Score One for Ore Tenus

The Alabama Supreme Court has dressed down the Alabama Court of Civil Appeals in a custody case for reversing a trial court ruling without good reason. It’s about time.

The case is Davis v. Blackstock, Case No. 1061445 (Ala. September 11, 2009). The parents were divorced by a Tennessee court after they had left Tennessee and moved to Alabama, Mom to Florence and Dad to Decatur. Over Mom’s objection, the Tennessee court later modified the custody plan for the parties’ pre-school daughter to provide for a “four days with Mom, four days with Dad” schedule (the four/four arrangement), and it relieved Dad of the duty to pay child support.

This case arises from Mom’s filing in Alabama of a petition to modify, seeking a change in custody and support. Dad counterclaimed, requesting primary custody for himself. After an ore tenus hearing, the trial court ordered that the parties continue joint custody but that Mom be granted primary physical custody and child support from Dad, with Dad to have “standard visitation” with the child.

Upon Dad’s appeal, the appeals court found that Mom had failed to meet her burden of showing that a material change of circumstances had occurred or that the change had affected the child’s welfare or best interest. Note: if  you’re wondering why McLendon doesn’t apply here, it’s because the custody arrangement was one of joint physical custody. McLendon applies only in cases of sole physical custody. The appeals court reversed the trial court and remanded the case. Mom petitioned the Alabama Supreme Court for a writ of certiorari.

The Supreme Court reversed the appeals court. The Supreme Court restated the oft-quoted but seldom followed principle that when a trial court hears testimony (that’s the ore tenus part) and makes a child custody ruling, that ruling enjoys a presumption of correctness on appeal. Appellate courts are not to reverse the trial court’s ruling 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.” Davis at 8. The Supreme Court also said that in a case like this one where the trial court does not make detailed findings of fact, courts properly “will assume that the trial court made those findings [of fact] necessary to support its judgment, unless such findings would be clearly erroneous.” Davis at 11.

The appeals court language, said the Supreme Court,

is phrased in terms of that court’s conclusion as to whether the mother met her burden of proof: “Based on the totality of the evidence, we conclude that the mother failed to meet her burden [of proof].”     So. 3d at    , 2007 Ala. Civ. App. LEXIS 434, *12. As noted, however, the question is whether the circuit court heard and saw sufficient evidence that, based on that evidence and the inferences the circuit court reasonably could have drawn from it, the circuit court reasonably could have made the factual findings and reached the conclusion that it reached. After careful review, we conclude that the Court of Civil Appeals failed to give appropriate deference to the circuit court’s implicit findings and resulting judgment. Davis at 11.

The Supreme Court followed these statements with a detailed examination of some of the evidence the trial court had before it in the form of testimony from Mom, from the child’s teacher, from a licensed social worker and parenting specialist who attended church with Mom and the child, and from a professor of early childhood education at the University of North Alabama. The Supreme Court said this testimony would support a conclusion that the four/four arrangement had become problematic for the child, that the problems it presented were going to get worse as the child began attending school, and that the father had promised on several occasions to move to Florence to be closer to the child and help the four/four arrangement succeed but had never done so.

The circuit court also could have concluded that, despite the father’s testimony that he believed such things negatively affected the child, the father had instigated contentious conversations with the mother in the child’s presence. Although the father attempted to blame the mother for these conversations, the circuit court could have concluded that the father was at fault. Likewise, the circuit court could have concluded generally that the father was being untruthful and evasive in his testimony and that he was attempting to mislead the court in an effort to obtain sole custody of the child.

In any event, based on the foregoing, and other testimonial and documentary evidence (including the testimony of the maternal grandmother), the circuit court implicitly concluded, after an ore tenus hearing, that a material change in circumstances had occurred since the entry of the September 2003 order and that it was in the best interest of the child for the mother to have primary physical custody. As discussed above, the task of an appellate court is not to reweigh the evidence, but to determine if there is sufficient evidence to support the trial court’s ruling. Based on our review of the record, we must conclude that there was sufficient evidence in this regard and, therefore, that the Court of Civil Appeals erred in reversing the judgment of the circuit court. Davis at 30-31.

