Rel: August 22, 2025
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) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2025 _________________________
CL-2024-0897 _________________________
Daniel Colby Courson
v.
Heather C. Hurston
Appeal from Russell Circuit Court (DR-17-900165.02)
EDWARDS, Judge.
Daniel Colby Courson ("the father") appeals from an August 26,
2024, judgment entered by the Russell Circuit Court ("the trial court").
That judgment modified a previous custody-modification judgment
entered by the trial court on May 24, 2023 ("the May 2023 custody- CL-2024-0897
modification judgment") by awarding Heather C. Hurston ("the mother")
sole physical custody of the parties' two sons, B.C. ("the older son") and
C.C. ("the younger son"); the older son and the younger son are sometimes
referred to collectively as "the children." The record reveals the following
pertinent procedural history.
Pursuant to the May 2023 custody-modification judgment, the
father and the mother had been awarded joint legal custody of the
children, and the father had been awarded sole physical custody of the
children, subject to the mother's right to specified visitation. On June 13,
2023, the mother filed a postjudgment motion to alter, amend, or vacate
the May 2023 custody-modification judgment or, in the alternative, for a
new trial. Despite conducting a hearing, the trial court did not enter an
order on the mother's postjudgment motion, and the mother's
postjudgment motion was denied by operation of law on September 11,
2023. See Rule 59.1, Ala. R. Civ. P.
On September 20, 2023, not quite four months after the trial court
entered the May 2023 custody-modification judgment and just over a
week after her postjudgment motion was denied by operation of law, the
mother filed a petition seeking to modify the custody of the children.
2 CL-2024-0897
Invoking Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), the mother
asserted in her petition that there had been a material change in
circumstances since the entry of the May 2023 custody-modification
judgment. The mother alleged that the father had alienated the children
from her; that, as she had argued in the custody-modification trial held
in April 2023, Carol Childs ("the paternal grandmother") was the
children's actual primary caregiver; and that Childs would not
communicate with her regarding the children. The trial court conducted
a two-day trial on July 24, 2024, and August 9, 2024, and heard testimony
from the mother and the father. The following information was revealed
at trial.
The mother testified that she lived in Cedartown, Georgia, and that
she had remarried in 2021, before the entry of the May 2023 custody-
modification judgment. She testified that she was employed at the time
of the 2024 modification trial as a medical receptionist and that she
worked 10-hour shifts 4 days each week.1 The father, who is a
landscaper, indicated that he still maintained the same employment and
work schedule that he had had in May 2023. The father testified that he
1The mother indicated that she worked Tuesday through Friday.
3 CL-2024-0897
typically left for work at 6:47 a.m. and returned home by 4:30 p.m. He
testified that he still resided in the same residence in Phenix City in
which he had been residing at the time of the entry of the May 2023
custody-modification judgment and that he resided there with the
children; the paternal grandmother; the paternal grandmother's
husband, Brian Childs ("the paternal stepgrandfather"); and the father's
cousin, Abbey Gualtney ("the paternal cousin"). He testified that the
paternal grandmother was responsible for taking the children to school
in the mornings and picking them up in the afternoons.
The mother's testimony largely focused on her general displeasure
with the father's coparenting after the conclusion of the April 2023
custody-modification trial. She testified that she believed that the father
had not adequately communicated with her regarding the children and
had not always responded to her numerous and repetitive inquiries
regarding the children; the father acknowledged that he had not always
responded to the mother's messages. The record indicates that the
parties' coparenting issues had been a focus of the previous custody-
modification action. The record also indicates that the parties had
4 CL-2024-0897
steadily improved their communication and coparenting skills since the
entry of the May 2023 custody-modification judgment.
The record indicates that the May 2023 custody-modification
judgment provided that the mother was to have a "right-of-first-refusal"
regarding caring for the children when the father was unable to do so.
