Whitehead v. Whitehead

214 So.3d 367

Ryan Nichole WHITEHEAD

v.Brandon Heath WHITEHEAD.

2140657.

Court of Civil Appeals of Alabama.

Feb. 12, 2016.

Rehearing Denied April 15, 2016.

Certiorari Denied July 8, 2016

Alabama Supreme Court 1150803.

Adrienne Michele LaBudde, Anniston, for appellant.

R. Allen Crow, Eastaboga, for appellee.

THOMPSON, Presiding Judge.

Ryan Nichole Whitehead ("the mother") and Brandon Heath Whitehead ("the father") were divorced by an October 2008 judgment of the Calhoun Circuit Court ("the trial court"). The parties have not specified the exact terms of the custody arrangement set forth in their divorce judgment pertaining to the child born of the marriage. However, on July 29, 2010, the trial court granted the father's petition to modify the custody provisions of the divorce judgment, awarded the parties "joint custody, care, and control" of the child and specified that the father have "primary placement" and the mother have "secondary placement."

In April 2014, the father notified the mother by letter that he planned to relocate with the child to Tennessee. On May 7, 2014, the mother filed a petition seeking to modify custody of the child and objecting to the father's proposed relocation with the child. In her modification petition, the mother also sought an order preventing the father from taking the child out of Alabama pending a hearing on the mother's petition. The mother filed a separate motion seeking pendente lite custody of the child. On May 8, 2014, the trial court entered an order enjoining the father from relocating with the child pending a hearing on the mother's petition.

The trial court conducted an ore tenus hearing. At that hearing, it was agreed that the father no longer proposed to relocate to Tennessee and, therefore, that any issue pertaining to that move was moot. On February 26, 2015, the trial court entered a judgment finding that the issue of the father's proposed relocation was moot and denying the mother's custody-modification claim. The mother filed a postjudgment motion, and the trial court denied that motion. The mother timely appealed.

The mother first argues that, in denying her petition to modify custody, the trial court applied an incorrect modification standard. In reaching its judgment on the issue of custody, the trial court determined that the mother had failed to meet the modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). The McLendon standard provides that the parent seeking to modify a previous custody award must 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. McLendon, 455 So.2d at 866 ; Ex parte Cleghorn, 993 So.2d 462, 468–69 (Ala.2008). The mother argues, however, that the "best interests of the child" standard set forth in Ex parte Couch, 521 So.2d 987, 989 (Ala.1988), applies under the facts of this case.

The determination whether the McLendon standard or the "best interests of the child" standard set forth in Couch applies turns on whether there has been a previous custody determination as between the two parents. If no previous custody determination has been made, or if a custody determination has been made that does not favor one parent over the other, such as an award of joint custody pursuant to which the parties share both joint legal custody and joint physical custody, see § 30–3–151(1), Ala.Code 1975, the "best interests of the child" standard applies. New v. McCullar, 955 So.2d 431, 434 (Ala.Civ.App.2006). However, if a previous custody award favors one parent, i.e., by awarding one parent primary, or sole, physical custody, the McLendon standard applies to any modification action. Rehfeld v. Roth, 885 So.2d 791, 794 (Ala.Civ.App.2004) (citing Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995) ). Our supreme court has explained:

"There are different standards for a trial court to use in ruling on questions of child custody. If one parent has previously been granted primary physical custody or if one parent has ‘given up’ legal custody, then an existing custody arrangement will be modified only if the modification materially promotes the best interests and welfare of the child. Ex parte McLendon, 455 So.2d 863, 865–66 (Ala.1984). If neither parent has previously been given primary physical custody, then the ‘best interests of the child’ standard applies. Ex parte Couch, 521 So.2d 987, 989 (Ala.1988)."

Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994).

