Rel: September 6, 2024
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, 2024 _________________________
CL-2024-0074 _________________________
Kendrum Demell Robinson
v.
Katina Lynette Robinson
Appeal from Shelby Circuit Court (DR-22-900471)
LEWIS, Judge.
Kendrum Demell Robinson ("the father") appeals from a judgment
entered by the Shelby Circuit Court ("the trial court") that, among other
things, divorced him from Katina Lynette Robinson ("the mother");
awarded custody of K.J., the parties' son ("the son"), to the father and CL-2024-0074
custody of K.D.R., the parties' daughter ("the daughter"), to the mother;
and established visitation for both parents. We affirm the judgment of
the trial court.
Evidence and Procedural History
The parties married on June 11, 2011. There were two children
born of the marriage, the son and the daughter, who were 13 years old
and 7 years old, respectively, at the time of the trial discussed infra,
which was held on July 26, 2023. According to the mother, during the
marriage, she "did everything" with respect to the parties' children; she
"enrolled them in school," "went to PTO meetings," and "went to
practices." The mother testified that, because the father typically worked
a night-shift job, she was the "involved parent." The mother further
testified that she was the disciplinarian while the father was the
children's friend; she also testified that the father had used profanity
around the son.
According to the father, before he separated from the mother, he
attended the children's sporting events and dances. The father testified
that, during his days off from work in the summer of 2022, he would play
with the children, "attend to them," do "TikTok dances," "[p]lay games"
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with the son, "go outside," and generally "[d]o a lot of stuff" while the
mother was at work. The father testified that, although both he and the
mother scheduled the children's medical appointments, he took the
children to their appointments.
According to the son, in 2022, prior to the parties' separation, the
mother, the father, the son, and the daughter all lived together in Calera,
and both children attended school there. The son testified that he was in
the "gifted-education program" at his school.
The mother testified that the parties separated in August 2022
when she filed a petition for a Protection From Abuse ("PFA") order
against the father. The mother explained that she filed the petition
"because he was manipulating the kids against me. [H]e started carrying weapons around the house while I was taking pictures. He would take my kids away from me to other people's houses where I didn't know where they were. He would hide food and different stuff. Sometime[s] he would put me out the house. I had filed a police report where he had slammed my hand up in the door. It was just a lot of mental and physical abuse going on."
The father specifically denied each of those allegations. He also testified
that, although he owned a gun in July 2022, he kept the gun in his
vehicle. He further testified that he had never shown the gun to the
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children and had never brandished the gun or used it to threaten the
mother or the children.
On August 4, 2022, based on the mother's petition for a PFA order,
the trial court entered an ex parte order granting the mother temporary
custody of the children and enjoining the father from contacting the
mother or the children. According to the son, at that time, the father
moved out of the parties' marital home.
On August 11, 2022, the father filed in the trial court a complaint
seeking a divorce from the mother. The trial court consolidated the
mother's pending PFA action with the divorce action. The mother stated
that she eventually agreed to dismiss the PFA action because she thought
that the father was no longer a threat after he moved out of the marital
home.
The father testified that he did not see the children during the
month of August 2022 after he moved out of the marital home. On
August 25, 2022, the father filed a motion for pendente lite custody of the
children and for pendente lite use and occupancy of the marital home.
On that same day, the mother answered the father's divorce complaint;
she also filed a counterclaim that asserted abuse by the father as an
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alternative ground for divorce and requested, among other things,
"physical and legal custody" of the children1 or, in the alternative, joint
legal custody and "primary physical custod[y]."2
On September 12, 2022, the mother responded to the father's
motion for pendente lite relief, arguing that it was in the children's best
interests to remain in her custody, as they had been since the entry of
the PFA order, because the father worked a night-shift job five to six
nights per week. The mother also requested child support and exclusive
use and possession of the marital home. The father testified that he had
not seen the children during the month of September 2022.
On September 13, 2022, the trial court held a hearing at which it
considered the father's motion for pendente lite relief. At the hearing,
the parties entered into a pendente lite agreement ("the September 2022
1We interpret the request for "physical and legal custody" to be a
request for sole physical custody and sole legal custody. Ala. Code 1975, § 30-3-151(4) and (5).
2We interpret the request for "primary physical custody" to be a
request for sole physical custody. Ala. Code 1975, § 30-3-151(5).
