Rel: March 28, 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 OCTOBER TERM, 2024-2025 _________________________
CL-2023-0485 and CL-2023-0619 _________________________
Jessica Layne Chapman
v.
Frederick Kyle Chapman
Appeals from Chilton Circuit Court (DR-14-900112.01 and DR-14-900112.02)
FRIDY, Judge.
Jessica Layne Chapman ("the mother") appeals from two
judgments entered by the Chilton Circuit Court ("the trial court"); in the
first judgment, the trial court modified the custody of the two children of
the mother and Frederick Kyle Chapman ("the father"), and, in the CL-2023-0485 and CL-2023-0619
second judgment, the trial court found the mother in contempt and
suspended her visitation with the children. We affirm the judgments.
Procedural History
The parties are the natural and legal parents of two children, a son
born in 2010 and a daughter born in 2013 ("the children"). The parties
divorced in 2016. The judgment of divorce, as last amended, vested the
parties with joint legal custody of the children and awarded the mother
sole physical custody of the children subject to the visitation rights of the
father, which included the right to telephone contact each night with the
children. The divorce judgment further required the parties to notify one
another of any change in address.
On March 2, 2018, the father filed a petition requesting that the
trial court find the mother in contempt for violating the telephone-contact
and relocation provisions of the divorce judgment and award him sole
physical custody of the children, along with child support; that petition
was assigned case number DR-14-900112.01.
On May 1, 2019, after a bench trial, the trial court entered an order
that, among other things, awarded the father sole physical custody of the
children, required the father to keep the mother informed of any medical 2 CL-2023-0485 and CL-2023-0619
or educational issues involving the children, ordered the mother to pay
the father monthly child support in the amount of $382, ordered the
father to provide health insurance for the children, provided that the
parties were to equally split the costs of the children's health-care
expenses not covered by insurance, awarded the mother specified
visitation rights, and specified the manner in which the parties would
exchange the children's prescription medications for visits. Based upon
the mother's motion to reconsider, the trial court amended the order to,
among other things, apply the custody-modification standard established
in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), but, nevertheless,
sustained the change of custody. The trial court did not address the
contempt claims raised by the father in the order or the amended order.
See Decker v. Decker, 984 So. 2d 1216 (Ala. Civ. App. 2007) (holding that
the failure to adjudicate all pending contempt claims renders a judgment
nonfinal).
On June 25, 2020, the father filed a petition alleging that the
mother was in contempt of court for violating the terms of the May 1,
2019, order; that petition was assigned case number DR-14-900112.02.
While that case was pending, the trial court entered several pendente lite 3 CL-2023-0485 and CL-2023-0619
orders suspending or restricting the mother's visitation with the children.
On June 6, 2022, the trial court consolidated the two cases for trial
purposes. Although the trial court purported to set aside the
consolidation order, the trial court continued to enter orders in both cases
until May 30, 2023. On that date, the trial court entered a judgment in
case number DR-14-900112.01 that denied all unadjudicated claims. On
July 10, 2023, the mother timely filed a notice of appeal from the May 30,
2023, judgment, and this court docketed her appeal as appeal number
CL-2023-0485.
On July 24, 2023, the trial court entered a final judgment in case
number DR-14-900112.02. In that judgment, the trial court determined
that the mother was in contempt of court for failing to pay child support,
for failing to pay her portion of the noncovered health-care expenses for
the children, for keeping funds that had been received due to the COVID-
19 pandemic ("the COVID-19 stimulus funds") and were intended for the
benefit of the children, and for placing the children on "government
insurance." The trial court ordered the mother to pay the father $11,500
in attorney's fees and to pay the father the entire amount of the COVID-
19 stimulus funds that she had received on behalf of the children. 4 CL-2023-0485 and CL-2023-0619
Additionally, the trial court modified the visitation provisions of the May
1, 2019, order that had been entered in case number DR-14-900112.01 as
follows:
"[The m]other's visitation as stated in the Order of Modification dated May 1, 2019[,] is modified and limited to visits, when they can be scheduled, through The Wellness Group, at the expense of the mother, until the mother is evaluated and it is recommended to this Court that the mother[']s supervision should be lifted, for the benefit of the children. Upon [the] mother[']s evaluation through The Wellness Group, and [when] it is reported to the Court that [it] is of no danger ... for the mother to have unsupervised visitation, then the visitation shall be re-evaluated by this Court."