The mother asserted that the father had allowed the children to remain
with the paternal grandmother when he was unable to provide care for
the children at least three times without consulting her first. The mother
further noted that, on days that the children were sick or were otherwise
not in school, the father had allowed the paternal grandmother to care
for the children without offering the mother the opportunity to care for
them.
The record also reflects that the father had permitted the mother
to exercise expanded visitation in September and October 2023 and in
February and March 2024. The father testified that he had accepted the
mother's proposed summer-visitation schedule in 2023 and had
cooperated with the mother in devising a summer-visitation schedule for
the children in 2024. Both of those summer schedules appear to have
5 CL-2024-0897
expanded the mother's visitation. The mother admitted that the father
had not prevented her from exercising her visitation with the children.
The mother expressed concern that, in August 2023, the father had
provided the older son with a new cellular telephone that had been
previously owned by the paternal stepgrandfather. 2 The mother testified
that her telephone number had not been programmed into the telephone
and that her number had been blocked from calling the older son's
telephone. The father testified that the paternal cousin had programmed
the telephone and that he had not had an opportunity to check the
telephone before the children's scheduled visitation with the mother
following the older son's acquisition of the telephone. He also testified
that he had not blocked the mother's telephone number once it was
programmed into the telephone and that he and several family members
had attempted to correct the issue; the father said that eventually he had
taken the telephone to Verizon Wireless, the telephone's service provider,
and that it was discovered that a feature had been enabled that
2The record indicates that this telephone is the older son's second
cellular telephone.
6 CL-2024-0897
forwarded the mother's telephone calls to the older son's voicemail inbox.3
The father testified that, during the period the cellular telephone would
not receive calls from the mother's cellular number, the mother had still
been able to call the older son on his tablet and that the older son had
been permitted to go to a different room so that he could speak to the
mother in private.
The mother and the father both testified that the older son had
accessed inappropriate material on a previous telephone. As a result, the
mother had requested the passcode to the older son's new telephone and
had prohibited the older son from bringing the telephone to visitations
until she had obtained the passcode. She testified that the father had
failed to provide that passcode to her. The father testified that he had
provided the passcode to the older son's telephone to the mother and that
she had continued to ask for the passcode to make it appear that he had
not cooperated with her. The mother also testified that the older son had
sent a "coded" text message to the father; the older son had sent the word
"blue" to the father, prompting the father to ask the older son if
3The father testified that he had taken the telephone to Verizon
Wireless on August 8, 2024, the day before the second trial date. 7 CL-2024-0897
something was wrong. The father denied having used any form of code
when he communicated with the children.
The mother also testified that she believed that the father had not
adequately monitored and participated in the children's education. 4 The
record reveals that, at some point during the 2023-2024 school year, both
children's grades had fallen, with the older son earning "C" level grades
and the younger son earning lower grades. Both parents indicated that
the children were capable of higher grades. The mother asserted in her
testimony that the father had not taken an active role in the children's
education after he had been awarded sole physical custody of the children
and that he had failed to verify that the children were completing their
homework assignments. 5 The father testified that he had "worked hard"
with the children on their schoolwork and that, after their grades had
fallen, he had increased the amount of time he worked with the children
4At the time of the July 2024 custody-modification trial date, the
older son had completed the fifth grade, and the younger son had completed the second grade. Both children had been promoted to their respective next grade levels.
5Both parents testified that the homework assignments were not a
component of the children's final grades.
8 CL-2024-0897
on their schoolwork each night. As a result, the father testified, the
children's grades had improved after February 2024. 6 The mother
testified that, if she were awarded sole physical custody of the children,
they would attend schools that were in session four days each week
instead of five days each week. 7 The mother further explained that she
would be able to better provide for and monitor the children's education
if the children attended school in Georgia because, she said, she did not
work on Mondays, which coincided with the day that the children would
not attend school. Thus, the mother asserted, she would be able to spend
more time with the children and better supervise their educations.
6The children's declining grades were discussed in a February 2024
pendente lite hearing.