5 CL-2024-0074
pendente lite agreement"). 3 The September 2022 pendente lite
agreement stated, in pertinent part:
"The wife shall continue to have exclusive use and possession of the marital residence until the [father's] work schedule changes to day shifts, at which point the parties shall rotate week on/week off, Sunday to Sunday. Said rotation shall begin on October 2nd at the earliest and shall be contingent upon the [father] providing proof of said change to day shifts."
On September 26, 2022, the mother filed an amended answer and
amended counterclaim, which differed from her original counterclaim in
that it specifically requested "primary physical and legal custody" of the
children4 and ownership and possession of the marital home and other
items of property. On September 27, 2022, the mother filed a motion for
a pendente lite order awarding her custody of the children and exclusive
possession of the marital home, awarding the father visitation, and
requiring the father to pay child support.
3As set forth, infra, the trial court later entered an order that adopted and incorporated the September 2022 pendente lite agreement. 4We interpret the request for "primary physical and legal custody"
to be a request for sole physical custody and sole legal custody. Ala. Code 1975, § 30-3-151(4) and (5).
6 CL-2024-0074
The mother testified that, on September 28, 2022, she moved with
the children from Calera to the Irondale/Trussville area, approximately
45 minutes away by car, to be closer to her job. The son testified that,
after the move, he and the daughter changed schools, which required him
to leave the gifted-education program. According to the mother, in
October 2022, the daughter began attending an after-school program for
girls at her school in Trussville.
The father introduced copies of messages that he testified he sent
to the mother via the "My Family Wizard" app in October 2022, January
2023, and April 2023, providing his updated work schedules in
accordance with the September 2022 pendente lite agreement. The
father testified that, despite his compliance, he did not see the children
in August, September, October, or November 2022.
Although the mother initially testified that she could not recall
whether the father had seen the children in September, she later testified
that the father had seen the children in August, September, October, and
November 2022. The mother testified that she had never withheld the
children from the father and that the children communicated with the
father during the fall of 2022 using their cellular telephones.
7 CL-2024-0074
According to the mother, there was friction between the parties
when, on October 2, 2022, the father wanted to begin alternating
possession of the marital home every week, as described in the September
2022 pendente lite agreement. According to the mother, the father still
wanted to have custody of the children only on his days off from work,
rather than every other week as stated in the September 2022 pendente
lite agreement. The mother testified that the father desired to alternate
possession of the marital home because he had nowhere else to live. The
father introduced a message sent by him to the mother on October 3,
2022, explaining that, although it was his week to stay in the marital
home, he and the children were staying elsewhere because there were no
utilities or furniture in the marital home. The father also introduced a
message sent to him by the mother stating that, because she had moved
out of the marital home, he was responsible for reconnecting the utilities.
On October 4, 2022, the father responded to the mother's pendente
lite motion that had been filed on September 27, 2022, and argued that
the September 2022 pendente lite agreement had already addressed each
of the mother's requests for relief. He also filed a motion for the trial
court to enter a pendente lite order reflecting the September 2022
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pendente lite agreement. The trial court then entered an order adopting
the September 2022 pendente lite agreement. Later that day, the mother
filed a motion for the trial court to reconsider that order; however, that
motion was denied.
On October 20, 2022, the father filed a motion for the trial court to
hold the mother in contempt based on her alleged violation of the court's
October 4, 2022, pendente lite order. The father averred that the mother
"intentionally denied" him the custodial time to which he was entitled;
"abandoned the marital residence and moved, with the minor children,
to Trussville"; enrolled the children in a new school without notifying
him; provided the school with a copy of the ex parte PFA order that had
been rescinded, which resulted in him being disallowed from
communicating with the children during school hours; and refused to
provide the father with her current address. The father requested an
award of pendente lite custody of the children.
In response, on October 25, 2022, the mother averred that the
father failed to provide his work schedule; stated that he could not comply
with the September 2022 pendente lite agreement because of his work
schedule; and violated the September 2022 pendente lite agreement by
9 CL-2024-0074
coming to her house uninvited. The mother stated that the father had
her new address. She admitted that she unintentionally provided the ex
parte PFA order to the school but stated that she informed the school that
the father could communicate with the children. She also stated that she
had not denied the father visitation.