On September 5, 2023, the mother timely filed a notice of appeal from of
the July 24, 2023, judgment, and this court docketed her appeal as appeal
number CL-2023-0619. On September 19, 2023, this court consolidated
appeal number CL-2023-0485 and appeal number CL-2023-0619.
Issues
In appeal number CL-2023-0485, the mother argues that the trial
court erred by applying the wrong custody-modification standard and by
modifying custody of the children without sufficient evidence. In appeal
number CL-2023-0619, the mother argues that the trial court erred by
modifying her visitation rights, by finding her in contempt of court for 5 CL-2023-0485 and CL-2023-0619
actions that did not violate a previous court order, by ordering her to pay
attorney's fees to the father, and by failing to order the father to pay her
attorney's fees.
Analysis
I. Appeal Number CL-2023-0485
When a judgment awards one party sole physical custody of a child,
that custody provision may be modified only according to the standard
set forth in Ex parte McLendon, supra, which requires the petitioner to
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.' " Marshall v. Marshall,
346 So. 3d 1008, 1018 (Ala. Civ. App. 2021) (quoting Kunkel v. Kunkel,
547 So. 2d 555, 560 (Ala. Civ. App. 1989)). In this case, the 2016 divorce
judgment awarded the mother sole physical custody of the children, so
the father had to meet the Ex parte McLendon standard to obtain a
change of custody.
In its May 1, 2019, order granting the father's custody-modification
petition, the trial court found that it was in the best interests of the 6 CL-2023-0485 and CL-2023-0619
children to modify the custody provisions of the divorce judgment. In her
motion to reconsider, the mother pointed out that the Ex parte McLendon
standard requires more than just a showing of best interests, which is
the standard to be applied when a court modifies a joint-physical-custody
arrangement. See Ex parte Couch, 521 So. 2d 987, 989 (Ala. 1988). The
trial court subsequently amended the order to provide, in pertinent part:
"1. The May 1, 2019[,] order is adopted in full.
"2. That the custody of the ... children is placed with the father, in that the benefit of the father having custody of the[] children over the mother wi[ll] greatly benefit them and any disruptive effect of the change of the residence is outweighed by the benefit to the children. With the father, the stability of the household is improved. Their medication is metered more regular and there are fewer disturbances surrounding the family unit."
The mother argues that the trial court failed to apply the Ex parte
McLendon standard because it adopted the May 1, 2019, order "in full,"
which, she says, indicates that the trial court reapplied the best-
interests-of-the-child standard when deciding the custody dispute. The
mother has engaged in a strained interpretation of the order. From the
context of the proceedings, and the wording of the amended order, it is
apparent that the trial court adopted the May 1, 2019, order except to the
7 CL-2023-0485 and CL-2023-0619
extent that it amended the order to apply the Ex parte McLendon
standard as the mother requested. When any alleged ambiguity in a
judgment is dispelled by a reference to the record, " 'the judgment will be
upheld and carried into effect in the same manner as though its meaning
and intent were made clear and manifest by its own terms.' " Coffey v.
Cross, 185 Ala. 86, 91-92, 64 So. 95, 96 (1913) (quoting 1 Black on
Judgments § 123).
The mother also argues that the trial court failed to expressly find
in the amended order that there had been a material change of
circumstances since the entry of the divorce judgment, which is a
component of the Ex parte McLendon standard. "It is ... well established
that in the absence of specific findings of fact, appellate courts will
assume that the trial court made those findings necessary to support its
judgment, unless such findings would be clearly erroneous." Ex parte
Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996). Because that implied
finding is not clearly erroneous, as we will explain, the trial court did not
commit reversible error by failing to expressly find that a material
change of circumstances had occurred.
8 CL-2023-0485 and CL-2023-0619
In the context of child custody, a material change of circumstances
is a change in the circumstances of the parties since the entry of the last
custody judgment " 'such as to affect the welfare and best interest of the
child or children involved.' " Watters v. Watters, 918 So. 2d 913, 916 (Ala.
Civ. App. 2005) (quoting Ponder v. Ponder, 50 Ala. App. 27, 30, 276 So.