7According to the mother, the Georgia schools that the children would attend if they were placed in her custody start and end at approximately the same time each day as the Alabama schools the children were attending at the time of the custody-modification trial. The record does not indicate whether the Georgia school year commences earlier in the year or concludes later in the year than does the school year at the children's current schools. The mother did not elaborate on any benefits related to a reduced number of days of weekly school attendance other than to state that the schedule would allow her to spend more time with the children.
9 CL-2024-0897
The father also testified that the older son's "interventional
teacher," Marian Smalley, had been tutoring the children over the
summer at the father's request. During the trial, there was significant
confusion regarding Smalley's identity. Documentary evidence revealed
that the father had referred to Smalley as "Ms. Molly" in text
conversations with the mother. 8 The mother testified that she did not
know "Ms. Molly" and that the older son's school had reported that they
did not have an employee with the last name "Molly." The mother also
maintained that she had not known that the older son had an
interventional teacher; the father asserted that "Ms. Molly" had been the
child's interventional teacher for several years. The father refused to
provide Smalley's contact information to the mother because, he said,
Smalley had requested that he not provide the mother with that
information. 9 The father further testified that the mother had a
reputation at the children's schools for harassing the teachers and staff.
8We generally refer to Smalley by her actual name. We use "Ms. Molly" when appropriate based on the evidence or testimony of the parties.
9The father testified that he communicated with Smalley through
Facebook Messenger, a text-message application, and that he had deleted their messages "for room" on his telephone. 10 CL-2024-0897
The mother also testified that the children had demonstrated
behavioral issues after the father was awarded sole physical custody.
She indicated that the children had generally been disrespectful toward
her and at school; she asserted that they had imitated behavior that they
had learned from the father. The mother also stated that the older son
had displayed "a lot of hate" toward her after she had moved to Georgia.
The mother acknowledged that she had moved to Georgia in 2021 after
she had remarried and that she had left the children in Alabama with
the father at that time. She further admitted that the children's behavior
had worsened after she moved to Georgia and conceded that the
children's behavior toward her might have been influenced by that
decision.
The mother also testified that the children had been diagnosed with
attention-deficit/hyperactivity disorder ("ADHD"). She testified that she
believed that the father had delayed for several months his providing the
forms necessary to schedule the younger son's ADHD tests with the
doctor; the father asserted that the younger son's teacher had not
11 CL-2024-0897
returned a form in a timely manner.10 The mother testified that, based
on the children's diagnoses and behavioral issues, she and the father had
agreed in March 2024 to enroll the children in counseling with a
counselor located in Columbus, Georgia.11 The mother testified that the
children's behavior had improved after they began attending counseling
and also opined that their behavior had improved, in part, because they
had been spending more time with her in the summer. 12 She also
partially attributed the improvement in the children's grades to their
counseling sessions.
10Based on the record, it appears that the children's physician required that the children's teachers and the parents complete specific forms before testing the children for ADHD. One of the younger son's teachers completed a form for the older son to be tested for ADHD in November 2023. The father submitted the teacher-completed form and parent form that he had completed for both children to the doctor in February 2024. The mother testified that she had arrived at that same doctor's office when the father was submitting the forms and that the father had agreed to her request to jointly complete new parent-specific forms at that time.
11The parents testified that they had jointly decided to utilize counseling instead of medication for the children's ADHD due to the side effects the medication could have on the children.
12The record indicates that the children had individual sessions with the counselor and that the parents generally did not discuss the counseling sessions with the children. 12 CL-2024-0897
The mother also testified that the paternal grandmother was the
primary caregiver for the children; the father asserted that the paternal
grandmother's primary child-rearing functions were taking the children
to and from school and caring for the children until the father returned
home from work. The trial court noted that "in previous hearings" it had
believed that the paternal grandmother was too involved in the children's
rearing. 13 The mother also testified that the paternal grandmother
generally refused to communicate with her. 14 The record indicates that
the lack of cooperation between the mother and the paternal
grandmother predated the entry of the trial court's May 2023 custody-
modification judgment. However, the mother also acknowledged that the
children frequently were permitted to telephone the mother when they
were in the paternal grandmother's care.