The father's motion was heard on November 8, 2022. At the
hearing, the parties produced another pendente lite agreement ("the
November 2022 pendente lite agreement") setting out a visitation
schedule for November 8, 2022, through January 24, 2023, with the
handwritten title "Father's PLR visitation schedule." Although the
November 2022 pendente lite agreement did not state that the daughter
would reside with the mother and that the son would reside with the
father, the father's subsequent motions stated that these were additional
terms of the agreement and that the agreement established visitation
"for the respective parents," not only for the father. The parties
requested that the trial court adopt the November 2022 pendente lite
agreement as an order of the court. On November 11, 2022, the trial
court entered an order adopting the November 2022 pendente lite
agreement.
10 CL-2024-0074
The son testified that, in the fall of 2022, the mother had "pulled a
gun" on him. The son provided no further details on that incident
because he stated that he had already testified about it at a pretrial
hearing. The mother denied that she had ever "pulled a gun" on the son.
The son also testified that the mother had punched him. The
mother denied punching the son. The son stated that, after the incident
in which he claims the mother punched him, he ran away from the
mother's home and telephoned the father. The son testified that,
thereafter, he moved in with the father and reentered the gifted-
education program at the school in Calera that he had previously
attended.
The mother testified that the son ran away because he was defiant
and did not want to follow her rules. She testified that she telephoned
the police and that the police retrieved the son. She also testified that
she asked the police to telephone the father to help deescalate the
situation. The mother admitted that, after the son ran away from home,
she informed the father that the son previously communicated that he
did not want to live with the mother.
11 CL-2024-0074
The father introduced bank statements from January 31, 2022,
through March 31, 2023, pertaining to three Wells Fargo accounts. The
mother admitted that one of the accounts was labeled: "Account number
… 3902 [the daughter's name], a minor, by Katina Holiday." Katina
Holiday is the mother's maiden name. Similarly, the mother admitted
that one of the accounts was labeled: "Account number … 5076 [the son's
name], a minor, by Katina Holiday." However, the mother denied that
the savings accounts belonged to the children, testifying, "[t]hose are not
my [children's] accounts. I just put their name[s] on [them]." According
to the mother, she had "placed [her] kids' name[s] on all [her] accounts."
However, the father also introduced bank statements from a Wells Fargo
account labeled "Account number … 5215 Katina Holiday."
The mother admitted that she requested that the bank name the
two accounts as savings accounts for the children, but she stated that she
had done so only to ensure that her children could access the accounts in
the event of her death and that she and the father had not discussed
placing the children's names on the accounts. The mother testified that
the money in the savings accounts was comprised of "insurance money,"
inheritance from her deceased parents' estates, and a settlement from an
12 CL-2024-0074
automobile-accident lawsuit in which she was involved; she stated that
the father had not deposited any money into those accounts.
The mother admitted that, between the end of July and the end of
October 2022, she removed approximately $22,000 from the account
ending in 5076, which was in the son's name. The statements admitted
into evidence also showed that, at the end of July 2022, the balance of the
bank account ending in 3902, which was in the daughter's name, was
$24,274.14, and that, at the end of October 2022, the balance of that
account was $1,174.33, which is a diminution of $23,099.81.
The mother testified that she donated $67,000 (comprised of the
$22,000 from the 5076 account in the son's name and $45,000 from the
5215 account, which was in her name only) "[i]n cash" to "Breast Cancer
Awareness" and two churches. There was no testimony given as to how
the $23,099.81 that was removed from the account ending in 3902, in the
daughter's name, was spent. The mother admitted that she expected the
children to attend college one day; she stated that she donated the money
despite that expectation because of her anxiety and depression. The
mother testified that, now, she takes medication to manage her
depression and anxiety.
13 CL-2024-0074
The father testified that the parties had agreed to put the two
savings accounts in the children's names under the mother's name rather
than his; however, he stated that his intention was for the children to
have the money in those accounts when they graduated. The father also
testified that he did not know that the mother had removed any money
from the accounts until he heard the mother's testimony at the trial.
On December 12, 2022, the father filed a motion to compel the
mother to comply with the November 2022 pendente lite agreement,
specifically averring that the mother failed to provide the son with his
personal property after he began living with the father. On May 10, 2023,
the father filed another motion for pendente lite relief, alleging again that
the mother failed to provide the son's personal property; alleging that the
mother had failed to cooperate in arranging visitation; and alleging that
the mother had left the daughter home alone on more than one occasion.
The father's motion was set to be heard at trial.