2d 613, 615 (Civ. 1973)). In her brief to this court, the mother claims that,
in the 2016 divorce proceedings, the trial court considered the same
circumstances that led the father to file his custody-modification petition
in 2018. To prove her point, the mother attaches to her appellate brief
documents from the record of the 2016 divorce proceedings, some of which
were not made part of the record in these appeals; however, this court
cannot consider attachments to appellate briefs that are not contained in
the appellate record. Jackson v. Davis, 153 So. 3d 820, 829 (Ala. Civ. App.
2014).
During the 2019 trial of the custody-modification petition, the
father's attorney indicated that he would question the mother only
regarding events occurring after May 2, 2016, the date of the divorce
judgment. The record shows that the trial court conducted postjudgment
proceedings in the divorce case after May 2, 2016, that led to an amended 9 CL-2023-0485 and CL-2023-0619
divorce judgment being entered on July 18, 2016. However, during the
postjudgment hearing, the mother did not object to the introduction of
evidence relating to events occurring between May 2, 2016, and July 18,
2016. The mother cannot now argue on appeal that the trial court should
have limited its inquiry to events occurring after July 18, 2016. See
Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992) ("[An
appellate court] cannot consider arguments raised for the first time on
appeal; rather, our review is restricted to the evidence and arguments
considered by the trial court.").
The trial court heard evidence indicating that, between May 2,
2016, and March 8, 2019, the mother had moved with the children four
times and had temporarily stayed with her mother on one occasion and
with a friend on another occasion. During that period, the mother also
allowed two different men to stay overnight with her when the children
were present, which the amended divorce judgment prohibited. Although
the father was to have telephone contact with the children between 7:00
p.m. and 8:00 p.m. each night when they were with the mother, the
mother only rarely would answer his calls. By May 1, 2019, the mother
was involved in a relationship with a third man. The mother appeared to 10 CL-2023-0485 and CL-2023-0619
have an active social life, and she had allowed a friend, who had lost
custody of all seven of her children and who was subjected to random
drug testing by the Department of Human Resources, to babysit the
children on one occasion. The mother earned approximately $1,200 per
month in gross income from cleaning houses, which was largely
consumed by ordinary household expenses. Meanwhile, the father had
remarried in January 2018 to a medical assistant, and he had moved into
her three-bedroom house; together, they earned approximately $5,600 a
month.
The children were both diagnosed with behavioral problems for
which they were prescribed medication. The mother did not communicate
with the father regarding the precise dosage of the medications that were
to be administered to the children during visitations. While in the
mother's care, the younger child did not perform well in kindergarten.
After the father obtained pendente lite custody of the children, the
mother did not turn over the children's medications, and she would not
respond to telephone calls or text messages about the medications. The
father would have to ask the school nurse to give the children the
medications that they needed in the mornings. The father's wife soon 11 CL-2023-0485 and CL-2023-0619
discovered at a doctor's visit that the older child had been prescribed an
evening dose of medication about which the mother had not informed the
father. Through the intervention of the father's wife, the older child's
added evening dosage was eventually eliminated by the child's doctor.
The prescription for the younger child was also changed in February
2019. At first, the behavior of the younger child worsened due to the
change, but, by the end of March 2019, the younger child was consistently
behaving well and was receiving positive reports from her kindergarten
teacher. Nevertheless, the younger child's kindergarten teacher, who
testified at trial, believed that the younger child should repeat
kindergarten primarily due to her poor progress before February 2019.
When the father informed the mother of that development, the mother
did not ask to meet with the teacher or to discuss the matter with the
father.
From that evidence, the trial court could have reasonably
determined that there had been a material change of circumstances.
Furthermore, the trial court reasonably could have also determined that
the positive good from transferring custody of the children to the father
would outweigh any disruptive effects to the children. The mother argues 12 CL-2023-0485 and CL-2023-0619
that the trial court modified custody solely to resolve visitation disputes
between the parties and based solely on evidence indicating that he had
remarried and had improved his personal circumstances, none of which,
she maintains, is sufficient to meet the Ex parte McLendon standard. See
Cochran v. Cochran, 5 So. 3d 1220 (2008); Watters v. Watters, 918 So. 2d
913 (Ala. Civ. App. 2005); Evans v. Evans, 978 So. 2d 42 (Ala. Civ. App.
2007). However, as the trial court specifically found, the children would
tangibly benefit from residing in the father's home where "the stability of
the household is improved" and the children's "medication is metered
more regular[ly] and there are fewer disturbances surrounding the
family unit." The evidence showed that, only a few months after the
pendente lite change of custody, the children's behavior had already
improved because their medications were being regularly controlled, and
the trial court could have been convinced that it was in their best
interests to more permanently modify custody to ensure their continued
progress, with the father acting as their sole physical custodian.