In a footnote that must be regarded as dictum, the Supreme Court cited the observation in Headrick v. Headrick, 916 So. 2d 610, 615 (Ala. Civ. App. 2005) that “alternating-custody arrangements can be disruptive to a child if the parents do not live in the same community.”

It is in its discussion of the appellate court’s reliance on Watters v. Watters, 918 So. 2d 913 (Ala. Civ. App. 2005) that the Supreme Court levels its most striking criticism of the appeals court.

We first note that the record before us is in conflict with the Court of Civil Appeals’ conclusion that “the mother presented no evidence to indicate that the child would not continue to thrive while in pre-kindergarten under the same [four/four custody] arrangement.”     So. 3d at    , 2007 Ala. Civ. App. LEXIS 434, *13 . The testimony presented, including that of the mother [and the other witnesses], along with the inferences the circuit court was free to draw from the testimony, was more than adequate to call into question whether the child would “thrive” in the pre-K program if the four/four custody arrangement continued.

The Court of Civil Appeals also relied on the fact that the “only change” at issue involved what it termed a “natural progression of the child to prekindergarten school.”     So. 3d at    , 2007 Ala. Civ. App. LEXIS 434, *12 . To the extent that this statement implies that a “natural progression” cannot be a material change in circumstances, it is at odds with the practical realities of life. By definition, a “progression” reflects a change from some prior state, in this case from the prior state of facts on which the Tennessee trial court based its judgment. The issue is whether the change is a material one, so far as the custody of the child is concerned, whether it is natural or not. To say that a change of custody cannot be based on the change in the child’s needs simply because the change itself reflects a “natural progression” is to ignore the best interests of the child in favor of a more rigid, court manufactured view, particularly, where, as in the present case, there is no indication that the “natural progression” was considered as part of the basis for the prior judgment. Davis at 33-34.

In his concurring opinion, Justice Murdock attempted to clarify the standard for a change in a joint physical custody arrangement. He labeled as “confusing and misleading” the language often used to the effect that a change requires a showing of a material change of circumstances that has affected “the child’s welfare and best interest.” Justice Murdock said that “it is not necessary to show a change of circumstances that has adversely affected the child’s interests. . . . I believe a clearer way to express the operative standard is to say simply that the party seeking the custody modification must show (1) a material change in circumstances since the prior judgment and (2) that a change of custody in response to that change in circumstances will be in the child’s best interest.”


  1. Mark Davis says:

    I am the father in the above case. Court evidence proved our daughter was thriving in equal custody despite the mother and maternal grandmother does not value the father-child relationship. I moved to Florence right after the final hearing in this case just as I told the Tennessee court I would do prior to my daughter actually “starting school”. The church social worker testimony was the same in Alabama as it was in Tennessee. She saw our daughter only at church two Sunday’s each month.

    The judge and Supreme Court left out the fact that:

    1.) Judge Mike Suttle ruled it was more important for our daughter to attend a church day care Pre-K Program full-time – with a non college degree instructor – than spend part of that time with her nurturing father. A father that was teaching her the same educational needs – to which she had been accustomed since she was eighteen months old.; and

    2.) Equal custody was court ordered in Tennessee according to the Tennessee Court of Appeals (TCA) because, “the mother had refused to adhere to the plain requirements of the parenting plan, and that she had purposely and deliberately embarked on a course, which if not stopped would eventually erode the relationship between the father and child.” The TCA said this only fifteen months prior to Judge Suttle giving the mother primary physical custody, and final remand hearing in Tennessee had not taken place.; and

    3.) the mother used the same basis in Tenn hearing saying our eighteen month old daughter needed ‘spontaneity’ of daycare, full-time, thirty-five (35) hours per week so to prepare her for schooling instead of spending one day with her father. Nothing in her demeanor had changed when she went to the Alabama court requesting custody.

    Read her court testimony at wwww(dot)whyjudgesuttle(dot)com

    This will be challenged in the Supreme Court of the United States.