13The trial court also commented that it was not convinced that the
paternal grandmother's actions created a material change in circumstances warranting a change in custody.
14Documentary evidence indicated that the father had asserted that
the paternal grandmother was not required to communicate with the mother. The trial court noted that that was contrary to its oral instructions in the previous hearings in the current action. The record does not contain a written order relating to communication between the mother and the paternal grandmother. 13 CL-2024-0897
The mother further testified that she believed that it was
inappropriate that the older son occasionally slept in the same bed as the
paternal grandmother and the paternal stepgrandfather and that she
had communicated her concern to the father. She testified that she did
not consider the children's sleeping with either parent to be
inappropriate. The father testified that, in response to the mother's
concerns, he had been working with the children on sleeping in their own
beds more consistently and that, as a result, the children generally slept
in their own beds.
The mother also expressed concern for the children's physical well
being while in the father's care. The mother testified that she frequently
had made the two-hour drive from her new residence in Cedartown,
Georgia, to Phenix City, Alabama, to transport the children to a medical
clinic because she believed that the father and the paternal grandmother
frequently had not taken the children to the doctor when she believed it
was necessary. The father testified that he believed that the mother
generally overexaggerated the children's medical issues. In support of
her opinion that the father did not adequately care for the children, the
mother recounted a February 2024 incident in which the older son was
14 CL-2024-0897
bitten by a spider while in the paternal grandmother's care. The mother
asserted that the father and the paternal grandmother would not take
the older son to the doctor despite the older son's leg being severely
swollen, and, she said, they had delayed informing the mother of the older
son's condition. The father presented evidence indicating that he had
informed the mother of the older son's condition once he became aware of
it, and the mother later clarified that the paternal grandmother had sent
her a picture of the older son's leg once the mother had requested it. The
mother also testified that she had directed the father to have the older
son call her "immediately" concerning his injury and that she had been
able to speak with the older son about the bite.
The mother also stated that the father had not initially taken the
younger son to the doctor regarding an ear infection that had caused the
younger son severe pain. 15 The father explained that there was no
indication that the younger son was in pain until he was on a telephone
call with the mother, and, he said, he had taken the younger son to the
doctor once the child began complaining. The younger son also suffered
15This incident occurred approximately two days before the modification trial began on July 24, 2024. 15 CL-2024-0897
from fecal impaction, a form of severe constipation, in late 2023. The
mother asserted that the father had not adequately cared for the younger
son during that time; the father asserted that he had followed the
instructions provided by the mother and that he had communicated with
the mother regarding the younger son's condition.
At the conclusion of the trial, the trial court asked April Logan-
Russell, the children's guardian ad litem, to present a recommendation
to the court regarding the children's custody. Logan-Russell initially
stated that she did not have a recommendation but that she did have "a
whole list of things [that she would] like to talk about." She stated that
she believed that the father had intentionally kept the mother "out of the
loop" regarding the children and that that type of conduct had predated
the entry of the May 2023 custody-modification judgment. She also
stated that she believed that the children's behavior toward the mother
had improved after they spent more time with the mother; she conceded
that the children's separation from the mother was largely because the
mother had "left the kids with [the father]." She further noted that she
believed that the father and his family had spoken negatively about the
16 CL-2024-0897
mother in the presence of the children.16 After the trial court again
requested a recommendation, Logan-Russell stated the following:
"Well, here's why I think there could be a material change. The only reason I think that is because [the father] has been put on notice since the very beginning of this thing, and he continues to do the same things that were happening. That's my issue with it. To me, that could be a material change, like why are you not fixing it. You've been told a million times let's try to fix this, so that's my issue. That's why I think there is a material change and that let's give [the mother] a shot at it and see if she has them four days a week and then lets [the father] have them the alternating time and see if that fixes it because these kids are [emotionally] suffering as it stands right now."