The mother contested the evidence that the father presented and
directly disputed most of his contentions, requiring the trial court to
assess the credibility of the parties and their witnesses and to weigh the 13 CL-2023-0485 and CL-2023-0619
conflicting evidence. On appeal of a judgment entered in a child-custody
case in which a trial court heard ore tenus evidence, the judgment is
accorded a presumption of correctness, and we will not reverse the
judgment unless the evidence is so lacking that we conclude that the trial
court was plainly and palpably wrong or committed an abuse of
discretion. Ex parte Bryowsky, 676 So. 2d at 1324 (Ala. 1996). Applying
this standard, we do not find any grounds for reversing the judgment
entered in case number DR-14-900112.01, and we affirm that judgment.
II. Appeal Number CL-2023-0619
A. Supervised Visitation
Although there were some allegations that the mother had
physically harmed the father and the children, in the May 1, 2019, order
entered in case number DR-14-900112.01, the trial court ordered that the
mother was to have unsupervised visitation with the children. On
September 14, 2021, based on an allegation that the mother had
physically abused the older child during two visits in August and
September 2021, the trial court suspended the mother's unsupervised
visitation and ordered that further visitations were to be supervised and
to take place biweekly. On January 3, 2022, the trial court modified the 14 CL-2023-0485 and CL-2023-0619
September 14, 2021, order to reduce the mother's supervised visitation to
once a month while the older child attended counseling at The Wellness
Center to work toward increased visitation.
On March 18, 2022, the trial court granted the mother's motion to
allow the children's guardian ad litem to establish the visitation
restrictions and schedule for the mother. The guardian ad litem
apparently approved of weekly visitation to be supervised by employees
of The Wellness Center. After a supervised visit on April 19, 2022, the
father reported that the younger child had accused the mother of
improperly touching her. The trial court suspended visitation between
the mother and the children pending a forensic interview of the younger
child. After an investigation, no criminal charges were made against the
mother, and the Chilton County Department of Human Resources found
the allegation of sexual abuse to be "not indicated." After a hearing, the
trial court entered an order on July 18, 2022, restoring the mother's
supervised visitation with the children.
On November 9, 2022, the mother filed a verified motion to request
that her visitations be unsupervised. On February 26, 2023, the mother
filed a request for a hearing on her motion. Ultimately, the trial court 15 CL-2023-0485 and CL-2023-0619
determined that it would hear the visitation issue during the trial that
was scheduled to take place on May 30, 2023. After the May 30, 2023,
trial, the trial court entered the final judgment in case number DR-14-
900112.02 on July 24, 2023. In that judgment, the trial court continued
the mother's supervised visitation, subject to reconsideration following
an evaluation by employees of The Wellness Center showing that the
mother was not a danger to the children.
The mother contends that the trial court lacked subject-matter
jurisdiction to modify her visitation rights because the father failed to
pay the appropriate filing fee. See Farmer v. Farmer, 842 So. 2d 679, 680
(Ala. Civ. App. 2002) (holding that the failure to pay the docket fee as
required by Ala. Code 1975, § 12-19-70, is a jurisdictional defect). The
mother admits that the father paid a filing fee when he filed his contempt
petition on June 25, 2020, but she argues that the father was required to
pay another filing fee to invoke the jurisdiction of the trial court to modify
her visitation. The record shows that the father did not include in his
June 25, 2020, petition a claim requesting that the trial court suspend
the mother's visitation. On September 13, 2021, the father filed a motion
to suspend the mother's visitation. Treating that motion as an 16 CL-2023-0485 and CL-2023-0619
amendment to the petition, see Pontius v. State Farm Mut. Auto. Ins.
Co., 915 So. 2d 557, 562-63 (Ala. 2005) ("[An appellate court] will look at
the substance of a motion, rather than its title, to determine how that
motion is to be considered under the Alabama Rules of Civil Procedure."),
the father was not required to file an additional filing fee to invoke the
jurisdiction of the trial court over his visitation-modification claim.
"Under the Alabama Rules of Civil Procedure, the filing of an amended
complaint is not the institution of a new action separate and apart from
the institution of the initial complaint, requiring the payment of a new
filing fee ...." Ex parte Jefferson Smurfit Corp. (U.S.), 951 So. 2d 659, 665
(Ala. 2006).
