Lord v. Lord

891 So. 2d 898, 2004 Ala. Civ. App. LEXIS 340, 2004 WL 914656
CourtCourt of Civil Appeals of Alabama
DecidedApril 30, 2004
Docket2021071
StatusPublished
Cited by2 cases

This text of 891 So. 2d 898 (Lord v. Lord) 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
Lord v. Lord, 891 So. 2d 898, 2004 Ala. Civ. App. LEXIS 340, 2004 WL 914656 (Ala. Ct. App. 2004).

Opinion

YATES, Presiding Judge.

Forrest Jay Lord (“the father”) and Wendy Kaye Lord (“the mother”) married on April 26, 1990. The parties had two children, one born in October 1989 and the other born in July 1993. In August 1997, the father sued the mother for a divorce, alleging that she had abandoned the family when she failed to return to the parties’ home following a trip to Maine in July 1997. The father alleged, in an affidavit filed along with the divorce petition, that the mother did, in fact, return on one occasion wherein she attempted, in the middle of the night, to forcibly remove the children from the marital home. The father requested that he be awarded custody of the children; that the court require the mother to pay child support; and that the court equitably divide the parties’ property. On August 20, 1997, the father was awarded temporary custody of the parties’ children. On November 14, 1997, the mother, acting pro se, answered and counterclaimed, denying that she had attempted to remove the children from the marital home and requesting that she be awarded physical custody of the children. The mother alleged that she had returned to Alabama on six occasions “to resolve [the parties’] problems and have the family back together for the children’s sake.”

The mother failed to appear for a hearing on November 26, 1997.’ On May 20, 1998, the trial court entered a default judgment divorcing the parties and awarding the father the marital home. The mother was ordered to pay $326 per month in child support, and she was awarded no visitation with the parties’ children. Oh July 16, 1998, the mother filed an appeal with this court. Because her brief failed to comply with the Rule 28, Ala. R. App P., this court was precluded from considering the merits of her appeal and affirmed the trial court’s judgment, without an opinion. Lord v. Lord (No. 2971203, Jan. 8, 1999), 776 So.2d 221 (Ala.Civ.App.1999) (table).

On September 9, 2002, the mother petitioned for custody, alleging that the father was “often” intoxicated and that hé smoked marijuana in front of the children. She also contended that the father both physically and mentally abused the children. On October 16, 2002, the father answered, denying the mother’s allegations. He also filed a counterclaim, contending that he was the proper parent to have custody of the parties’ children; requesting that the trial court calculate and order the mother to pay her child-support arrearage; and requesting that the mother be ordered to pay attorney fees. On December 11, 2002, the father filed a contempt motion and requested a hearing. Hé averred that the mother should be held in contempt for ’failing to pay the court-ordered child support and her portion of the children’s medical expenses not covered by insurance.

On January 2, 2003, following an ore tenus proceeding, the trial court held the mother in contempt for failure to pay $16,952 in child support. On May 2, 2003, at the close of an ore tenus proceeding, the trial court rendered its decision to transfer custody from the father to the mother; that decision is the basis of the father’s appeal to this court. On May 30, 2003, the father filed a “motion to reconsider” or, in the alternative, for a new trial, contending that the evidence was insufficient under Ex parte McLendon, 455 So.2d 863 (Ala.1984), to justify a change in custody. The father further requested that the court appoint a guardian ad litem to represent the children. On June 11, 2003, the trial court denied the father’s motion for a new trial. The father also filed on May 30, 2003, a motion to stay the trial’s court order transferring custody, and on June [900]*90025, 2003, the father requested an emergency hearing regarding his motion to stay. On July 10, 2003, the trial court denied the father’s motion to alter, amend, or vacate.

The mother, on August 13, 2003, filed a complaint for protection from abuse in a district court in Maine. On August 22, 2003, the father filed an instanter motion for contempt in the trial court, contending that since the transfer of custody the mother had failed to return the children to Alabama for his court-ordered visitation. He alleged in his motion for contempt that the mother’s abuse complaint filed in Maine was a “fraud” and that it was an attempt on her part to prevent his court-ordered visitation. On September 8, 2003, the mother answered the father’s August 22, 2003, motion for contempt alleging that the father had threatened in a telephone conversation to harm the children when they returned to Alabama. The mother contended that she had refused to allow the father visitation in order to protect the children. Also, on September 8, 2003, the mother filed a motion to temporarily suspend the father’s visitation.

On August 11, 2003, the father appealed to this court from the trial court’s order transferring custody to the mother. The father contends that the mother failed to meet the burden of proof set forth in Ex parte McLendon, supra. Specifically, he contends that, at best, the mother’s testimony revealed only that she might be able to provide the same type of home environment that he had provided over the last six years for the parties’ children. Furthermore, the father contends that most of the testimony concerning his actions were “rooted in the past” and that there was little evidence concerning the mother’s living arrangements.

In a child-custody-modification case where a noncustodial parent seeks to modify a judgment granting custody to the other parent, the noncustodial parent must show that a change in custody will materially promote the child’s best interest and welfare. Ex parte McLendon, supra. The noncustodial parent must also prove that the positive good brought about by the proposed change in custody would more than offset the inherently disruptive effect caused by uprooting the child. Butts v. Startley, 600 So.2d 310 (Ala.Civ.App.1992). A trial court’s decision in a child-custody proceeding is presumed correct; however, that decision may be reversed on appeal if it amounts to an abuse of discretion' or is unsupported by the evidence so as to be plainly and palpably wrong. E.M.C. v. K.C.Y., 735 So.2d 1225 (Ala.Civ.App.1999).

A police officer testified that the father had been arrested in 2002 on three different occasions for driving under the influence of alcohol and that two of those arrests had resulted in convictions. The officer stated that the children were not with the father at the time, of the arrests and that no evidence of drug possession was found during the arrests.

Another police officer testified that in December 2001 she spoke with the parties’ older child concerning an allegation of abuse. The officer stated that the child stated that the father had stabbed her arm with a fork after accusing her of “smacking” her food while eating. The officer testified that the child reported to her that the father drinks excessively, smokes marijuana, and is verbally abusive. The officer stated that she reported her findings to the Alabama Department of Human Resources (“DHR”) and that DHR investigated the incident, but she was not aware of the results of that investigation.

The father testified that since the parties’ divorce in 1998 he has had custody of the children, who, at the time of the fa[901]*901ther’s testimony, were ages 13 and 9. He testified that he drinks on occasion and that within a 7-day period he consumes between 12 and 18 beers. He admitted that his driver’s license was currently suspended and that he had driven on occasion with a suspended license.

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Bluebook (online)
891 So. 2d 898, 2004 Ala. Civ. App. LEXIS 340, 2004 WL 914656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lord-v-lord-alacivapp-2004.