The trial court stated on the record that it was "not at all happy about
the way the [paternal] grandmother has acted nor am I happy about the
way [the father] has acted." The trial court also stated that if it did award
the mother custody, it would be because the father was at fault and that
if it did not award the mother custody and "[the case] comes back again,
[modification will occur] the next time and it's going to be [the father's]
fault." In addition, the trial court commented without elaboration that it
saw "some possible benefit in a change of custody with the schedule" but
stressed that it had not yet decided the issue of the children's custody.
16The father denied making such comments.
17 CL-2024-0897
On August 26, 2024, the trial court entered an "Amended
Modification Order" awarding the mother sole physical custody of the
children subject to specified visitation being awarded to the father. 17 In
reaching its decision, the trial court stated that
"[t]he Court is of the opinion that the [m]other has met the burden of proof under McLendon, such that she should be granted physical custody of the minor children over the father. The Court specifically finds, among other things, that based on the ore tenus testimony and evidence presented in open court, the benefits of the change in custody would more than offset the inherent disruptive effect of said change, to wit: that the children, who are suffering with their educations in school, would benefit from smaller classroom settings, a truncated school schedule (Tuesday through Friday), more structure with their [m]other as it appears the [f]ather works long hours and that the children are mostly cared for by the grandparents, and a family home where the children's needs and interests can be the center of focus. Not only was this the recommendation of [Logan-Russell], but the Court has serious concerns about the [f]ather's involvement in the children's rearing at this point.
"This reversal by the Court does not contradict the ... initial concerns about the [m]other's move away to Georgia when she left the children with the [f]ather but highlights the fact that the [f]ather has not, in the Court's opinion, taken his role as sole physical custodian of the minor children with the gravity that such a responsibility deserves. Nor does it appear that the [f]ather's willingness to co-parent is nothing more
17The "Amended Modification Order" amended a "Modification Order" the trial court had entered 10 minutes before the amendment. The differences between the two orders have no bearing on our recitation of the facts or our analysis. 18 CL-2024-0897
than a formality, often times giving way to instances of plausible deniability. Nor does it excuse the [m]other's sometimes overbearing conduct during their interactions. They both need to put the needs of the children first!"
The father filed a postjudgment motion asserting that the mother had
failed to meet the standard set forth in Ex parte McLendon. After a
hearing, the trial court denied the father's postjudgment motion.
On appeal, the father asserts that the evidence did not satisfy the
high standard required to modify the physical custody of the children set
forth in Ex parte McLendon.
" 'When this Court reviews a trial court's child- custody determination that was based upon evidence presented ore tenus, we presume the trial court's decision is correct: " 'A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....' " '
"Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001) (quoting Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994), quoting in turn Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993)). However, when the question presented on appeal is one of law, the ore tenus rule has no application. Ex parte Perkins, 646 So. 2d at 47. Likewise, there is no presumption of correctness regarding the trial court's application of the law to the facts. Amie v. Conrey, 801 So. 2d 841, 846 (Ala. Civ. App. 2001). This court reviews questions of law de novo. Alabama State Bar v. Caffey, 938 So. 2d 942, 945 (Ala. 2006)."
19 CL-2024-0897
Brooks v. Brooks, 991 So. 2d 293, 300 (Ala. Civ. App. 2008).
Further,
"[t]he law is well settled that '[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[, 455 So. 2d 863 (Ala. 1984) ].' Adams v. Adams, 21 So. 3d 1247, 1252 (Ala. Civ. App. 2009). The custody-modification standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), requires that
" 'the noncustodial parent seeking a change of custody must demonstrate (1) "that he or she is a fit custodian"; (2) "that material changes which affect the child's welfare have occurred"; and (3) "that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child." Kunkel v. Kunkel, 547 So. 2d 555, 560 (Ala. Civ. App. 1989) (citing, among other cases, Ex parte McLendon, 455 So. 2d 863, 865-66 (Ala. 1984) (setting forth three factors a noncustodial parent must demonstrate in order to modify custody)).'