The mother next contends that the trial court erred in entering the
September 14, 2021, and April 28, 2022, pendente lite visitation orders.
We cannot consider that argument, however, because the pendente lite
orders were eventually supplanted by the final judgment entered on July
24, 2023, awarding the mother supervised visitation. Thus, the propriety
of the September 14, 2021, and the April 28, 2022, pendente lite orders
is moot. See F.M. v. B.S., 170 So. 3d 663, 668 (Ala. Civ. App. 2014).
17 CL-2023-0485 and CL-2023-0619
The mother next contends that the trial court erred in ordering that
her visitation with the children be supervised. A trial court may order
supervised visitation if it receives sufficient evidence indicating that the
restriction is necessary to protect the children from conduct of the
noncustodial parent that endangers the children's health, safety, or well-
being. See Ex parte Thompson, 51 So. 3d 265, 272 (Ala. 2010). When a
trial court does not make specific findings of fact regarding the reasons
it imposed a restriction on custody or visitation, the noncustodial parent
must file a postjudgment motion to challenge the sufficiency of the
evidence. See Batchelor v. Batchelor, 188 So. 3d 704, 707 (Ala. Civ. App.
2015). In this case, the mother did not file a postjudgment motion, and
she thereby waived any challenge to the supervised-visitation restriction
based on the insufficiency of the evidence. See Pratt v. Pratt, 56 So. 3d
638, 645 (Ala. Civ. App. 2010).
For a similar reason, this court cannot consider the mother's
arguments that the trial court improperly delegated its judicial authority
over visitation to employees of The Wellness Center and that the
visitation provision is not sufficiently detailed. The mother did not raise
18 CL-2023-0485 and CL-2023-0619
those arguments to the trial court, and we cannot consider them for the
first time on appeal. See Pratt, supra.
B. Contempt
In the July 24, 2023, judgment, the trial court found the mother in
contempt for failing to pay child support and for "failing to pay medicals
and non-covered medical expenses, [for] keeping [the COVID-19 stimulus
funds] while [the] children [were] in [the] father[']s custody, [for] placing
[the] children on government insurance while [the] father ha[d] [the]
children covered on BC/BS...." 1 The mother contends that she could not
be held in contempt for those actions or omissions because the trial court
had not entered any order addressing those subjects. Under Rule 70A,
Ala. R. Civ. P., a party can be held in civil contempt only for willfully
violating a lawful order of reasonable specificity. See Nave v. Nave, 942
So. 2d 372, 377 (Ala. Civ. App. 2005). She also contends that the trial
court erred in ordering her to pay the father the COVID-19 stimulus
1The mother asserts that the trial court also found her in contempt
for claiming the children as dependents on her income-tax returns and in applying for food stamps in the name of the children, but, on a close reading of the judgment, we conclude that the trial court did not base its contempt finding on those grounds, although it did prohibit her from engaging in such conduct in the future. 19 CL-2023-0485 and CL-2023-0619
funds that she had retained and in requiring her to pay attorney's fees as
a sanction for her contempt. Once again, however, the mother did not
raise any of those arguments to the trial court, and we cannot consider
them for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.
2d at 410.
C. Attorney's Fees
Finally, the mother requests attorney's fees for the allegedly
oppressive conduct committed by the father during the underlying
litigation, specifically his alleged false allegation of sexual abuse. The
trial court denied the mother's claim for attorney's fees in the proceedings
below, and the mother makes no legal argument as to why the trial court
erred by refusing to order the father to pay her attorney's fees on account
of his alleged misconduct. See Rule 28, Ala. R. App. P. The mother does
assert that a trial court can consider the superior financial condition of a
party when assessing attorney's fees in a domestic-relations case, but the
assertion of a general proposition of law is not sufficient to command
reversal of a judgment. Ezell v. Ezell, 394 So. 3d 608, 612 (Ala. Civ. App.
2024).
20 CL-2023-0485 and CL-2023-0619
Conclusion
For the foregoing reasons, we affirm the judgment entered in case
number DR-14-900112.01; we also affirm the judgment entered in case
number DR-14-900112.02.
CL-2023-0485 -- AFFIRMED.
CL-2023-0619 -- AFFIRMED.
Moore, P.J., and Edwards and Hanson, JJ., concur.
Lewis, J., recuses himself.