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.”