E.M.C. v. K.C.Y.

735 So. 2d 1225
CourtCourt of Civil Appeals of Alabama
DecidedMay 7, 1999
Docket2971395
StatusPublished
Cited by30 cases

This text of 735 So. 2d 1225 (E.M.C. v. K.C.Y.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
E.M.C. v. K.C.Y., 735 So. 2d 1225 (Ala. Ct. App. 1999).

Opinion

PER CURIAM.

This is a custody-modification case involving domestic violence and family violence committed by the custodial parent. The trial court divorced the parties on October 10, 1991. Pursuant to an agreement of the parties incorporated into the final judgment of divorce, the court awarded the parties joint custody of their minor son, with the father having primary physical custody and the mother having liberal visitation.

Subsequently, the mother moved to modify the divorce judgment. After a hearing, the court, on April 20, 1995, ordered the mother to pay child support and continued the joint-custody arrangement. On December 23, 1997, the mother moved the court for an emergency order granting her temporary custody of the child, who at that time was nine years old, and requesting full custody. Along with her motion, the mother submitted transcripts of taped telephone conversations between the mother and the father’s current wife in which the wife said the father had been both verbally and physically abusive toward her and the child; that the father had displayed a history of violent outbursts; that the father had been arrested for domestic violence; and that she did not want the child to remain in her home, because, she said, the child had lied and had caused marital problems between her and the father. The court awarded the mother temporary custody and allowed for an independent evaluation of the child regarding the abuse allegations.

Following an ore tenus proceeding, the court, on August 11, 1998, entered a detailed order, stating:

“1. This Court’s October 10, 1991, divorce decree awards joint custody of the parties’ minor son ... to both [the mother] and [the father]. Primary placement of the child was awarded to the father and secondary placement and extended visitation was granted to the mother. [B.C.] was the only child born of the parties’ marriage.
“2. Since the divorce decree the father moved to New Jersey with the child and the mother continued residing in Calhoun County, Alabama. This Court has, since the divorce, entered two modifications of the parties’ divorce decree concerning the child support, visitation schedules and other related matters; however, primary custody of the child has remained with the father.
“3. In December 1997, the mother petitioned this Court for full custody and placement of the child. Additionally, the mother presented to this Court an ex parte motion for immediate temporary custody of the child. With the motion, the mother presented evidence of taped telephone conversations between the mother and the father’s present wife ..., the child’s stepmother. This evidence revealed that the child was being severely abused, both mentally and physically, by the father during frequent and periodic fits of rage and temper tantrums.... This evidence further revealed that the child’s stepmother dis[1227]*1227liked and resented the child and his mere presence in her home. These taped telephone conversations also revealed that the father has a propensity for violence not only toward the child, but the stepmother as well, and that irreparable harm would come to the child if he remained in that environment. Temporary custody of the child was thus granted to the mother pending the August 6,1998, hearing.
“4. At trial, transcripts of the taped telephone conversations between the mother and stepmother were introduced and admitted into evidence.
“5. The father testified and admitted to hitting the child with his closed fists from five to ten times during the last year the child was with the father [1997]. The father also admitted to a fit of ‘road rage’ where he inflicted damage to a woman’s vehicle with his fist after her vehicle had collided with his vehicle. He also admitted to being arrested for domestic violence upon his present wife even though she later ‘had the charges dropped.’ He further admitted to knocking a hole in a wall in his home and having loud verbal confrontations with his landlord about various matters concerning his residence. Moreover, when this court merely questioned the father about his resentment of the mother and his present wife having telephone communications, the father became visibly upset. He began yelling at this Court, pounding a box of tissues on the bench and then pounding on the bench with his fist. The father then turned and addressed the mother’s table, shaking his finger and screaming as loud as his voice would allow accusing the mother and her attorneys of destroying his life. While standing in the witness box, he then picked up the witness microphone with its pedestal attached and drew back his arm as if he would throw [it] at the mother. Upon entry of security [into] the courtroom, order was restored.
“[6.] In addition to the father’s said testimony and exhibition, the father called his present wife ... as a witness. She admitted as true some of the incidents she described to the mother in-her telephone conversations, and denied some even though she admitted that she had said those things. Notwithstanding, [she] was visibly shaken. She appeared to be afraid as she testified and this Court can well understand her emotions and fears.
“[7.] Pursuant to the father’s request, an independent evaluation by a licensed counselor was made of the child prior to the hearing. The counselor’s written report was offered by the mother and admitted into evidence. The report confirmed the inappropriate behavior by the father that this Court has observed firsthand.
“[8.] This Court is now clearly convinced that the father suffers from severe emotional problems and total lack of self-control. Therefore, the continued placement of the child with the father can and will result in irreparable physical and emotional harm to the child. This court also finds that the child’s best interests will be served by placing his custody with the mother. The benefits realized by the child with such custody transfer far outweigh any disruptive effect of moving or uprooting the child from the father’s placement.
“[9.] For this Court to consider visitation, the father will have to demonstrate to this Court that he has undergone intense counseling and therapy for anger management and his emotional problems. If the father elects to undergo counseling, he should permit free input from the mother, her representatives and the child’s counselor with the expert providing the father’s treatment. Otherwise, any report from the expert to this Court would be suspect, especially considering the progression of this case.”

[1228]*1228The father appeals, arguing that the court applied the “best interests of the child” standard, and thereby erred, and that the court abused its discretion regarding evidence presented by the mother that, he says, he refuted during the proceeding. We find the father’s arguments without merit.

When a noncustodial parent seeks a modification of a prior custody determination, the court must apply the evidentiary standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). The McLendon standard applies when the parents share joint legal custody and a previous judicial determination places primary physical custody of the child with one parent. Scacca v. Scacca, 694 So.2d 1 (Ala.Civ.App.1997); see also Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996) (holding that the McLendon

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Bluebook (online)
735 So. 2d 1225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emc-v-kcy-alacivapp-1999.