The father testified that, in May 2023, the daughter telephoned him
crying and stating that she was afraid because the mother had left her at
home alone. The father testified that that instance was not the first time
that he heard from the daughter that she had been left by the mother at
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home alone. He testified that, after receiving the daughter's call, he
telephoned the police and drove to the mother's house. The mother
testified that she left the house that day to pick up her laptop from work
in order to work from home for the rest of the day and that her neighbor
had been watching the daughter. The daughter indeed testified that
their neighbor had come to check on her while the mother was away from
the home.
The father testified that the day the daughter called him about
being home alone was a Friday and that he was scheduled to have the
daughter from that day through the following Tuesday; however, he
stated that his visitation with the daughter did not begin until that
Monday. The mother admitted that she had not allowed the father to
have that scheduled visitation with the daughter. She testified that the
daughter was afraid after the police came to the house and wanted to
stay with the mother. According to the mother, the police "made [the
father] leave," but he "returned three times after that." The mother
testified that she felt like the father was harassing her. The father
admitted that he had gone inside the mother's gated community using
the key code that day; however, he stated that he had not entered the
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mother's apartment, seen the mother in person that day, or threatened
the mother.
The daughter testified that, as a result of her telephoning the father
that day, the mother had taken away her cellular telephone. The
daughter testified, however, that she had still been able to message with
the father on her tablet. The mother, on the other hand, denied taking
the daughter's cellular telephone and stated that the telephone had been
lost. The mother denied having ever prevented the daughter from
communicating with the father.
The father testified that, during the week preceding the July 2023
trial, he had two days off from work and asked the mother for a visit with
the daughter. Although the mother testified that she had been allowing
the children to visit with the father on his days off from work, she
admitted that she did not facilitate that particular request and that she
did not give the father a reason for her denial of that visitation. The
mother testified that she had to visit her sister in the hospital. However,
the daughter testified that, although they planned to go to the hospital
to visit her aunt, she and the mother had not gone that week because the
aunt had not telephoned them.
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A trial was held on July 26, 2023. The son testified that he was
about to enter the eighth grade. He testified that, since the parents
separated, he lived primarily with the father, and that the daughter
stayed with the father when the father had time off from work. The son
stated that he plays multiple sports at his school and that he is happy in
his home.
The son testified that he wants to continue to live with the father
and wants to visit the mother "[m]aybe sometimes." He testified that he
is uncomfortable with the mother and needs time "to heal." The son also
testified that he would be okay with the mother attending his sports
games and the other activities in which he is involved. The mother
testified that, approximately one week before the trial, the son called her
and told her that he would love for her to call him more.
The son testified that he thinks counseling for him and the mother
could help and stated that he would be open to counseling. The mother
also testified that she would be willing to participate in counseling with
the son. The father testified that he, the children, and the mother
participated in counseling pursuant to the November 2022 pendente lite
agreement. The father testified that, at some point before the trial, the
17 CL-2024-0074
family counselor told him that the counseling had terminated, and the
family stopped attending; he stated that he did not know why the
counseling ended. He testified that he was willing to continue to
participate in counseling alongside the whole family.
The mother ultimately requested to be awarded joint custody of the
son, stating that she recognized "that a father can do more with his son
than [she] can." The mother testified that, at the time of the trial, she
had not seen the son "in nine to ten months." The mother testified that
she had not been given access to the son by the father. According to the
mother, the father stated in a deposition that he felt that he should not
have to force the son to establish a better bond with the mother. The
father testified that he had given the son the choice to talk to the mother,
telling him, "when [you're] ready, I will be there beside [you]."
The mother testified that the father told the daughter, "you need to
come stay with us [i.e., the father and the son] because if you don't come
stay with us, then you will never see [the son] again." The daughter
testified that she lives more often with the mother than with the father.
She testified that she has her own room at the mother's house and that
she likes staying with the mother. She further testified that she likes
18 CL-2024-0074
and wants to continue attending her school in Trussville. The daughter
also testified that she wants to continue attending her after-school
program regardless of whether she lives with the father or the mother.
The daughter stated that she visited "[a] little bit" with the father, but
that she did not know the last time that she visited with him. The
daughter also testified that, if she continues to live primarily with the
mother, she wants to visit with the father more.
According to the daughter, while she was at the father's house, she
spent time with the son. She testified that, sometimes, the father left her
and the son at home alone while the father was at work. The daughter
testified that she and the son get along and that he is a good big brother.
The mother testified that the daughter misses the son.
When asked with whom she would choose to live, if given the choice,
the daughter first testified that she wants to stay with the father but
then stated that she wants to spend equal amounts of time with both
parents. The daughter further testified that she had not told the mother
that she would like to live with the father because she is "kind of scared."
