Preview:

Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CIVI L APPEAL S

OCTOBER TERM, 2008-2009

2070895

Andrea E. Adams
V.

Donnie M. Adams


Appeal from Elmore Circuit Court
(DR-07-900016.01)

PER CURIAM.

Andrea E. Adams ("the mother") and Donnie M. Adams ("the

father") were divorced pursuant to an April 12, 2007, judgment

that incorporated an agreement reached by the parties. Among

other things, the divorce judgment specified that the parties

had agreed to continue residing together and to share
household expenses until the marital residence could be sold.
The divorce judgment awarded the mother sole physical custody
of the parties' two minor sons, awarded the father visitation,
and ordered the father to pay child support.

In November 2007, the mother filed a petition to modify
the divorce judgment, seeking an increase of child support,
asking the trial court to grant her the exclusive use of the
marital residence, and requesting that the trial court require
the father to share equally in paying the mortgage
indebtedness on the marital residence. The mother also filed
a motion seeking to have the father held in contempt for
allegedly violating other provisions of the divorce judgment.

The father answered and denied liability; he later
counterclaimed seeking custody of the children and
reimbursement for alleged overpayments of child support and
household expenses. The father also moved the trial court to
hold the mother in contempt for misrepresenting material facts
on the CS-41 child-support form she submitted at the time the
divorce judgment was entered.

Following an ore tenus proceeding, the trial court, on
May 22, 2008, entered a judgment awarding sole physical
custody of the children to the father, ordering the mother to
pay the father $722 per month in child support, granting the
parties other relief not relevant to the issues presented on
appeal, and denying all other requests for relief. On June 5,
2008, the trial court entered an amended modification judgment
altering various provisions of its May 22, 2008, judgment that
are not relevant to the issues in this appeal. The mother
timely appealed.

The record indicates that the parties married in October
1998 and that they separated several times before the final
separation that ultimately resulted in their divorce. The
mother testified to several instances in which the father
shoved or kicked her during their marriage.^ The father

^Under the facts of this case, the trial court could
properly consider the parties' conduct before they divorced.
When "the divorce judgment incorporated an agreement of the
parties, and there was no testimony at the time of the divorce
concerning child custody issues [,] '... facts relating to the
parties' predivorce conduct should be considered by the trial
court in a modification hearing.'" Blume v. Durrett, 703 So.
2d 986, 988 (Ala. Civ. App. 1997) (quoting Wilson v. Wilson,
408 So. 2d 114, 116 (Ala. Civ. App. 1981)). The parties'
pleadings state that the divorce judgment incorporated a
settlement agreement. The mother's testimony indicates that

denied that testimony, and he stated that the mother had

committed acts of domestic violence against him. The father

stated that, on one occasion when the mother slapped him, one

of the parties' children had attempted to intervene and the

mother had hit the child in the back with her fist.

The parties presented evidence pertaining to a March 14,

2007, incident in which the mother alleged that the father had

kicked her and one of the children in an effort to make them

the parties did not present evidence or testimony on the issue
of custody of the children in the divorce proceeding:

"Q. Okay. And ya'll actually settled all of
the issues in this case by agreement; is that
correct?

"A. Yes, ma'am.

"Q. At that time did [the father] raise any
issues about you taking care of the boys?

"A. No, ma'am."

Accordingly, the trial court properly considered the parties'
predivorce conduct. Blume v. Durrett, supra; see also Godwin

V. Balderamos, 876 So. 2d 1169, 1174 (Ala. Civ. App. 2003)

(the trial court was not precluded from considering predivorce
conduct in a case in which the divorce action was never
tried); C.P. v. W.M., 806 So. 2d 395, 396 (Ala. Civ. App.
2001) ("[W]e have recognized [that evidence relating to
predivorce conduct may be presented when] the earlier judgment
awarding custody was based upon an agreement of the parties
and the facts sought to be adduced were not disclosed in the
proceeding giving rise to the earlier consent judgment.").

move over in bed. The mother called the police after that
incident. The father denied injuring the mother in that
incident, although the mother insisted she had been bruised on
her leg as a result of that incident. The police report
indicated that there were no visible signs of injury to the
mother after that incident. The mother had the father
arrested in October 2007 in connection with the March 2007
incident; he was later found not guilty of the domestic-abuse
charges.

