K.U. v. J.C.

196 So. 3d 265, 2015 Ala. Civ. App. LEXIS 232, 2015 WL 5918742
CourtCourt of Civil Appeals of Alabama
DecidedOctober 9, 2015
Docket2140140
StatusPublished
Cited by13 cases

This text of 196 So. 3d 265 (K.U. v. J.C.) 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.U. v. J.C., 196 So. 3d 265, 2015 Ala. Civ. App. LEXIS 232, 2015 WL 5918742 (Ala. Ct. App. 2015).

Opinion

On Application for Rehearing

MOORE, Judge.

This court’s opinion of July 17, 2015, is withdrawn, and the following is substituted therefor.

K.U. (“the maternal grandmother”) appeals from a judgment of the Montgomery Juvenile Court (“the juvenile' court”) awarding custody of S.C. (“the child”) to J.C. (“the father”) and R.C. (“the stepmother”). We reverse and remand.

[268]*268 Procedural History

On January 29, 2008, the juvenile court entered a consent judgment (“the 2008 Montgomery judgment”) awarding the maternal grandmother and T.W. (“the paternal grandmother”) joint legal and physical custody of the child, whose date of birth is December 19, 2005. On July 1, 2008, the Autauga Juvenile Court entered a judgment (“the 2008 Autauga judgment”) in a dependency case awarding the maternal grandmother and the paternal grandmother joint legal and physical custody of F.C., the child’s sister, whose date of birth is November 22, 2004. On February 15, 2013, the father and the stepmother filed, in the juvenile court, a petition to modify the custody of the child and F.C. On March 28, 2013, the maternal grandmother filed an answer to the petition. Subsequently, the juvenile court transferred the petition to modify the physical custody of F.C. to the Autauga Juvenile Court. In April 2014, the father consented to a judgment being entered by the Autauga Juvenile Court pursuant to which the custody of F.C. was awarded to the maternal grandmother, and the father’s custody-modification petition as to'F.C. was dismissed. After a trial, the juvenile court entered a judgment awarding custody of the child to the father and the stepmother. On November 12, 2014, the maternal grandmother filed her notice of appeal to this court.

Discussion

On appeal, the maternal, grandmother primarily argues that the juvenile court did not receive sufficiént evidence to sustain its judgment.1 • .

‘“Where a parent has transferred to another [whether it be a nonparent or the other parent], the custody of his [or her] infant child by fair agreement, which has been acted upon by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless he [or she] ean show that a change of the custody will materially promote, his [or her] child’s welfare.’ ”

Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947) (quoting Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687 (1898)). To meet that burden, the party petitioning for modification must prove to the satisfaction of the trial court (1) that the circumstances upon which the' original judgment was based have changed, (2) that he or she is fit to act as a custodian for the child, and (3) that ‘“the positive good brought about by the modification ... more than offset[s] the inherently disruptive effect caused by uprooting the child.’ ” Ex parte McLendon, 455 So.2d 863, 865 (Ala.1984) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)). On appeal, this court presumes the correctness of- a judgment based upon evidence presented ore tenus. Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

“ ‘[W]e will not reverse [the 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 [269]*269substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.’ ”

Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). However, this court reviews the' interpretation and application of the McLendon standard, which involve pure questions of law, de novo. Gallant v. Gallant, 184 So.3d 387, 401 (Ala.Civ.App.2014).

I. Material Change of Circumstances

The maternal grandmother first argues that the father did not present any evidence of a material change in circumstances. ’

“The doctrine of res judicata provides that a final judgment entered by a court of competent jurisdiction' binds the parties from relitigating the issues decided therein. See Hughes v. Martin, 533 So.2d 188 (Ala.1988). Applied strictly, that doctrine would prevent repeated .litigation over the custody of a child; however, as early as 1858, our supreme court recognized that, because of the shifting nature of the needs of a growing child, a court of equity should be allowed to redetermine custody in appropriate cases. See Cornelius v. Cornelius, 31 Ala. 479 (1858). In keeping with the rationale behind the doctrine of res judi-cata, 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). It further held, however, that, 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. See Pearce v. Pearce, 136 Ala. 188, 190, 33 So. 883, 884 (1903). Hence, the law became that a prior custody judgment could be modified based only on a .material change of circumstances. See Wren v. Stutts, 258 Ala. 421, 422, 63 So.2d 370, 371 (1953).”

Gallant v. Gallant, 184 So.3d at 392-93.

The evidence in the record shows that, at the time of the entry of the 2008 Montgomery judgment, the father was 22 years old, was unemployed, was undergoing a divorce from the mother of the child, and was living with the paternal grandmother,. The father agreed, at that time, that he was unable independently to support the child and F;C., so he consented to transfer their custody to his mother and the maternal grandmother, jointly, for the best interests of those children. The parties contemplated -that the custody arrangement would be‘temporary until either the father or the mother stabilized and “got back on [his or her] feet” sufficiently to care for the child and F.C.

Two months after the juvenile court entered the 2008 Montgomery judgment, the child and F.C., who were then two and three years old, respectively, moved into the home of the maternal grandmother, which is located in Prattville, with the paternal grandmother’s agreement. Only days later, the father moved from the paternal grandmother’s home to Eatonton, Georgia, to find work. Thereafter, the maternal grandmother exercised de facto custody of the children, with , the father regularly communicating with the children over the telephone and visiting with the children every other weekend, in his home or in the paternal grandmother’s home, apparently in accordance with the terms of [270]*270the 2008 Montgomery judgment and the 2008 Autauga judgment.

In 2009, after the father had obtained steady employment and had begun a relationship with' the stepmother in Georgia, the father began soliciting the maternal grandmother and the paternal grandmother to regain custody of the child and F.C.

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Bluebook (online)
196 So. 3d 265, 2015 Ala. Civ. App. LEXIS 232, 2015 WL 5918742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ku-v-jc-alacivapp-2015.