She testified that she is afraid of the mother because of the mother's
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actions toward the son. The daughter testified that she is not afraid of
the father.
The mother ultimately requested to be awarded "primary custody" 5
of the daughter and for visitation with the daughter to be awarded to the
father. The mother stated that she feels she is better suited to take care
of the daughter because they "share a special bond." The mother testified
that she has a good relationship with the daughter. She testified that
the daughter is generally obedient and that the daughter "had all As" in
school.
The mother explained that, in large part due to the father's work
schedule, which is from 6:00 a.m. to 6:00 p.m., requiring him to leave
home at 3:00 a.m., the mother is a better nurturer to the daughter than
the father. As an example, the mother testified about an incident in
which the daughter had returned to the mother from the father's house
not wearing underwear.
5We interpret the request for "primary custody" to be a request for
sole legal custody and sole physical custody. Ala. Code 1975, § 30-3- 151(4) and (5).
20 CL-2024-0074
The mother testified that the father had only been visiting with the
daughter on his days off of work, which comprised about seven days per
month. The mother stated that, despite the parties' agreement to
alternate with the children weekly, the father asked to have the children
only on the weekends. The mother testified that she is open to the father
having more visitation time and that she wants to alternate custody of
the children weekly during the summer months.
The mother requested that she be given the opportunity to take the
daughter when the father has to work, rather than having the son watch
the daughter. Additionally, the mother requested that the trial court
order the parties to accommodate the children's extracurricular
activities. According to the mother, the father deliberately caused the
daughter to miss "many field trips and activities" with her after-school
program.
The father testified that, on his days off from work, when he had
custody of the daughter, he asked the daughter whether she wanted to
attend the after-school program, and she said "no" and that she wanted
to spend the rest of the day with the father instead. The father also
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testified that he had no objection to the daughter attending the after-
school program when and if she wanted to do so.
The father ultimately requested to be awarded sole physical
custody of both children. He also stated that he desires the children to
have visitation with the mother every weekend or every other weekend
and that he is willing to transport the children to those visits. The father
also testified that he works from 6:00 a.m. to 5:20 p.m. or 5:30 p.m., which
requires him to leave home at 3:30 a.m. on workdays. The father testified
that his plan, if he were awarded sole physical custody of both children,
was to utilize a babysitter and an after-school program in Calera for the
daughter.
The mother testified that she works at a medical rehabilitation
facility in Birmingham. She testified that her work hours are 8:00 a.m.
until 5:00 p.m., Monday through Friday, and that her work does not
prevent her from picking up the daughter from the daughter's activities.
On September 3, 2023, the trial court entered a divorce judgment
that, among other things, awarded "custody" of the son to the father,
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awarded "custody" of the daughter to the mother,6 awarded the mother
"visitation/physical custody periods" with the son, and awarded the
father "visitation/physical custody periods" with the daughter. The court
also ordered the parties to "cooperate with each other to effect
visitation/physical custody periods with the minor children" but provided
visitation schedules for use by the parties if they could not agree upon a
schedule. The trial court's schedules would require that the children
spend every weekend, every holiday, and all of summer together,
alternating living at each parents' home. The judgment also mandated
that the family participate in family counseling. 7
On September 27, 2023, the father filed a timely motion to alter,
amend, or vacate the judgment, challenging the sufficiency of the
evidence to support the trial court's custody awards. That motion was
denied by operation of law 90 days later, on December 26, 2023, pursuant
6We interpret the awards of "custody" to be awards of sole legal
custody and sole physical custody. Ala. Code 1975, § 30-3-151(4) and (5). 7The judgment also stated that, "[t]o the extent not[] herein granted, all remaining requests for relief [we]re DENIED." (Capitalization in original.)
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to Rule 59.1, Ala. R. Civ. P. On February 1, 2024, the father filed a timely
notice of appeal.
Standard of Review
"When a [trial] court makes a custody determination based on ore tenus evidence, its findings in support of that determination are accorded a presumption of correctness on appeal. Ex parte Bryowsky, 676 So. 2d 1322, 1324-26 (Ala. 1996). An appellate court will not reverse the [trial] court's custody judgment '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. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.' Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993)."