In this case, the most recent, July 29, 2010, custody-modification judgment stated that the parties were to "share the joint custody, care, and control of their minor child." However, that judgment then specified that the father have the "primary placement" of the child and that the mother have "secondary placement." The mother was ordered to pay child support to the father and was awarded liberal visitation with the child, i.e., alternating weekends, one weekday each week during the school year, and one-half of the summer break.¹

The mother contends that because the July 29, 2010, modification judgment specified that the parties share "joint custody" and because she has "placement" of the child for what she contends in her brief is approximately 150 days per year, the custody award awarded the parties joint legal custody and joint physical custody, rather than an award of primary physical custody, or sole custody, to the father. The term "joint custody" is defined in § 30–3–151(1), Ala.Code 1975, as "[j]oint legal and joint physical custody." However, our appellate courts have recognized that there is confusion in the trial courts' use of that term, and, therefore, the courts have interpreted the term "joint custody" according to the intent of the trial court in using the term. This court has explained:

"The trial court's divorce judgment awarded the parties ‘joint custody,’ yet it awarded the father ‘primary physical custody.’ ‘These terms have been commonly employed by the bench and bar; however, in light of the definitions of the types of custody set out in the joint-custody statute, those older terms are unclear and ... serve only to confuse the issue of custody.’ Harris v. Harris, 775 So.2d 213, 214 (Ala.Civ.App.1999). Using the proper terms set out in the joint-custody statute, § 30–3–151, Ala.Code 1975, the divorce judgment can be construed only one way—that is, it awards the father sole physical custody and the mother and the father joint legal custody. See Harris, 775 So.2d at 214."

Richardson v. Fotheringham, 950 So.2d 339, 341 (Ala.Civ.App.2006).

This court interpreted a previous judgment that had awarded the parties " ‘joint custody’ " but had awarded the father " ‘primary placement’ " to be a custody judgment in favor of the father. Clayton v. Langley, 175 So.3d 179 (Ala.Civ.App.2015). Similarly, in Smith v. Smith, 887 So.2d 257, 261–62 (Ala.Civ.App.2003), this court concluded that a custody judgment that awarded the parties " ‘joint custody,’ " but specified that the mother was to have " ‘primary physical custody,’ " was a judgment that favored the mother.

"[T]here is but one way to interpret a judgment that awards ‘joint custody’ with an award of ‘primary physical custody’ to one parent—such a judgment must be interpreted as awarding the parents joint legal custody and awarding one parent sole physical custody, the term used by [§ 30–3–151 ] to denote a parent being favored with the right of custody over the other parent, who will receive visitation."

Smith v. Smith, 887 So.2d at 262. In Smith v. Smith, supra, this court recognized the difference between the terminology employed by the trial court in its judgment and that used in § 30–3–151, and we stated: "We take this opportunity to remind the bench and bar that our legislature has adopted terminology to be used in crafting custody judgments. Use of the terminology used before the enactment of § 30–3–151 only serves to engender confusion." Id. See also Martin v. Payne, 739 So.2d 510, 510–11 (Ala.Civ.App.1999) (a judgment that awarded "joint custody" but that the evidence showed primary placement was awarded to the mother with the father having liberal visitation was a judgment that favored the mother such that the McLendon standard applied to a modification of the judgment); and Williams v. Williams, 75 So.3d 132, 138–39 (Ala.Civ.App.2011) (stating that "this court has urged trial courts to use the terminology contained in § 30–3–151 when crafting custody judgments" but holding that a judgment awarding the parties joint custody with one parent having primary physical custody "should be interpreted as awarding the parties joint legal custody of the children and awarding [that one parent] sole physical custody of the children").

The mother argues that the number of days each month that the child spent with her should be used to determine the nature of the custody award set forth in the July 29, 2010, modification judgment. The mother cites a number of cases in support of that argument. However, in most of those cases, the custody judgments that the parties sought to modify were different from the July 29, 2010, modification judgment that the mother sought to modify in this action. In those other cases, the custody judgments at issue specifically awarded the parties joint physical custody, and the courts examined whether the award was a true award of joint physical custody such that there was no preference in favor of either parent.² In New v. McCullar, supra, the custody judgment at issue provided that " ‘the parties share joint legal and joint physical custody,’ " although it specified that the child's primary residence was with the mother. 955 So.2d at 432. The main opinion concluded that: "To the extent that the divorce judgment is internally inconsistent, we conclude that it in fact created a joint-physical-custody...