K.T.D. v. K.W.P.

119 So. 3d 418, 2012 WL 5458549, 2012 Ala. Civ. App. LEXIS 305
CourtCourt of Civil Appeals of Alabama
DecidedNovember 9, 2012
Docket2110531
StatusPublished
Cited by1 cases

This text of 119 So. 3d 418 (K.T.D. v. K.W.P.) 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
K.T.D. v. K.W.P., 119 So. 3d 418, 2012 WL 5458549, 2012 Ala. Civ. App. LEXIS 305 (Ala. Ct. App. 2012).

Opinions

PER CURIAM.

K.T.D. (“the mother”) appeals from a judgment of the Cleburne Circuit Court (“the trial court”) that modified her custodial rights to K.P. (“the child”). K.W.P. (“the father”) cross-appeals from the same judgment insofar as the trial court failed to modify his child-support obligation.

Procedural History

The child was born in March 2007 when the mother was 16 years old and the father was 21 years old. The record indicates that the trial court entered a judgment on or about December 4, 2007, that adjudicated the father as the father of the child, awarded sole custody of the child to the mother, awarded the father “standard” visitation with the child after a “phase-in” period, and ordered the father to pay $548 a month in child support to the mother. Neither party was ordered to provide health insurance for the child, but the parties were required to equally share the cost of “noncovered” medical expenses for the child. The record indicates that the December 2007 judgment stated that the parties “shall communicate regarding the ... child through the [fatherj’s mother and the [motherj’s mother.” The father’s mother (“the paternal grandmother”) and the mother and her mother (“the maternal grandmother”) were the only individuals authorized to exchange custody of the child, which was to take place at the Heflin Police Department. The trial court also ordered the child’s surname to be changed from the mother’s surname at the time, T., to the father’s surname, P.

On July 26, 2010, the mother filed a petition to modify the December 2007 judgment, and she sought: (1) specific and reasonable telephone visitation with the child while the father was exercising visitation, (2) an order requiring the father to provide her with advance written notice of his intention to travel with the child for distances greater than 60 miles, (3) an order requiring the father to notify her if the child stays anywhere other than the father’s home overnight, (4) an order requiring the father to notify her if the child requires medical treatment during the father’s visitation periods, (5) an order requiring the father to notify her if someone else is caring for the child during his visitation periods, (6) the “right of first refusal” if the father requires child care for more than 3 hours during his visitation periods, (7) removal of the requirement in the December 2007 judgment that the parties communicate through the maternal grandmother and the paternal grandmother, and (8) an order modifying the father’s visitation rights with the child.

The father subsequently filed an answer and a counterclaim to modify the December 2007 judgment. The father sought sole custody of the child or, in the alternative, a modification of his visitation rights so that he had the child “50% of the time.” The father also sought an order requiring him to pay health insurance for the child and a corresponding modification of his child-support obligation. Finally, the father sought to hold the mother in contempt for her failure to change the child’s surname to the father’s surname or to use the father’s surname.

The trial court conducted an ore tenus hearing over two days — January 30, 2012, [421]*421and February 2, 2012. On February 7, 2012, the trial court entered a judgment modifying the December 2007 judgment by awarding the parties joint legal and joint physical custody of the child. The trial court found that there had been a material change in circumstances that warranted a modification of custody, that the change in custody would materially promote the child’s best interest, and that the benefits of the change in custody would more than offset the disruptive effects caused by the change. Specifically, the trial court found that the parties had been unable to communicate with one another, that the parties cannot co-parent the child without communicating with one another about the child, that the mother had “used very poor judgment in her behavior towards the [father] and his family,” that the mother’s behavior had been detrimental to the child, and that the mother had attempted to interfere with the relationship between the child and the father.

The father was awarded physical custody of the child during weeks containing the first, third, and fifth weekends of each month from Wednesday at 6:00 p.m. until Monday at 9:00 a.m. During the weeks that the father did not have a weekend custodial period, he was awarded custody of the child from Tuesday at 6:00 p.m. until Thursday at 9:00 a.m. The father was awarded four weeks of physical custody in the summer, one week during Christmas, and other specific holiday visitation. The trial court, in its lengthy judgment, set forth numerous provisions in an attempt to facilitate communication between the mother and the father, including an order that the mother, the father, and the child attend family counseling. The trial court held the mother in contempt for willfully failing to use the child’s surname as ordered in the December 2007 judgment. The judgment did not modify the father’s child-support obligation.

On February 20, 2012, the mother filed a timely postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P., arguing that the father had failed to meet the burden of modifying physical custody of the child pursuant to Ex parte McLendon, 455 So.2d 863 (Ala.1984). On February 21, 2012, the father filed a timely post-judgment motion requesting, among other things, that the trial court order him to be responsible for the child’s health-insurance costs and to modify his child-support obligation in light of the new custodial arrangement and the evidence that he was paying the cost of the child’s health insurance.

On March 5, 2012, the trial court entered an order amending its judgment to provide the father with custody of the child on Father’s Day and to remove the requirement that the maternal grandmother and the paternal grandmother “be involved in arranging physical custody or placement of the child with the parties.” The trial court denied all other postjudgment requests for relief. The mother timely appealed, and the father timely filed a cross-appeal.

Issues

In her appeal, the mother argues that the trial court erred by concluding that the father had met his burden of proving that there had been a material change in circumstances sufficient to warrant a modification of custody pursuant to Ex parte McLendon, supra. In his cross-appeal, the father argues that the trial court erred by failing to modify his child-support obligation.

Facts

At the time of trial, the mother was 21 years old, the father was approximately 25 years old, and the child was 4 years old. The record indicates that the mother and the father did not speak to each other, or [422]*422even have each other’s telephone numbers, from before the child was born in 2007 until early summer 2010. After the child reached her third birthday in March 2010, the father was able to exercise a full week of visitation with the child for the first time in the summer of 2010, so the mother began contacting the father in order to speak to the child while she was visiting the father. Both parties agreed that the child did not like to talk on the telephone before this point because of her age.

The record indicates that there is a history of animosity between the father and the mother and her family. In 2007, the father was convicted of third-degree assault and harassing communications.

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Cite This Page — Counsel Stack

Bluebook (online)
119 So. 3d 418, 2012 WL 5458549, 2012 Ala. Civ. App. LEXIS 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ktd-v-kwp-alacivapp-2012.