J.L.W. v. C.J.P., [Ms. CL-2023-0561, May 17, 2024] ___ So. 3d ___, ___
(Ala. Civ. App. 2024). "[W]hen a [trial] court has not made specific factual
findings in support of its judgment, we must presume that the [trial]
court made those findings necessary to support its judgment, provided
that those findings are supported by the evidence." K.C. v. Jefferson
Cnty. Dep't of Hum. Res., 54 So. 3d 407, 413 (Ala. Civ. App. 2010).
Discussion
On appeal, the father argues that sole physical custody of both
children should have been awarded to him and that the mother should
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have received, if anything, mere visitation with the children.8 The father
argues that the trial court's custody award was erroneous for three
reasons: (1) because it separated the children, (2) because the daughter
stated that she wanted to live with the father, and (3) because the mother
had abused the son.9 We will address each argument in turn.
8The father also argues that the property division in the divorce
judgment was erroneous; however, his brief fails to cite legal authority in support of that argument, and it is not the responsibility of this court to perform a litigant's legal research. Legal Systems, Inc. v. Hoover, 619 So. 2d 930, 932 (Ala Civ. App. 1993); Lockett v. A.L. Sandlin Lumber Co., 588 So. 2d 889, 890 (Ala. Civ. App. 1991). Rule 28(a)(10), Ala. R. App. P., requires an appellant to set forth "[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." Therefore, "[t]his court will address only those issues properly presented and for which supporting authority has been cited." D.M. v. Jefferson Cnty. Dep't of Hum. Res., 232 So. 3d 237, 243 (Ala. Civ. App. 2017) (quoting Asam v. Devereaux, 686 So. 2d 1222, 1224 (Ala. Civ. App. 1996)). Based on the foregoing, we will not address the father's argument regarding the property award in the divorce judgment. 9We note that the father fails to argue that, under Ala. Code 1975,
§ 30-3-131, there should have been a presumption against awarding the mother custody based on the evidence of domestic abuse. Therefore, we need not address that presumption in this opinion. See, e.g., Griggs v. Griggs, 304 So. 3d 741, 745 (Ala. Civ. App. 2020) ("We note, however, that the wife did not argue the applicability of Ala. Code 1975, § 30-3-131, until she filed her postjudgment motion. Therefore, the trial court was not required to consider that argument."). Moreover, even if we were to consider that presumption, the mother denied having abused the son,
25 CL-2024-0074
The father's brief is correct that "Alabama law generally
encourages trial courts not to separate siblings." E.F.B. v. L.S.T., 157 So.
3d 917, 925 (Ala. Civ. App. 2014). However, Alabama law no longer
requires that a custody judgment separating siblings be supported by a
"compelling reason" for doing so. See A.B. v. J.B., 40 So. 3d 723, 729 (Ala.
Civ. App. 2009). Instead, the best-interest standard applies. See Steed
v. Steed, 877 So. 2d 602, 604 (Ala. Civ. App. 2003) ("When the trial court
makes an initial custody determination, neither party is entitled to a
presumption in his or her favor, and the 'best interest of the child'
standard will generally apply."); see also Ex parte Byars, 794 So. 2d 345,
347 (Ala. 2001).
"In A.B.[ v. J.B., 40 So. 3d 723 (Ala. Civ. App. 2009)], this court explained that, under Alabama law, 'siblings may be separated if the trial court concludes, based on sufficient evidence in the record, that the separation will serve the best interests of the children at issue.' 40 So. 3d at 729. We have also explained that 'the law more specifically requires a trial court to assess the best interests of each child individually when determining the custody arrangement that best suits
and, under the ore tenus rule, the trial court could have believed the mother's testimony instead of the testimony of the son. See, e.g., Shewbart v. Shewbart, 64 So. 3d 1080, 1089 (Ala. Civ. App. 2010) ("On appeal from ore tenus proceedings, this court presumes that the trial court properly found the facts necessary to support its judgment and prudently exercised its discretion.").
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the interests of each child.' E.F.B.[ v. L.S.T., 157 So. 3d 917, 925 (Ala. Civ. App. 2014)]."
Russell v. Self, 334 So. 3d 229, 235 (Ala. Civ. App. 2021).
"In making an initial award of custody based on the best interests of the children, a trial court may consider factors such as the ' "characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent." ' Graham v. Graham, 640 So. 2d 963, 964 (Ala. Civ. App. 1994) (quoting Ex parte Devine, 398 So. 2d 686, 696- 97 (Ala. 1981)). ... Other factors the trial court may consider in making a custody determination include 'the sex and age of the [children], as well as each parent's ability to provide for the [children's] educational, emotional, material, moral, and social needs.' Tims v. Tims, 519 So. 2d 558, 559 (Ala. Civ. App. 1987). The overall focus of the trial court's decision is the best interests and welfare of the children."