"McCormick v. Ethridge, 15 So. 3d 524, 527 (Ala. Civ. App. 2008). It is not sufficient for a noncustodial parent seeking a modification of custody to show that he or she is a fit custodian. Id. The noncustodial parent must prove all three McLendon factors in order to warrant a modification of custody. Id."
Walker v. Lanier, 180 So. 3d 39, 42 (Ala. Civ. App. 2015). In addition,
"[t]he need for stability in a child's life necessitates the requirement that the party seeking the modification prove to the court's satisfaction that 'material changes affecting the child's welfare since the most recent decree demonstrate that
20 CL-2024-0897
custody should be disturbed to promote the child's best interests.' Wood v. Wood, 333 So. 2d 826, 828 (Ala. Civ. App. 1976). Consequently, frequent disruptions are condemned. Wood."
Hermsmeier v. McCoy, 591 So. 2d 508, 509 (Ala. Civ. App. 1991).
The father asserts that the evidence did not support the presence
of a material change in circumstances and that there was no evidence
presented to suggest that the benefits of awarding the mother sole
physical custody of the children would outweigh the disruptive effect of
uprooting the children. We stated in Gallant v. Gallant, 184 So. 3d 387,
393 (Ala. Civ. App. 2014), that,
"[i]n keeping with the rationale behind the doctrine of res judicata, the supreme court decided that, in order to prevent 'oft-repeated, harassing litigation over the custody of infants,' a final child-custody determination, like any other judgment, could not be reopened for reconsideration of the correctness of the judgment. Sparkman v. Sparkman, 217 Ala. 41, 43, 114 So. 580, 581 (1927)."
However, "if a party could satisfactorily prove that circumstances had
changed in a significant way since the entry of the earlier judgment, the
doctrine of res judicata would not preclude a new determination of child
custody based on those changed circumstances." Gallant, 184 So. 3d at
393. Thus, we emphasize that Ex parte McLendon requires that, in order
to prevail on a custody-modification petition, a party seeking to modify a
21 CL-2024-0897
previous custody judgment must establish that a material change in
circumstances has occurred since the entry of the previous custody
judgment. See Brooks, 991 So. 2d at 301 (explaining that the parent
seeking a modification of custody is "required to show, among other
things, that material changes that affect the child's welfare [have]
occurred since the original award of custody"). "A material change of
circumstances occurs when important facts unknown at the time of the
initial custody judgment arise that impact the welfare of the child."
K.E.W. v. T.W.E., 990 So. 2d 375, 380 (Ala. Civ. App. 2007). Thus,
because it modified the children's custody, the trial court must have
found that a material change in circumstances had occurred since the
entry of the May 2023 custody-modification judgment. We conclude that
the record does not support such a finding.
The trial court relied on the father's work schedule, the paternal
grandmother's role as a caregiver for the children, and the children's
declining grades as bases for modifying the May 2023 custody-
modification judgment and awarding the mother sole physical custody of
the children. Our review of the record indicates that, at the time of the
2024 trial, the father maintained the same employment and schedule
22 CL-2024-0897
that he had before the entry of the May 2023 custody-modification
judgment and that his living situation had also not changed. The record
also indicates that the paternal grandmother was a caregiver for the
children before the entry of the May 2023 custody-modification judgment
and that the issues between her and the mother similarly predated the
entry of the May 2023 custody-modification judgment. See S.L.L. v. L.S.,
47 So. 3d 1271, 1279 (Ala. Civ. App. 2010) ("Because at the time the
juvenile court awarded custody of the child to the father the juvenile
court fully expected the father to require a significant amount of
assistance from the paternal grandmother, the evidence indicating that
the paternal grandmother, in fact, provided such assistance to the father
does not indicate a change in circumstances warranting a custody
modification."); Johnson v. Johnson, 262 So. 3d 1229 (Ala. Civ. App. 2018)
(providing that the father's use of a nanny, which predated the original
custody order, did not support a modification in custody). Similarly, as
Logan-Russell stated, the parents' issues with communication predated
the entry of the May 2023 custody-modification judgment. The record
establishes that each of those facts were known to the trial court at the
time it entered the May 2023 custody-modification judgment and were
23 CL-2024-0897
therefore not material changes in the circumstances of the children, and,
therefore, those facts could not provide a sufficient foundation to modify
the children's custody. See C.E. v. C.C.H., 963 So. 2d 131, 135 (Ala. Civ.