    Trial court evidence did not support this ruling!

  2. Michael A. Polemeni says:

    This appears to be a venue shopping case. The mother failed to get her way in Tennessee, so she moved to Alabama. My understanding was Alabama custody law was to follow another states ruling. It seems Alabama law picks what it wants when it wants.
    Alabama Family Law is broken. It has been stated in several meetings, that the Advisory Office has offered course in Family Law for lawyers and Judges; yet none have attended for over 15 years. Family Law is treated as a court of equity; my child is not “chattel”.

  3. Mark Davis says:

    “Likewise, the circuit court could have concluded generally that the father was being untruthful and evasive in his testimony and that he was attempting to mislead the court in an effort to obtain sole custody of the child.”

    The father here again.

    To clarify the Supreme Courts assumptions listed in your writings. My court testimony in the court record showed I wanted our daughter to keep the equal custody arrangement. I filed for custody because the mother was intent on our 4 year old daughter attending a public “full time” Pre-K program at a local school, which would require her to wait 30 minutes each afternoon for a bus to then transport her more than eight miles to a day care until the mother got off work. Any reasonable parent would not approve of a four year old waiting in this manner. Only after I filed custody, which was only two days prior to trial, did the mother decide her plan wasn’t a good idea. So our little girl stayed at the same day care she attended since birth.

    As for the Supreme Court saying I “instigated contentious conversations with the mother in the child’s presence.” This happened only one time and it was regarding the mother’s refusal for us to meet half way for an exchange as ordered by the Tenn. trial court. The mother being unreasonable and difficult had been consistent since our daughter’s birth and the mother not working with the father regarding parenting our daughter was factor that led to equal custody in Tennessee. Including the fact that she didn’t tell the father about the child’s doctor or day care. She didn’t tell me about her intent on pre-k either. That was discovered when the petition for custody modification arrived in the mail.

    Fact’s at trial show the mother refused most all verbal communications from the father and as such, most all communications were in writing. The main point here is nothing materially had changed, period, since the Tenn. equal custody order was put in place; including the fact the mother was still intent on eroding the father-child relationship.

    I do plan to post trial transcripts from Tennessee and Alabama on the web site only to prove that it is amazing a mother can have such behaviors toward the father-child relationship, and that brought to light at hearing, and the Alabama judge and the Supreme Court basically rewarded the her for such sorry actions. When you read the transcripts, if you take the time to read them, you will have a different opinion on this case. You will agree that the court of appeals made the correct decision.

  4. WhereamI? says:

    The first mistake as I see it was the dad contering with a motion for full custody instead of a motion to deny her petition to modify. Everyone always conters with sole custody. After a person files for sole custody the door opens for a bunch of nonsense. Can you imagine? I mean read what is being said by the courts, they are trying to define in legal terms the psychological consequences on a child. Courts have no business do that. That is what experts are for. Courts should be deciding the legal merits of a case NOT the psycological. I think that is what everyone and the courts miss. Lawyers and courts have no business in family business. THAT is the real problem.

  5. James Blackston says:

    Father should have stayed in Tennessee. It’s a known fact Tennessee has more compassionate judges to the “real” needs of children. I’m searching for an answer why the father left a state that granted him custody and moved to a backward state such as Alabama, whose only interest is child support establishment and collection.

    The moment father sets foot on Alabama soil, he loses all rights to this children. I know that’s not the law, but that’s how the law is applied in Alabama.

    If father had stayed in Tennessee, Alabama could not exercise jurisdiction over him. Too bad he moved to Alabama. Too late now.

    That’s a decision father will regret the rest of his life.