Steed, 877 So. 2d at 604.
Today, trial courts must determine whether separating a set of
siblings will serve the children's best interests by examining the relevant
factors. In weighing the factors, a court should "not focus solely on the
biological relationship between the children" but, rather, should focus on
"the actual interpersonal relationship between the children and how that
relationship will be affected by their separation." K.U. v. J.C., 196 So. 3d
265, 273 (Ala. Civ. App. 2015) (citing Alverson v. Alverson, 28 So. 3d 784,
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793 (Ala. Civ. App. 2009) (Moore, J., concurring in part and concurring in
the result in part)).
In his special writing in Alverson, Judge Moore, joined by Judge
Bryan, explained how courts should apply the best-interest standard
with a preference for keeping siblings together:
"[S]iblings may be separated if the trial court concludes, based on sufficient evidence in the record, that the separation will serve the best interests of the children at issue. In making that determination, the trial court should consider the factors traditionally cited by the appellate courts in this state, see Ex parte Devine, 398 So. 2d 686, 696-97 (Ala. 1981), but it should also consider factors such as the interrelationship of the children, the children's ages, the similarity of interests and activities of the children, whether the children previously resided with the custodial parent, the parents' involvement in the children's upbringing, the parents' emotional stability, the parents' previous lack of cooperation regarding visitation, the children's preference, parental agreement providing for siblings to be together frequently, and the location of the parents' residences. … [E]ach case should be decided on its own factual basis and … the decision should ultimately come down to employing that custody arrangement that serves the best interests of all the children involved."
Alverson, 28 So. 3d at 793 (Moore, J., concurring in part and concurring
in the result in part). We find Judge Moore's application of the best-
interest standard in cases of separated siblings using the factor list
proposed in Alverson to be appropriate. Therefore, we hereby adopt those
factors. We note, however, that the list of factors is not exhaustive.
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Turning to the analysis as it applies in the present case, we first
address the "characteristics of those seeking custody, including age,
character, stability, mental and physical health," the first factor listed in
Ex parte Devine, 398 So. 2d 686 (Ala. 1981). 10 Here, both parents are
relatively young and healthy, and both have stable housing and
employment. We note, though, that the father's job requires him to leave
in the early morning hours before the children leave for school, whereas
the mother's schedule allows her to report to work at 8:00 a.m.
The father specifically argues that the mother is not a suitable
custodian because emotional instability caused her to donate $22,000
from the son's savings account. However, there is no evidence that the
mother donated the money from the accounts in her children's names to
harm the children's futures; in fact, she testified that she donated a much
larger sum from a third account that was in her name only, which tends
to show that her donations were not made for the purpose of taking
money from the children. Additionally, although the father testified that
the savings accounts were intended for the children's future use,
10We also note that the parents' emotional stability is a factor listed
in Alverson.
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according to the mother, the children's names were on the accounts only
for the purpose of easy accessibility by the children in the event of her
death. Although the mother testified that she has suffered from anxiety
and depression, she also stated that she takes medication that
successfully treats these illnesses.
The father also specifically argues that the mother's history of
violence towards the son and the fact that she has left the daughter home
alone establish that the mother is not a suitable custodian for the
daughter. While the son's testimony that the mother had punched him
and had "pulled a gun" on him is concerning, there was conflicting
evidence on that point, and the trial court was not bound to accept the
son's testimony as true. Moreover, the son also testified that he wished
to maintain a relationship with the mother and even increase his contact
with her. There was no evidence indicating that any similar incidents
had occurred between the mother and the daughter. Likewise, although
the father points out that the mother had left the daughter at home alone,
according to the mother, there was always someone watching the
daughter while the mother was away.
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With respect to the interpersonal relationship between each child
and each parent, see Ex parte Devine, 398 So. 2d at 696-97, the evidence
indicates that the father has a good relationship with both children; on
the other hand, the mother has a good relationship with the daughter,
but she has a strained relationship with the son. The daughter testified
that she fears the mother due to the mother's treatment of the son and
stated that she wants to see the father more; however, the daughter also
testified that she liked living with the mother. The mother testified that
she and the daughter share a special bond. The son testified about
negative experiences he had had with the mother, but he also stated that
he wants to see the mother more, communicate with her more, and
improve their relationship through counseling. The mother also testified
that she desires to improve her relationship with the son, but she
admitted that the son would be better off living with the father.