Robyn Dees, a friend of the mother's, testified that she
had witnessed the father verbally abuse and physically
threaten the mother and that she had observed a bruise on the
mother resulting from the March 14, 2007, incident. Dees also
testified that she had observed the father push the mother out
of his way in order to enter the parties' house after they had
separated. The father testified that before he pushed the
mother on that occasion, the mother had pinched him.

The mother and Dees each testified that the mother had
been the children's primary caretaker during the marriage and
after the parties' divorce. The mother stated that the father
spent little time with the children because of his work

schedule. The mother testified that either she or her parents
had picked up the children after school, both before and after
the parties' divorce.

The father disagreed that the mother had been the
children's primary caretaker. He stated that he usually
picked up the children from school and that he had often taken
the children to medical and dental appointments. Several of
the father's friends stated that they believed the father had
been the children's primary caretaker. In addition, two of
the children's teachers testified that, until the time the
father filed his claim seeking a modification of custody, the
father had picked up the children from school almost every
day. One of the children's teachers testified that the father
had accompanied her class on all the class field trips.

The father testified that he believed that the mother was
attempting to interfere with his relationship with the
children. The father testified that, after he filed his claim
seeking a modification of custody, the mother refused to allow
him extra visitation with the children in excess of the
alternating-weekend and Wednesday-night visitation provided
for in the divorce judgment. The mother testified that the

father was never satisfied with the extra visitation she
allowed and that he constantly asked for additional
visitation.

The father also testified that the mother sometimes
brought the children to their sporting events but refused to
let them play or removed them before the end of the game,
apparently because she became angry with the father. The
father testified that, before the parties' divorce, he had
served as the coach for both children's sports teams. After
the divorce, the mother enrolled the children in sports in
another city, and the father could no longer coach their
teams. The mother testified that she had enrolled the
children in sporting events in another city because she was
under a restraining order to avoid the father and his friends
as a result of an incident discussed later in this opinion.

Much of the evidence presented by the father in support
of his custody-modification claim pertained to the mother's
allegedly violent or confrontational conduct toward others.
The father testified that the mother had had a problem with
anger during the parties' marriage but that it had intensified
since their divorce. The father and the witnesses he called

on his behalf, including some of the children's teachers, each
testified that the mother had a reputation for being
confrontational and untruthful.

Several of the father's witnesses testified that they had
been present when the mother cursed at the father or others
during the children's sporting events. The witnesses also
testified to other instances in which the mother had been
confrontational with other people and had used foul language.
It appears from the record that the parties' children were
present or nearby during those incidents. One woman stated
that she did not want her children to be around the mother
because of the mother's conduct and language during those
instances. Another woman testified that she had asked the
mother to refrain from using foul language in front of the
woman's children; the woman stated that, following that
request, the mother had telephoned her several times to make
"vulgar" or "aggressive" threats against the woman. A third
woman also testified that the mother had made threats against
her. The father testified that the mother had threatened to
kill him and a woman with whom the mother believed the father
was having a relationship. The mother denied making some of

those threats, and she explained or attempted to justify
others.

In addition, the mother testified about an incident in
which she was involved in a physical confrontation with
another woman at a local bar. In that confrontation, the
mother jumped over chairs and onto the other woman because the
woman had taken the mother's cigarettes.

The parties also presented evidence concerning an
incident at a ball park in which the mother allegedly swerved
her vehicle toward a woman whom the mother apparently believed
was romantically involved with the father. According to the
witnesses, the mother was driving through a ball- park parking
lot at a high rate of speed, drove toward the woman, and then
swerved away from the woman and left the parking lot. The
mother testified that, during that incident, she had been
angry at the father and distracted because one of the
children, who was with her in the car, was sick. The mother
stated that she had not seen the woman and that she did not
remember swerving toward the woman. As a result of that
incident, the mother was charged with reckless endangerment
and the previously mentioned restraining order was entered

against her. The mother later pleaded guilty to a lesser
charge of reckless driving in connection with that incident.