  6. Phillip Lackey says:

    Score one for ore tenus? That isn’t exactly what I take from this case. Anybody can say any thing in a court room with very little concern for the accuracy of their testimony. For instance, in the above case the “church social worker” speculates about the harm that will occur to the child should the staus quo be maintained in visitation. How does she know? I believe Mr. Davis’s comment regarding the number of times the “social worker” had interacted with the child (twice) to be correct as well. Does anybody know of any church in their community that has a staff social worker…I doubt it, especially not in Florence,AL. Then there is the testimony of an early childhood education professor from UNA. I don’t know if anybody out there is familiar with the curriculum leading to an early childhood education degree but last I checked it focuses on education of small children and not on the adverse or beneficial effects of various custodial relationships. Besides, I am sure the professor was compensated by the mother (not appointed by the court), making what ever the professor testified too inherently biased. Has anybody in a custody dispute ever heard of a court appointing a professor of early childhood education to report in regards to the best interest of a child? Of course not, courts appoint clinical professionals who spend their professional lives actually engaged in couseling children not teaching other school teachers.

    The bottom line here is that in the courts the rule of law should be applied given the “objective” evidence as it exist at the time of trial and not based on “subjective” speculation about what might occur in the future.

    Finally the court points out the “contentious conversation” that occured in front of the child. Obviously this phrasing is a deliberate phrasing to skirt the fact that while the conversation may have not been a positive one, it didn’t rise to the level of an assault. In our society only speech that is considered to be threatening (assault) or slanderous is considered to rise to the level of government imposed sanction. Last I checked “contentious conversations” are protected speech. God forbid that two people engaged in a divorce have a “contentious conversation”. The lawyer spin on this is of course that it occured in front of the child. God forbid two people engaged in a custody battle might be “contentious” and the child realize it. I think children of divorce actually already know that mom and dad don’t get along. Besides that, “contentious conversations” occur daily in the lives of children of parents who are not divorced. Sounds to me like the trial court did what so many trial courts do; they make up their mind and then select those findings of fact that support their decision ignoring the remainder and reaching for facts come up with silly euphamistic things like “contentious conversation”.

    Score one for ore tenus? I think not. Score one for a family court system that lacks the ability to seperate fact from speculation.

  7. Mark Davis says:

    The “contentious conversation” the court talks about took place over the telephone, while driving to the drop off location, after the mother refused to meet where the TN court had Ordered the parents to meet.

    The UNA child development teacher – Dr. Young also works at the university where maternal grandmother is assistant to the President. He has never met the child.

    At hearing, Dr. Young also said he has little knowledge of the Alabama Pre-k Initiative, but he is listed as the supervisor of the only Pre-k model classroom in Alabama, which is funded by a grant from the Alabama Pre-k Initiative, which is guided by the Alabama legislature’s Office of School Readiness. Their mission statement: “parents are the foremost teachers to young children.”

    The church Sunday school teacher attends the same church of the maternal grandmother and mother.

    Dr Young and Myra Carter testimony conflicts with Watters v. Watters (2005) (which was presented at trial) which states joint custody is favored as the official policy of the state. See the Code of Alabama (1975) 30-3-150.

    Discovered only after hearing: the judge prior to judgeship was employed at the law firm of the bother/President of UNA that hired the maternal grandmother at UNA. This is important to point out only because the maternal grandmother, Brenda Baker, made sure it was pointed out tot he judge and that he was aware of “who she was” regarding her employment status.

    The ASC said there ruling that courts should not speculate about the future, yet that is exactly what their opinion said they were doing.

    According to the U.S. Supreme Court, a legal judgment, ruling, order or opinion issued without any written explanation or issued based on “assumptions” violates Fundamental Rights, Associational Rights and Due Process Rights of the First and Fourteenth Amendment of the United States Constitution.

  8. Mr. Davis says:

    On June 29, 2007 when the Civil Court of Appeals handed down the opinion in this case reversing Judge Mike Suttle they also handed down another opinion outlining Troxel vs Granville. This U.S. Supreme Court Troxel (2000) case that said between fit parents and a judge, the judge should defer to the fit parents decision. ( Mr. Lee, why are you NOT writing about that case too?) Mike Suttle didn’t to that in our case and that is why he was reversed. Kudos to the Alabama Civil Court of Appeals for honoring federal Constitutional law. That is something the Alabama Supreme Court should have known, Constitutional law that is. Matters of law are NOT protected under ore tenus and that is where the Alabama Supreme Court failed the child and father in this particular case.

Comments are closed.