We next address the sexes and ages of the children, the similarity
of their interests and activities, and the interpersonal relationship
between the siblings. See Ex parte Devine, 398 So. 2d at 696-97;
Alverson, 28 So. 3d at 793. At the time of the trial, the son was 13 years
old, and the daughter was 7 years old. The children lived together up
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until the parents' separation and appear to have a healthy and beneficial
relationship with each other. Although there was little evidence of
shared interests and activities, the siblings testified they got along well
and enjoyed their time together. According to the mother, the daughter
had missed the son since the children were separated.
With respect to whether either parent lacks the capacity or interest
to provide for the educational, emotional, material, moral, or social needs
of the children, see Ex parte Devine, 398 So. 2d at 696-97, there was
evidence, as discussed previously, indicating that the father is required
to leave for work at 3:30 a.m., which leaves him unable to personally
assist the children in preparing themselves for school. Although the
father stated that he could enlist the help of a babysitter in the mornings
if he were awarded custody of the daughter, the trial court could have
concluded that the father's work schedule would have a greater effect on
the daughter, a seven-year-old child, than it would on the son, who is a
teenager and can stay at home without a parent present and prepare
himself for school independently.
We next consider whether the children previously resided with the
custodial parent and the parents' involvement in the children's
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upbringing. See Alverson, 28 So. 3d at 793. Here, because this case
involves initial awards of custody and the parties were married, the
children lived with both parents until the parties' separation. The
mother testified that she had been the "involved parent" and that she had
been the disciplinarian while the father had been the children's friend.
However, the father testified that he had also taken an active role in
rearing the children.
We next turn to the parents' cooperation concerning visitation,
whether there is parental agreement about allowing the siblings to be
together frequently, and the location of the parents' residences. See
Alverson, 28 So. 3d at 793. Here, there was abundant evidence indicating
that the parties could not cooperate for the sake of visitation. Although
there had been several attempts at fashioning a pendente lite visitation
agreement, problems with visitation persisted. We note, however, that
the trial court provided a mandatory visitation schedule to take effect if
the parents fail to agree on a schedule; the default schedule requires that
the children spend every weekend, every holiday, and all summer
together, alternating living at each parents' home. Therefore, even in the
absence of an agreement, there are default provisions providing for
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frequent sibling contact. The location of the parents' residences,
approximately 45 minutes apart by car, makes it feasible for the children
to maintain frequent contact with each other, and both parents expressed
their commitment to participate in counseling to aid them in coparenting
more effectively.
Finally, we address the children's preferences. See Alverson, 28 So.
3d at 793. " ' "The preference of the child, regardless of h[is] age and
maturity, is not determinative of the issue of custody but is merely a
factor the trial court may consider in reaching its decision." ' " Russell v.
Self, 334 So. 3d 229, 235 (Ala. Civ. App. 2021) (quoting Bishop v. Knight,
949 So. 2d 160, 166 (Ala. Civ. App. 2006), quoting in turn Glover v.
Singleton, 598 So. 2d 995, 996 (Ala. Civ. App. 1992)). With respect to this
factor, the father argues that the daughter testified that she preferred to
live with the father. We note, however, that the testimony of the
daughter, a young child, was equivocal, and she later changed her
testimony, stating that she wanted to split her time equally between both
parents. The daughter also admitted that her initial preference for the
father's home was because of the number of her friends that lived near
the father's home. The evidence also indicated that staying with the
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mother allowed the daughter to continue attending the after-school
program near the mother's residence, which the daughter stated she
enjoyed.
Conclusion
Considering the foregoing evidence as it relates to the relevant
factors, we conclude that there was sufficient evidence that the trial
court's judgment awarding custody of the daughter to the mother and
custody of the son to the father was in the best interests of the children.
We specifically note that the mother testified that she had been the
involved parent and that, although her relationship with the son, a
teenaged male, was strained, the mother and the young daughter, who
are of the same sex, share a special bond. Moreover, we note that the
daughter enjoyed living with the mother and attending the after-school
program near the mother's residence. Finally, the evidence indicated
that the father was unable to care for the daughter in the early morning
hours because of his work schedule. Although there was also evidence
presented that weighed against the award of custody of the daughter to
the mother and against the separation of the siblings, this court will not
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reweigh the evidence. Based on the foregoing, we affirm the trial court's
judgment.
AFFIRMED.
Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.