The mother remarried in January 2008, at approximately
the same time the father sought to modify custody of the
children. At the time of the hearing in this matter, the
mother was pregnant. A teacher for one of the children
testified that the child's grades had declined since January
2008, but it is not clear whether the mother's remarriage, the
custody action, or both, caused that decline.

The father is a captain with the Montgomery Fire
Department. During the parties' marriage and until shortly
before the modification hearing, the father's work schedule
required him to work 24 hours on duty, followed by 48 hours
off duty. During the parties' marriage, the father also owned
and operated a lawn-care business. The father testified that
he had recently begun working for the fire department on the
day shift (7:30 a.m. to 4:30 p.m.) so that he would be
available to care for the children if he were awarded custody
of them.

The father testified that his annual salary at the Fire
Department is $50,400 and that his gross monthly income is

$4,200.32. He stated that, during the parties' marriage, his
lawn-care business had produced income, but, he said, he was
discontinuing that business because, with his change to the
day shift at the Fire Department, he did not have time to cut
grass, he was steadily losing customers, and the lawn-care
business was "not being productive."

The mother did not work during the parties' marriage
until the parties' youngest child began kindergarten.
Thereafter, she worked as a legal secretary. At the time of
the modification hearing, the mother was not working,
apparently because of her pregnancy. The mother conceded that
she was capable of earning a salary of $33,000, which was the
amount she had earned at her most recent employment.

The mother first argues that the trial court erred in
modifying custody because, she contends, the father failed to
present sufficient evidence to satisfy the standard for
modifying custody announced in Ex parte McLendon, 455 So. 2d
863 (Ala. 1984). A parent seeking to modify a custody
judgment awarding primary physical custody to the other parent
must meet the standard for modification of custody set forth
in Ex parte McLendon. Under that standard, the parent seeking

to modify custody of a child must demonstrate that there has
been a material change in circumstances, that the proposed
change in custody will materially promote the child's best
interests, and that the benefits of the change will more than
offset the inherently disruptive effect caused by uprooting
the child. Ex parte McLendon, supra. A parent seeking to
modify a previous custody order bears a heavy burden of proof.
Vick V. Vick, 688 So. 2d 852 (Ala. Civ. App. 1997). The
mother contends that the father did not meet the required
burden of proof set forth in McLendon.

As an initial matter, we must address the father's
contention in his brief on appeal that the mother's argument
pertaining to custody was not preserved for appellate review;
in making his argument, the father relies on New Properties,

L.L.C. V. Stewart, 905 So. 2d 797 (Ala. 2004). In that case,
our supreme court held that "in a nonjury case in which the
trial court makes no specific findings of fact, a party must
move for a new trial or otherwise properly raise before the
trial court the question relating to the sufficiency or weight
of the evidence in order to preserve that question for
appellate review." New Properties, 905 So. 2d at 801-02. The

father contends that because the mother did not file a

postjudgment motion challenging the sufficiency of the

evidence supporting that part of the trial court's judgment

pertaining to the modification of custody, the mother is

prevented by the holding in New Properties from raising that

issue on appeal. We disagree.

In New Properties, in entering its judgment, the trial

court made no findings of fact; rather, "it simply found in

favor of [the plaintiff] and awarded $250,000 in damages."

905 So. 2d at 802. In the case presently before this court,

the trial court made the following factual findings in its

judgment:

"The Court heard numerous witnesses and observed
their demeanor and also received documentary
evidence. The Court finds that the [mother's]
testimony was not credible. The Court further finds
that domestic violence was committed by both parties
during the marriage. ^^^ Thus, any presumptions
against either party created by the domestic
violence statutes (

Download 2070895.pdf

Alabama Law