You Didn’t Say “Mother May I”!

What does it take to get a family law ruling affirmed around here these days? Here’s a hint: if you’re a judge changing primary child custody in Alabama, you better say the word “McLendon.”

This is getting familiar. This particular case is Wood v. Wood, Case No. 2080212 (Ala. Civ. App. August 28, 2009), but the pattern is monotonous. Mom and Dad divorced in 2000. Joint custody of the one child; primary residence with Mom and visitation with Dad. When Dad’s work schedule changed, the parties agreed (according to Mom because Dad intimidated her) for the child to spend one week with Mom and one week with Dad.

Dad filed a petition for modification, seeking custody of the child and child support from Mom. Mom counterclaimed, seeking back child support from Dad, sole custody of the child, and specific changes to Dad’s visitation schedule. After Dad filed his petition, Mom cut him back on his visitation to that in the original order. Dad asked for a pendente lite order for alternating weeks of visitation with the child, and the trial court granted Dad’s motion.

After hearing, the trial court gave Dad custody. The court set Dad’s arrearage at $23,860 and ordered him to pay it at $226.38 per month, but it set Mom’s child support at an identical figure, which resulted in a wash. Mom appealed, raising three questions: (1) whether the trial court applied the correct custody-modification standard; (2) whether the trial court’s judgment granting the father’s petition to modify custody was supported by sufficient evidence; and (3) whether the trial court erred when it determined the amount and method of payment of the father’s child-support arrearage. The appeals court considered only Mom’s first issue, however, because it determined the trial court’s ruling was due to be reversed.

The trial court was silent about the standard it used to determine that a change of custody was warranted. The appeals court said that it was unable to discern the standard the trial court had used and that it was therefore reversing the trial court’s judgment “for the trial court to consider the evidence in light of the McLendon standard.” Wood at 8.

In so ruling, the appeals court rejected Dad’s argument that the burden had shifted from him to Mom because she had voluntarily transferred custody to him, citing Nicholas v. Nicholas, 464 So. 2d 527 (Ala. Civ. App. 1985). The mother in Nicholas had turned custody over to the father, who had then turned over custody to his parents. When the mother sought custody, the Nicholas court ruled that she now had the burden of proving both that she was fit as a parent and that the change would promote the child’s best interests (part of the McLendon standard). The appeals court distinguished Nicholas from this case, however, observing that Mom’s decision to allow the child to spend alternating weeks with Dad “is hardly indicative of the mother’s voluntarily relinquishing custody of the child. Therefore, the burden of proof in this case was on the father, and not on the mother, to show that a modification of custody met the McLendon standard.” Wood at 7-8.

Judge Moore dissented. His dissent was short, so I’ll quote it in its entirety:

I respectfully dissent from the majority opinion’s reversal of the trial court’s judgment modifying custody of the parties’ child. In the present case, there is no indication in the record that the trial court applied the wrong custody-modification standard. “This court will not presume error on the part of the trial court.” Pickett v. Pickett, 792 So. 2d 1124, 1128 (Ala. Civ. App. 2001). Furthermore, “[a] trial court need not include a recital of findings of fact or conclusions of law in its final order unless a statute specifically requires it to do so.” Taylor v. Taylor, 387 So. 2d 849, 852 (Ala. Civ. App. 1980), overruled on other grounds, Ex parte McLendon, 455 So. 2d 863, 866 (Ala. 1984).  I agree with Judge Crawley’s dissent in C.A.M. v. B.G.H., 869 So. 2d 507 (Ala. Civ. App. 2003), stating that “[o]ur supreme court has held that, in a situation such as the one presented in this case, this court should review the evidence in light of the standard set out in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), rather than remand the case to the trial court for it to conduct the review.” 869 So. 2d at 508 (citing Ex parte Johnson, 673 So. 2d 410 (Ala. 1994), opinion on remand, 673 So. 2d 414 (Ala. Civ. App.), petition for writ of mandamus granted, Ex parte Breedlove, 673 So. 2d 415 (Ala. 1995)).

You tell’em, Judge. I’m ambivalent on this one, because from the little bit of information available the trial court’s ruling seems unfair to Mom. Maybe the majority felt the same way too and wanted to help Mom. But that’s not the role of the appeals court. The appeals court should reverse the trial court only when the trial court gets the law wrong or when the trial court’s factual findings are “plainly and palpably erroneous or manifestly unjust.” Arzonico v. Wells, 589 So. 2d 152, 153 (Ala. 1991); Browning v. Carpenter, 596 So. 2d 906 (Ala. 1992). I don’t see evidence of either here.

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