App. 2007) (reversing a custody-modification judgment, in part because
"[n]othing in the testimony at trial established a material change in
circumstances affecting the child's welfare such that custody should be
changed").
The only change in the children's circumstances since the entry of
the May 2023 custody-modification judgment was the children's declining
grades at their respective schools. The father relies on Jenkins v.
Jenkins, 541 So. 2d 19, 20 (Ala. Civ. App. 1989), for the proposition that
declining grades are not a material change in circumstances when the
parents have implemented a plan to correct the declining grades. We
note that our holding in Jenkins concerned whether the noncustodial
father had proven that a change in custody would materially promote the
welfare and best interest of the child, not whether there had been a
material change in circumstances. Nonetheless, we agree with the
father's assertion that the record in this case does not support a finding
that the children's declining grades, by themselves, are a material change
24 CL-2024-0897
in circumstances that affected the welfare of the children. Although both
parents testified that the children's grades had declined and that the
children were capable of better grades, the record is unclear how far the
children's final grades had actually fallen relative to the children's
normal grades or how the children's declining grades had affected their
welfare. We also note that the father testified that, after the children's
grades had fallen, he had increased the amount of time that he spent
with the children on their schoolwork, that their grades had improved,
and that the children had been promoted to their respective next grade
levels. We further note that the father testified that he had invited the
older son's interventional teacher to tutor the children during the
summer. See, e.g., Ladden v. Ladden, 49 So. 3d 702, 717 (Ala. Civ. App.
2010) (concluding that a child's declining grades were not a material
change in circumstances because the custodial mother had personally
taken steps to help the child after her grades had fallen and had secured
the services of a tutor for the child).
The mother also attempts to rely on Jenkins "as good precedent for
the [ore tenus] standard of review … and [as] an excellent example of an
25 CL-2024-0897
appellate court adhering to that standard."18 The mother's brief at 40.
Thus, the mother asserts that this court is effectively bound by the ore
tenus presumption of correctness afforded to the trial court and must
affirm its judgment. However, our supreme court has held:
" '[T]he ore tenus standard of review has no application to a trial court's conclusions of law or its application of law to the facts; a trial court's ruling on a question of law carries no presumption of correctness on appeal.' Ex parte J.E., 1 So. 3d [1002,] 1008 [(Ala. 2008)] (citing [Ex parte] Perkins, 646 So. 2d [46,] 47 [(Ala. 1994)], and Eubanks v. Hale, 752 So. 2d 1113, 1144-45 (Ala. 1999)). This Court ' "review[s] the trial court's conclusions of law and its application of law to the facts under the de novo standard of review." ' Id. (quoting Washington v. State, 922 So. 2d 145, 158 (Ala. Crim. App. 2005))."
Espinoza v. Rudolph, 46 So. 3d 403, 412 (Ala. 2010) (emphasis added).
See also Brooks, 991 So. 2d at 302. As discussed above, the children's
declining grades did not constitute a material change in circumstances,
and the other facts considered by the trial court were ongoing issues that
predated the entry of the May 2023 custody-modification judgment.
18In his appellate brief, the father asks us to strike the mother's
brief on appeal for untimeliness. We therefore treat his brief as a motion to strike the mother's brief. Over the father's objection, we granted the mother's request for an enlargement of time for filing her brief on appeal; her brief was due on May 29, 2025. The mother filed her brief on May 29, 2025, and, thus, it was timely filed. Therefore, we deny the father's motion to strike. 26 CL-2024-0897
Thus, the mother failed to demonstrate that a material change in
circumstances had occurred since the entry of the May 2023 custody-
modification judgment that would warrant a modification of the
children's custody.
