a child-support order was entered in a Washington jurisdiction, presumably by a Washington court, based on a petition filed by the Washington Department of Social and Health Services. The Washington child-support order required the father to pay $817 per month to the mother as child support. Also, at some point, the mother commenced a custody proceeding in the trial court. Pursuant to a judgment entered by the trial court in February 2019 ("the February 2019 judgment") the parties were awarded joint legal custody of the child, and the mother was given primary decision-making authority. The February 2019 judgment also awarded the mother "sole physical custody" of the child and awarded the father visitation (referred to in the judgment as "secondary placement privileges") "at all reasonable times and under reasonable cir- cumstances agreed to in advance" by the parties, provided, however, that the father was to have minimum visitation of an identified weekend or extended weekend in most months; approximately nine days for each spring and fall break of the child’s school (subject to some adjustment to accommodate the mother’s custody during Thanksgiving of even-numbered years); for four days for Thanksgiving in odd-numbered years; for all but three weeks of the summer break of the child’s school; and from December 26th each year until the resumption of the child’s school. The father also had a right to visit with the child any weekend that the father was in Alabama, provided that he gave the mother 10 days’ advance notice of his intent to exercise that right. The February 2019 judgment also stated that the provisions of the Washington child-support order "remain[ed] in full force and effect."¹

In March 2021, the father filed in the trial court a petition for a modification of physical custody as to the parties’ child. The father alleged that he recently had purchased a home in Oxford and was relocating there. He requested that physical custody be changed to joint physical custody and that the child be in his care at least half of the time. The father also requested a reduction of his child-support obligation. The mother filed an answer denying the allegations in the father’s modification petition. The mother also filed a counterclaim requesting that the trial court hold the father in contempt because, according to her, he had failed to pay child support as required by the Washington child-support order.

After ore tenus proceedings, the trial court entered a judgment on February 18, 2022 ("the February 2022 judgment"), denying the father’s modification petition as to custody on the ground that he had failed to meet his burden under Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). The February 2022 judgment also modified the father’s visitation, an issue that had been tried by implied consent, see discussion, infra, and denied his request for a modification of his child-support obligation based on the trial court’s determination that it lacked jurisdiction to modify the Washington child-support order, see Ala. Code 1975, § 30-3D-609 et seq. Similarly, the February 2022 judgment denied the mother’s counterclaim for contempt for nonpayment of child support on the ground that the trial court lacked jurisdiction to enforce the Washington child-support order. See Ala. Code 1975, § 30-3D-601 et seq.²

Regarding the father’s visitation, the February 2022 judgment stated that the father was to have visitation with the child as the parties could agree but that, at a minimum, he was to have visitation every other weekend from the end of the school day on Friday until the start of the school day on Monday; every other Wednesday night from the end of the school day until the start of school on Thursday; on specified holidays, as well as the spring and fall break of the child’s school, with times alternating between the parties; and on al- ternating weeks during the recess of the child’s school in the summer. The February 2022 judgment also mistakenly awarded the father visitation on Mother’s Day and the mother visitation on Father’s Day each year.

[1–3] The father timely filed a post-judgment motion. On April 26, 2022, the trial court entered an order denying the father’s postjudgment motion but amending the February 2022 judgment to correct the mistake as to which party would have custody on Mother’s Day and Father’s Day (based on the mother’s oral motion at the postjudgment-motion hearing).³ The father timely filed a notice of appeal to this court.

" ‘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 [standard described in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984)], which involve pure questions of law, de novo. Gallant v. Gallant, 184 So. 3d 387, 401 (Ala. Civ. App. 2014).’ "

Weaver v. Jefferson, 242 So. 3d 1014, 1016-17 (Ala. Civ. App. 2017) (quoting K.U. v. J.C., 196 So. 3d 265, 268-69 (Ala. Civ. App. 2015)).

[4] The father argues that the trial court erred by requiring him to satisfy the standard set forth in Ex parte McLendon, which requires a noncustodial parent seeking to modify a previous custody award of sole physical custody to demonstrate that a material change in circumstances has occurred such that a change of custody would materially promote the child’s best interests and that the benefits of the change would offset the disruptive effect of the change in custody. Id. at 866. According to the father, the trial court should have applied the standard discussed in Ex parte Couch, 521 So. 2d 987 (Ala. 1988) (discussing the best-interest-of-the-child standard), because, he says, the parties "enjoyed equal or nearly equal parenting time" under the February 2019 judgment.

In Ex parte Couch, the supreme court concluded that the trial court in that case had erred by applying the standard described in Ex parte McLendon when the original custody judgment had awarded the parties "joint legal and shared physical custody" and the children were going to be "moved and affected" regardless of who was awarded custody because Carol Couch, who had been the children’s primary custodian based on the parties’ agreement after the entry of the custody judgment, was moving from Alabama to New York. The father attempts to analogize this case to Ex parte Couch, contending that the "parenting schedule" in the February 2019 judgment granted him nearly equal parenting time with the mother and that, after the entry of the February 2019 judgment, he "ha[d] exercised his parenting time under [that judgment] to the fullest extent possible which resulted in him having the child in his care 181 days of the prior calendar year," including every other weekend during that calendar year, in addition to his other periods of extended visitation described in the February 2019 judgment. It does not appear that the father had exercised such extensive visitation before he moved to Alabama.

The facts of the present case are not substantially analogous to the facts in Ex parte Couch, and the father’s argument that the trial court erred by applying the standard described in Ex parte McLendon is without merit. The February 2019 judgment unequivocally awarded the mother sole physical custody of the child; the father pleaded as much in his petition for modification and repeatedly testified at trial as to the "visitation award" to him in the February 2019 judgment; he likewise admitted at trial that the February 2019 judgment had awarded the mother sole physical custody of the child; and the father’s parenting time under the February 2019 judgment was not "nearly equal" to that of the mother until after he moved to Alabama and was able to exercise his right to visitation on additional weekends, a circumstance that the trial court noted had not been anticipated when the February 2019 judgment was entered.

[5] The father cites several cases in addition to Ex parte Couch in an attempt to buttress his argument. However, like Ex parte Couch, those cases are distinguishable from the present case and we find no reason to further discuss this issue. See Williams v. Williams, 243 So. 3d 826, 828 (Ala. Civ. App. 2017) (holding that the best-interest-of-the-child standard applied when, under previous custody judgment, the parties "were awarded joint legal and physical custody of the parties’ children" and were to exercise their respective physical-custody rights on alternating weeks); E.F.B. v. L.S.T., 157 So. 3d 917, 923 (Ala. Civ. App. 2014) (holding that the best-interest-of-the-child standard applied when, under previous custody judgment, the parties had been awarded "joint physical...