The mother attempts to find similarities between the present case
and our decisions in R.D.F. v. R.J.F., 271 So. 3d 831 (Ala. Civ. App. 2018),
and Goetsch v. Goetsch, 990 So. 2d 403 (Ala. Civ. App. 2008). However,
those cases are distinguishable from the present case. In R.D.F., the
record contained evidence indicating that the father's conduct had caused
emotional damage to the children in that case. Similarly, in Goetsch
there was evidence to indicate that the children in that case had been
subjected to emotional abuse in the custody of the custodial parent. In
contrast, the record in the present case contains no indication that the
children had been emotionally or physically harmed by the father's work
schedule, the paternal grandmother's care of the children during the
father's working hours, or the communication issues between the
parents.
The mother further asserts that the record presents an
"amalgamation" of issues that, when taken together, meet the Ex parte
27 CL-2024-0897
McLendon standard. We emphasize that the majority of the issues relied
on by the trial court in the August 2024 judgment concerned issues that
were presented in the April 2023 custody-modification trial and had
persisted since before the entry of the May 2023 custody-modification
judgment. The mother presented no evidence of any facts that were
unknown to the trial court before the 2024 modification trial that would
indicate that a material change of circumstances had occurred, see
K.E.W., 990 So. 2d at 380; instead, the record clearly discloses that the
mother relied on ongoing issues that the trial court was aware of during
the April 2023 custody-modification trial and that existed both before and
at the time of the entry of the May 2023 custody-modification judgment.
The children's declining grades, which had improved since the father had
made a dedicated effort to work with the children on their education, was
the only new or previously "unknown" fact presented at trial. Thus, the
record does not contain an "amalgamation" of issues sufficient to
establish a material change in circumstances.
"[W]e are compelled to reiterate that, in matters of child custody,
frequent disruptions are discouraged." Vick v. Vick, 688 So. 2d 852, 856
(Ala. Civ. App. 1997). The modification petition at issue in this case was
28 CL-2024-0897
filed approximately four months after the entry of the May 2023 custody-
modification judgment and nine days after the denial of the mother's
postjudgment motion directed to that judgment. The modification
petition was largely based on many of the issues presented in the April
2023 custody-modification trial and reiterated the grounds recited in the
mother's postjudgment motion. Because the bases of the mother's
custody-modification petition were largely repetitive of concerns raised
and litigated in the April 2023 custody-modification trial, indicating that
those concerns were ongoing issues between the parties and not new
changes in the circumstances that had materially affected the children,
those concerns could not serve as a basis for a modification of custody
under Ex parte McLendon. 19 The changes in the children's grades that
had occurred since the entry of the May 2023 custody-modification
19We note that the "recommendation" made by Logan-Russell largely relied on what she asserted were the father's ongoing coparenting issues and that her statement that the trial court should "give [the mother] a shot" at having sole physical custody of the children "to see if that fixes it" does not comport with the requirement in Ex parte McLendon that a material change in circumstances be established before a trial court may modify a previous custody judgment.
29 CL-2024-0897
judgment were similarly not material changes that would justify a
modification in the children's custody.
The record does not reflect that the mother established that a
material change in circumstances had occurred since the entry of the May
2023 custody-modification judgment. See Ex parte D.B., 255 So. 3d 755
(Ala. 2017). Because nearly all the facts presented to the trial court
predated the entry of the May 2023 custody-modification judgment, the
trial court improperly applied the law to the facts presented to it. See
Brooks, 991 So. 2d at 300. Accordingly, we reverse the trial court's
August 2024 judgment and remand the case for the entry of a judgment
denying the mother's custody-modification petition.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Moore, P.J., and Hanson, Fridy, and Bowden, JJ., concur.